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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 15, 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. |
The disclosure under Item 8.01
of this Current Report on Form 8-K is incorporated herein by reference.
Item 2.03 | Creation of a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosure under Item
8.01 of this Current Report on Form 8-K is incorporated herein by reference.
Completion
of Debt Offering
On
September 15, 2023, Black Hills Corporation (the “Company” or “we”) issued and sold an aggregate
principal amount of $450 million of its 6.150% Notes due 2034 (the “Notes”). The
Notes were issued and sold pursuant to the previously disclosed Underwriting Agreement entered into on September 6, 2023 by the Company
and the representatives of the several underwriters named in Schedule A thereto (the “Underwriting Agreement”).
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. We intend to
apply the net proceeds from our sale of the Notes, after payment of the costs and expenses of the offering and together with available
cash, to repay, redeem or otherwise retire all $525 million aggregate principal amount outstanding of our 4.250% notes due November 30,
2023. Any portion of the net proceeds not so used may be used for general corporate purposes, which may include, among other things,
capital expenditures, acquisitions, investments, other business opportunities and repayment or refinancing of other outstanding debt.
Copies
of opinions related to the Notes are attached hereto as exhibits and are expressly incorporated by reference herein and into the Registration
Statement.
Terms of the
Notes
The
Notes were issued pursuant to the Indenture dated as of May 21, 2003 (the “Base Indenture”), between the Company and
Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association), as trustee (the “Trustee”),
as previously supplemented and as further supplemented by a Twelfth Supplemental Indenture entered into by the Company on September 15,
2023 (the “New Supplemental Indenture” and together with the Base Indenture, the “Indenture”).
The Notes bear interest at a rate per annum of 6.150%, payable semi-annually in arrears on May 15 and November 15 of each year, beginning
on May 15, 2024. The stated maturity for the Notes is May 15, 2034. The Notes are the unsecured senior obligations of the Company and
will rank equally with all of our existing and future unsecured and unsubordinated indebtedness and senior to all of our existing and
future subordinated indebtedness.
The
Indenture provides for customary events of default (subject in certain cases to customary grace and cure periods), which include among
other things nonpayment, breach of covenants in the Indenture and certain events of bankruptcy and insolvency. If an event of default
occurs and is continuing with respect to the Notes, the Trustee or holders of not less than 25% in aggregate principal amount of the
outstanding Notes may declare the principal amount of the Notes, plus all accrued and unpaid interest, if any, to be immediately due
and payable. These events of default are subject to a number of important qualifications, limitations and exceptions that are described
in the Indenture.
Copies
of the New Supplemental Indenture and the form of the Notes are attached hereto as Exhibits 4.1 and 4.2 and are 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 15, 2023
Exhibit 4.1
Execution Version
BLACK HILLS CORPORATION
AND
COMPUTERSHARE TRUST COMPANY, N.A.,
AS TRUSTEE
TWELFTH SUPPLEMENTAL INDENTURE
DATED AS OF
SEPTEMBER
15, 2023
$450,000,000 6.150%
NOTES DUE 2034
TWELFTH SUPPLEMENTAL INDENTURE dated as of September
15, 2023 (this “Supplemental Indenture”), to the Indenture dated as of May 21, 2003 (the “Base Indenture”
and, as supplemented by the First Supplemental Indenture dated as of May 21, 2003, the Second Supplemental Indenture dated as of May 14,
2009, the Third Supplemental Indenture dated as of July 16, 2010, the Fourth Supplemental Indenture dated as of November 19, 2013,
the Fifth Supplemental Indenture dated as of January 13, 2016, the Sixth Supplemental Indenture dated as of August 19, 2016, the Seventh
Supplemental Indenture dated as of August 27, 2018, the Eighth Supplemental Indenture dated as of October 3, 2019, the Ninth Supplemental
Indenture dated as of June 17, 2020, the Tenth Supplemental Indenture dated as of August 26, 2021, the Eleventh Supplemental Indenture
dated as of March 7, 2023 and as further supplemented, amended or modified, the “Indenture”), by and between BLACK
HILLS CORPORATION, a South Dakota corporation (the “Company”), and COMPUTERSHARE TRUST COMPANY, N.A., a national banking
association organized and existing under the laws of the United States of America, as trustee (as successor to Wells Fargo Bank, National
Association, the prior trustee, and LaSalle Bank National Association, the original trustee) (the “Trustee”).
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders of the Notes (as defined below):
WHEREAS, the Company and the Trustee have duly authorized
the execution and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities (the “Securities”)
to be issued in one or more series as in the Base Indenture provided;
WHEREAS, the Company desires and has requested the
Trustee to join the Company in the execution and delivery of this Supplemental Indenture in order to establish and provide for the issuance
by the Company of a series of Securities designated as its 6.150% Notes due 2034 in an initial aggregate principal amount of $450,000,000,
substantially in the form attached hereto as Exhibit A (the “Notes”) on the terms set forth herein;
WHEREAS, Section 3.1 of the Base Indenture provides
that a supplemental indenture may be entered into by the Company and the Trustee for such purpose provided certain conditions are met;
WHEREAS, the conditions set forth in the Base Indenture
for the execution and delivery of this Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to,
the Base Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase
and acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee, for the equal and
ratable benefit
of the Holders, that the Indenture is supplemented and amended, to the extent expressed herein, as follows:
ARTICLE
I
Scope of Supplemental Indenture; General
This Supplemental Indenture supplements and, to the
extent inconsistent therewith, replaces the provisions of the Base Indenture, to which provisions reference is hereby made.
The changes, modifications and supplements to the
Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes, which
shall initially be in an aggregate principal amount of $450,000,000, the amount of which may be increased pursuant to an Officers’
Certificate in accordance with this Supplemental Indenture, and shall not apply to any other Securities that may be issued under the Indenture
unless a supplemental indenture with respect to such other Securities specifically incorporates such changes, modifications and supplements.
Pursuant to this Supplemental Indenture, there is hereby created and designated a series of Securities under the Indenture entitled “6.150%
Notes due 2034.” The Notes shall be in the form of Exhibit A hereto.
In the event that the Company shall issue and the
Trustee shall authenticate any Notes issued under this Supplemental Indenture subsequent to the Issue Date (such Notes, “Additional
Securities”), the Company shall use its best efforts to obtain the same “CUSIP” number for such Additional Securities
as is printed on the Notes outstanding at such time; provided, however, that if any Additional Securities issued under this
Supplemental Indenture subsequent to the Issue Date are determined not to be fungible with the Notes issued on the Issue Date for U.S.
federal income tax purposes, the Company will obtain a “CUSIP” number for such Additional Securities that is different than
the “CUSIP” number printed on the Notes issued on the Issue Date. If a different “CUSIP” number is obtained as
contemplated herein, all Notes issued under this Supplemental Indenture and Outstanding shall nonetheless vote and consent together on
all matters as one series of Securities under the Indenture.
ARTICLE
II
Certain Definitions
The following terms have the meanings set forth below
in this Supplemental Indenture. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Base Indenture.
To the extent terms defined herein differ from the Base Indenture, the terms defined herein shall govern.
“Assets” of any Person means the
whole or any part of its business, property, assets, cash and receivables.
“Change of Control” means the
occurrence of any of the following: (i) the consummation of any transaction (including any merger or consolidation) the result of
which is
that any person becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of shares representing more than 50% of the voting power of the then
outstanding Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated,
exchanged or changed, (ii) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger
or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the Subsidiaries
taken as a whole to any person other than the Company or one of the Subsidiaries, (iii) the merger or consolidation of the Company
with or into any person or the merger or consolidation of any person with or into the Company, in any such event pursuant to a transaction
in which any of the outstanding shares of the Voting Stock of the Company or the Voting Stock of such other person is converted into
or exchanged for cash, securities or other property, other than any such transaction in which the shares of Voting Stock of the Company
outstanding immediately prior to such transaction constitute, or are converted into or exchanged for, shares representing more than 50%
of the voting power of the Voting Stock of the resulting or surviving person or any direct or indirect parent company of the resulting
or surviving person immediately after giving effect to such transaction, or (iv) the adoption of a plan providing for the liquidation
or dissolution of the Company. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control under clause (i)
above if (a) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (b)(x) the direct or indirect
holders of the Voting Stock of such holding company immediately following such transaction are substantially the same as the holders
of the Company’s Voting Stock immediately prior to such transaction or (y) immediately following such transaction no person (other
than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of shares representing
more than 50% of the voting power of the Voting Stock of such holding company. The term “person,” as used in this definition,
has the meaning given thereto in Section 13(d)(3) of the Exchange Act.
“Change of Control Offer” has
the meaning specified in Section 4.2.
“Change of Control Payment” has
the meaning specified in Section 4.2.
“Change of Control Payment Date”
has the meaning specified in Section 4.2.
“Change of Control Triggering Event”
means the occurrence of both a Change of Control and a Rating Event.
“Consolidated Capitalization”
means, as of any date of determination, the sum obtained by adding (i) Consolidated Shareholders’ Equity; (ii) Consolidated
Indebtedness (exclusive of any that is due and payable within one year of the date such sum is determined); and, without duplication,
(iii) any preference or preferred stock of the Company or any Consolidated Subsidiary that is subject to mandatory redemption or
sinking fund provisions.
“Consolidated Indebtedness” means,
as of any date of determination, total indebtedness as shown on the consolidated balance sheet of the Company and the Consolidated Subsidiaries.
“Consolidated Shareholders’ Equity”
means, as of any date of determination, the total Assets of the Company and the Consolidated Subsidiaries less all liabilities of the
Company and its Consolidated Subsidiaries that would, in accordance with generally accepted accounting principles in the United States
(as in effect on the date of this Supplemental Indenture), be classified on a balance sheet as liabilities, including (i) indebtedness
secured by property of the Company or any of the Consolidated Subsidiaries whether or not the Company or such Consolidated Subsidiary
is liable for the payment of such indebtedness unless, in the case that the Company or such Consolidated Subsidiary is not so liable,
such property has not been included among the Assets of the Company or such Consolidated Subsidiary on such balance sheet, (ii) deferred
liabilities and (iii) indebtedness of the Company or any of the Consolidated Subsidiaries that is expressly subordinated in right and
priority of payment to other liabilities of the Company or such Consolidated Subsidiary. As used in this definition, “liabilities”
includes preference or preferred stock of the Company or any Consolidated Subsidiary only to the extent of any such preference or preferred
stock that is subject to mandatory redemption or sinking fund provisions.
“Consolidated Subsidiary” means,
at any date, any Subsidiary the financial statements of which under generally accepted accounting principles in the United States (as
in effect on the date of this Supplemental Indenture) would be consolidated with those of the Company in its consolidated financial statements
as of such date.
“DTC” means The Depository Trust
Company.
“Event of Default” has the meaning
specified in Section 5.1.
“Fitch” means Fitch Ratings, Inc.,
and its successors.
“H.15” has the meaning assigned
to such term in the definition of Treasury Rate.
“H.15 TCM” has the meaning assigned
to such term in the definition of Treasury Rate.
“Holder” means the Person in whose
name a Note is registered in the books of the Security Registrar for the Notes.
“Indebtedness” means (i) all indebtedness,
whether or not represented by bonds, debentures, notes or other securities, incurred, created or assumed by the Company or any Subsidiary
for the repayment of money borrowed, (ii) all indebtedness for money borrowed secured by a lien upon property owned by the Company or
any Subsidiary, regardless of whether the Company or such Subsidiary has assumed or otherwise become liable for the payment of such indebtedness
for money borrowed, and (iii) all indebtedness of others for money borrowed that is guaranteed as to payment of principal or interest
by the Company or any Subsidiary or in effect guaranteed by the Company or such Subsidiary through a contingent agreement to purchase
such indebtedness or through any “keep-well” or similar agreement to be directly or indirectly liable for the repayment of
such indebtedness.
“Investment Grade Rating” means
a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent)
by S&P,
and the equivalent investment grade credit rating from any replacement rating agency or agencies selected by the Company.
“Issue Date” means the date on
which the Notes are originally issued under this Supplemental Indenture.
“Moody’s” means Moody’s
Investors Service, Inc., and its successors.
“Par Call Date” means February
15, 2034.
“Rating Agencies” means (i) each
of Fitch, Moody’s and S&P and (ii) if any two or more of Fitch, Moody’s or S&P ceases to rate the Notes or fails to
make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical
rating organization” within the meaning of Section 3(a)(62) of the Exchange Act, selected by the Company (as certified by a
Board Resolution) as a replacement agency for Fitch, Moody’s or S&P, as the case may be.
“Rating Event” means the rating
of the Notes is lowered by at least two of the Rating Agencies and the Notes are rated below an Investment Grade Rating by at least two
of the Rating Agencies, on any day during the period (which period will be extended so long as the rating of the Notes is under publicly
announced consideration for a possible downgrade by any of the Rating Agencies) commencing 60 days prior to the first public notice
of the occurrence of a Change of Control or the intention of the Company to effect a Change of Control and ending 60 days following the
consummation of such Change of Control.
“Remaining Life” has the meaning
assigned to such term in the definition of Treasury Rate.
“S&P” means S&P Global
Ratings, a division of S&P Global Inc., and its successors.
“Subsidiary” means a corporation,
limited partnership, limited liability company or trust in which more than 50% of the outstanding Voting Stock is owned, directly or indirectly,
by the Company and/or by one or more other Subsidiaries.
“Treasury Rate” means, with respect
to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company
after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of
Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for
the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors
of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication)
(“H.15”) under the caption “U.S. government securities — Treasury constant maturities — Nominal”
(or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as
applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the
Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal
to the Remaining Life, the two yields — one yield corresponding to the Treasury constant maturity on H.15 immediately
shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life — and
shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result
to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining
Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable
Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years,
as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption
Date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual
equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such Redemption Date of the
United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United
States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date
equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the
Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there
are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting
the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United
States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury
securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the
semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices
(expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security,
and rounded to three decimal places.
“Voting Stock” means, with respect
to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, stock, partnership
interests or any other participations, rights, warrants, options or other interests in the nature of an equity interest that ordinarily
(without regard to the occurrence of any contingency) has voting power for the election of directors, managers or trustees of such person,
whether at all times or only so long as no senior class of stock has that voting power by reason of any contingency.
“Trustee” means the party named
as such above until a successor replaces such party in accordance with the applicable provisions of the Indenture and thereafter means
the successor serving hereunder.
ARTICLE
III
The Notes
Section 3.1
Payments of Principal and Interest.
The Notes shall bear interest from and including
September 15, 2023, to but excluding the date of Maturity, at the rate of 6.150% per annum. The Notes shall mature at 100% of their principal
amount on May 15, 2034. The Company shall pay interest on the Notes semi-annually on May 15 and November 15 of each year, commencing May
15, 2024, to the Person in whose name any such Note or any predecessor Note is registered in the Security Register at the close of business
on the May 1 or November 1 preceding such Interest Payment Date (each, a “Regular Record Date”).
The Company initially authorizes the Trustee to act
as Paying Agent and Security Registrar for the Notes.
Section 3.2
Optional Redemption.
Prior to the Par Call Date, the Company may redeem
the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to the greater of:
(1) (a) the sum of the present values of the remaining
scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date)
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 30 basis points less
(b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Notes to be
redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption
Date.
On or after the Par Call Date, the Company may
redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price equal to 100% of the principal amount
of the Notes being redeemed, plus accrued and unpaid interest thereon to the Redemption Date.
The Company’s actions and determinations
in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption shall be mailed or electronically
delivered (or otherwise transmitted in accordance with the Depositary’s procedures) at least 10 days but not more than 60 days before
the Redemption Date to each Holder of Notes to be redeemed.
In the case of a partial redemption, selection
of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee deems appropriate and fair, subject to
DTC customary procedures. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in
part only, the notice of redemption that
relates to the Note will state the portion of the principal amount of the Note to be redeemed.
A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the Holder of the Note upon
surrender for cancellation of the original Note (or for global notes, through book-entry transfer). For so long as the Notes are held
by DTC (or another Depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the DTC.
For the avoidance of doubt, in the event of any
conflict between this Section 3.2 and Article XI of the Base Indenture, this Section 3.2 shall govern.
Section 3.3
No Sinking Fund.
The Notes shall not be entitled to the benefit of
any sinking fund.
Section 3.4
Book Entry, Delivery and Form.
The Notes shall initially be issued in the form of
one or more Global Securities (the “Global Notes”). The Global Notes shall initially be deposited on or about the Issue
Date with, or on behalf of, DTC (the “Depositary”) and registered in the name of Cede & Co., as nominee of the
Depositary.
Section 3.5
Form of Legend for Global Note.
In addition to the legend set forth in Section 2.2
of the Base Indenture, every Global Note authenticated and delivered hereunder shall bear a legend substantially in the following form:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 3.6
Defeasance.
Article XIII, including Sections 13.2 and 13.3,
of the Base Indenture shall apply to the Notes.
Section 3.7
No Additional Amounts.
The Company will not pay any additional amounts on
the Notes to compensate any beneficial owner for any United States tax withheld from payments on the Notes.
ARTICLE
IV
Covenants
Section 4.1
Limitations on Liens.
So long as any Notes are Outstanding, neither the
Company nor any Subsidiary shall mortgage, pledge, grant a security interest in or hypothecate, or permit any mortgage, pledge, security
interest, lien or other encumbrance upon, any capital stock of any Subsidiary now or hereafter owned directly or indirectly by the Company
or any Subsidiary, to secure any Indebtedness without concurrently making effective provision whereby the Outstanding Notes shall (so
long as such other Indebtedness shall be so secured) be equally and ratably secured with any and all such other Indebtedness and any other
indebtedness similarly entitled to be equally and ratably secured; provided, however, that this restriction shall not apply
to, or prevent the creation of:
(1)
any mortgage, pledge, security interest, lien or encumbrance existing on the Issue Date;
(2)
any mortgage, pledge, security interest, lien or encumbrance upon any capital stock created at the time of the acquisition
of such capital stock by the Company or any Subsidiary or within one year after such time to secure all or a portion of the purchase price
for such capital stock;
(3)
any mortgage, pledge, security interest, lien or encumbrance upon any capital stock existing thereon at the time of the
acquisition of such capital stock by the Company or any Subsidiary, whether or not the obligations secured thereby are assumed by the
Company or such Subsidiary, other than any mortgage, pledge, security interest, lien or encumbrance created in connection with or in anticipation
of such acquisition not for the purpose of securing the purchase price for such capital stock;
(4)
any mortgage, pledge, security interest, lien or encumbrance upon any capital stock to secure or provide for the acquisition,
construction, improvement, expansion or development of property by the Company or any Subsidiary; provided that such mortgage,
pledge, security interest, lien or encumbrance may not extend to or cover any other property of the Company or any Subsidiary that is
not the subject of the related financing;
(5)
any mortgage, pledge, security interest, lien or encumbrance upon any limited liability company interest of Black Hills
Wyoming, LLC (or any of its direct or indirect Subsidiaries); provided that such mortgage, pledge, security interest, lien or encumbrance
may not extend to or cover any other property of the Company or any Subsidiary that is not the subject of such refinancing;
(6)
so long as no additional property of the Company or any Subsidiary is encumbered or made subject to a mortgage, pledge,
security interest,
lien or other encumbrance, any mortgage, pledge, security interest, lien or encumbrance granted in connection with
(a) extending, renewing, replacing or refinancing in whole or in part the Indebtedness secured by any mortgage, pledge, security interest,
lien or encumbrance described in the foregoing clauses (1) through (5) or (b) any transaction or series of related transactions involving
separate projects pursuant to which any of the mortgages, pledges, security interests, liens or encumbrances described in the foregoing
clauses (1) through (5) are combined or aggregated; provided, that, for purposes of this subclause (b), all of the Indebtedness
secured by such mortgages, pledges, security interests, liens or encumbrances immediately prior to such transaction or series of related
transactions is repaid in connection therewith; provided further, that, for purposes of this subclause (b), the aggregate amount
of Indebtedness secured by such combined or aggregated mortgages, pledges, security interests, liens or other encumbrances does not exceed
the sum of (x) the aggregate amount of extended, renewed, replaced or refinanced Indebtedness secured by such mortgages, pledges, security
interests, liens or encumbrances outstanding immediately prior to such transaction or series of related transactions and (y) 5% of Consolidated
Capitalization, less the total amount of all Indebtedness then outstanding that has been incurred and secured pursuant to this subclause
(y) in any prior, separate transactions or series of related transactions;
(7)
any mortgage, pledge, security interest, lien or encumbrance upon any capital stock now or hereafter owned by the Company
or any Subsidiary to secure any Indebtedness, which would otherwise be subject to the foregoing restriction and not otherwise permitted
under any of the foregoing clauses (1) through (6), in an aggregate principal amount which, together with the amount of all other such
Indebtedness then outstanding that has been incurred and secured under this clause (7), does not at the time of the creation of such mortgage,
pledge, security interest, lien or encumbrance exceed 5% of Consolidated Capitalization; or
(8)
any judgment, levy, execution, attachment or other similar lien arising in connection with court proceedings, provided
that:
(a)
the execution or enforcement of each such lien is effectively stayed within 60 days after entry of the corresponding judgment
(or the corresponding judgment has been discharged within such 60-day period) and the claims secured thereby are being contested in good
faith by appropriate proceedings timely commenced and diligently prosecuted;
(b)
the payment of each such lien is covered in full by insurance provided by a third party and the insurance company has not
denied or contested coverage thereof; or
(c)
each such lien is adequately bonded within 60 days of the creation of such lien.
In case the Company shall propose to mortgage, pledge,
grant a security interest in or hypothecate any capital stock of any Subsidiary owned directly or indirectly by the Company or any Subsidiary
to secure any Indebtedness, other than as permitted by clauses (1) to (7), inclusive, of this Section 4.1, the Company shall prior thereto
give written notice thereof to the Trustee, and the Company shall prior to or simultaneously with such mortgage, pledge, grant of security
interest or hypothecation, by supplemental indenture executed by the Company and the Trustee (or to the extent legally necessary by another
trustee or an additional or separate trustee), in form satisfactory to the Trustee, effectively secure (for so long as such other Indebtedness
shall be so secured) all the Outstanding Notes equally and ratably with such Indebtedness and with any other indebtedness similarly entitled
to be equally and ratably secured.
Section 4.2
Change of Control.
If a Change of Control Triggering Event occurs with
respect to the Notes, each Holder of the Notes shall have the right to require the Company to repurchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes pursuant to the offer described below (a “Change
of Control Offer”) on the terms set forth in this Section 4.2. In a Change of Control Offer, the Company shall offer payment
in cash equal to 101% of the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest (if any) on the Notes repurchased,
to but excluding the date of repurchase (the “Change of Control Payment”), subject to the right of Holders of record
on the relevant Record Date to receive interest on the corresponding Interest Payment Date.
Within 30 days following any Change of Control Triggering
Event (unless the Company has previously mailed or delivered a redemption notice with respect to all Outstanding Notes pursuant to Section 3.2
of this Supplemental Indenture) or, at the option of the Company, prior to any Change of Control Triggering Event but after public announcement
of the transaction or transactions that constitute or may constitute the Change of Control, the Company shall mail by first-class mail
or deliver in accordance with DTC procedures a notice to each Holder of the Notes (with a copy to the Trustee), which notice shall:
(1)
describe the circumstances and relevant facts regarding the Change of Control Triggering Event;
(2)
offer to repurchase the Notes on the date specified in the notice, which date shall be no earlier than 30 days and no later
than 60 days following the date such notice is mailed or delivered (the “Change of Control Payment Date”), pursuant
to the procedures required by the Indenture and described in such notice, which offer will constitute the Change of Control Offer; and
(3)
if mailed or delivered prior to the date on which the Change of Control Triggering Event occurs, state that the Change of
Control Offer is conditioned on the Change of Control Triggering Event occurring on or prior to the applicable Change of Control Payment
Date.
On the Change of Control Payment Date, the Company
shall, to the extent lawful:
(1)
accept for payment all Notes or portions of Notes properly tendered pursuant to the applicable Change of Control Offer;
(2)
deposit with the Paying Agent an amount equal to the applicable Change of Control Payment in respect of all Notes or portions
of Notes properly tendered; and
(3)
deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate
stating the aggregate principal amount of Notes or portions of Notes being repurchased.
Holders electing to have any Notes repurchased shall
be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at
least three Business Days prior to the Change of Control Payment Date. Holders shall be entitled to withdraw their election if the Trustee
or the Company receives, not later than one Business Day prior to the Change of Control Payment Date, a written notice (including by facsimile
or other electronic transmission) setting forth the name of the Holder, the principal amount of the Notes which were delivered for purchase
by the Holder and a statement that such Holder is withdrawing its election to have such Notes purchased.
On the Change of Control Payment Date, all Notes
purchased by the Company under this Section 4.2 shall be delivered by the Company to the Trustee for cancellation, and the Company
shall pay the Change of Control Payment to the Holders entitled thereto.
Notwithstanding the foregoing provisions of this
Section 4.2, the Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering
Event if a third party makes a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements for
a Change of Control Offer made by the Company and the third party purchases all Notes properly tendered and not withdrawn under such Change
of Control Offer.
The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable
in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions
of any securities laws or regulations conflict with the provisions of this Section 4.2, the Company shall comply with the applicable
securities laws and regulations. The Company shall not be deemed to have breached its obligations under this Section 4.2 by virtue
of such compliance.
Notwithstanding anything to the contrary contained
in the Base Indenture, the Trustee may enter into a supplemental indenture for the purpose of waiving or modifying the provisions of this
Section 4.2 with respect to the Notes with the written consent of the Holders of a majority in principal amount of the Outstanding
Notes.
ARTICLE
V
Remedies
Section 5.1
Events of Default.
“Event of Default” means, with
respect to any Note, any one or more of the following events (whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a)
default in the payment of the principal of such Note at its Maturity, or any Change of Control Payment with respect to such
Note on any Change of Control Payment Date;
(b)
default in the payment of any interest upon such Note when it becomes due and payable, and continuance of such default for
a period of 30 days;
(c)
default in the performance, or breach, of any covenant or warranty of the Company in this Supplemental Indenture or the
Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section 5.1 specifically
addressed or which has expressly been included in the Indenture solely for the benefit of one or more series of Securities other than
the Notes), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding
Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder (without giving effect to any applicable grace period with respect to such covenant or warranty);
(d)
the entry by a court having jurisdiction in the premises of (i) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law
or (ii) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property,
or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive days; or
(e)
the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it
to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of any such action.
References to Section 5.1(5) and 5.1(6) in Section 5.2 of the
Base Indenture shall, for purposes of the Notes, be amended to refer to Sections 5.1(d) and 5.1(e) above.
ARTICLE
VI
Miscellaneous
Section 6.1
Governing Law.
This Supplemental Indenture and the Notes shall be
governed by and construed in accordance with the laws of the State of New York, without giving effect to such State’s conflicts
of laws principles.
Section 6.2
Ratification of Indenture.
Except as expressly modified or amended hereby, the
Indenture continues in full force and effect and is in all respects confirmed, ratified and preserved.
Section 6.3
Trustee.
The Trustee makes no representations as to the validity
or sufficiency of this Supplemental Indenture. The statements and recitals herein are deemed to be those of the Company and not of the
Trustee.
Delivery of reports, information and documents to
the Trustee with respect to the Notes pursuant to the Indenture is for informational purposes only and its receipt of such reports shall
not constitute constructive notice of any information contained therein or determinable from information contained therein, including
the Company’s compliance with any of the Company’s covenants contained in the Indenture or the Notes (as to which the Trustee
is entitled to rely exclusively on Officers’ Certificates). The Trustee shall not be obligated to monitor or
confirm, on a continuing
basis or otherwise, the Company’s compliance with the covenants contained in the Indenture or with respect to any reports or other
documents filed with the Securities and Exchange Commission.
Section 6.4
Counterparts.
This Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original, but such counterparts shall together constitute one and the same instrument.
This Supplemental Indenture shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized
individual on behalf of the party, which may be done by means of (i) any electronic signature permitted by the federal Electronic Signatures
in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic
signatures law, including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”); (ii) an original
manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied
manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature.
Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied
manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity
or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when
expressly required under the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
Section 6.5
Separability.
In case any provision in this Supplemental Indenture
or in the Notes shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 6.6
Cancellation.
All Notes surrendered for payment, redemption, registration
of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by the Trustee in accordance with the Trustee’s customary procedures. The Company may at any time deliver to the Trustee
for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered shall be promptly canceled by the Trustee in accordance
with the Trustee’s customary procedures. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided
in this Section, except as expressly permitted by the Indenture. Evidence of the destruction of any cancelled Notes shall be delivered
to the Company upon its written request.
Section 6.7
Force Majeure.
In no event shall the Trustee be responsible or liable
for any failure or delay in the performance of any act or fulfillment of any of its duties, obligations or responsibilities with respect
to the Notes arising out of or caused by, directly or indirectly, any occurrence beyond its control, including, without limitation, any
act or provision of any present or future law or regulation or governmental authority, strikes, work stoppages, labor dispute, disease,
epidemic or pandemic, quarantine, national emergency, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, malware or ransomware, unavailability of the Federal Reserve Bank wire or telex system or other wire
or other funds transfer systems, unavailability of any securities clearing system and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the Trustee shall undertake commercially reasonable
efforts to resume performance as soon as practicable under the circumstances.
Section 6.8
U.S.A. Patriot Act.
The Company acknowledges that in accordance with
the Customer Identification Program (CIP) requirements under the U.S.A. PATRIOT Act and its implementing regulations, the Trustee in order
to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The Company hereby agrees that it shall provide
the Trustee with such information as the Trustee may request including, but not limited to, the Company’s name, physical address,
tax identification number and other information that will help the Trustee identify and verify the Company’s identity such as organizational
documents, certificate of good standing, license to do business, or other pertinent identifying information.
Section 6.9
Jury Waiver.
Each of the Company and the Trustee irrevocably waives,
to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating
to the Indenture, this Supplemental Indenture and the Notes, or the transactions contemplated thereby.
IN WITNESS WHEREOF, the parties have caused this
Supplemental Indenture to be duly executed, all as of the date first above written.
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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 |
Signature Page to Twelfth
Supplemental Indenture
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COMPUTERSHARE TRUST COMPANY, N.A.,
as Trustee |
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By: |
/s/ Corey J. Dahlstrand |
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Name: Corey J. Dahlstrand |
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Title: Vice President |
Signature Page to Twelfth
Supplemental Indenture
EXHIBIT A
FORM OF NOTE
[Face of Security]
[If this Security is a Global Note, insert: THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY
IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
CUSIP No.: 092113 AW9
ISIN No.: US092113AW94
6.150% Notes due 2034
BLACK HILLS CORPORATION
BLACK HILLS CORPORATION, a South Dakota corporation
(the “Company”), for value received, hereby promises to pay to __________ or registered assigns the principal sum of
_________ DOLLARS on May 15, 2034 (the “Stated Maturity Date”), unless earlier redeemed at the option of the Company
as provided herein, and to pay interest thereon from September 15, 2023, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on May 15 and November 15 in each year (each, an “Interest Payment Date”),
commencing May 15, 2024, at the rate of 6.150% per annum, until the principal hereof is paid or duly provided for. All capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them in the Indenture referred to the reverse of this Security.
The interest payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Holder in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on the May 1 or November 1 (whether or not a Business Day)
preceding such Interest Payment Date at the office or agency of the Company maintained for such purpose. Interest will be computed on
the basis of a 360-day year of twelve 30-day months. Any such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date, and may be paid to the Holder in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which
the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the
Indenture.
The principal of this Security payable on the Stated
Maturity Date, or the Redemption Price payable on a Redemption Date, if any, or the Change of Control Payment payable on a Change of Control
Payment Date, if any, will be paid against presentation of this Security at the office or agency of the Company maintained for that purpose
in Minneapolis, Minnesota, in such coin or currency of the United States of America as at the time of payment is legal tender for the
payment of public and private debts.
Interest payable on this Security on any Interest
Payment Date and on the Stated Maturity Date or any Redemption Date or any Change of Control Payment Date, as the case may be, will include
interest accrued from and including the next preceding Interest Payment Date in respect of which interest has been paid or duly provided
for (or from and including September 15, 2023, if no interest has been paid on this Security) to but excluding such Interest Payment
Date or the Stated Maturity Date or Redemption Date or Change of Control Payment Date, as the
case may be. If any Interest Payment Date or
the Stated Maturity Date or any Redemption Date or any Change of Control Payment Date falls on a day that is not a Business Day, the payment
due on such date will be paid on the next succeeding Business Day with the same force and effect as if it were paid on the date such payment
was due, and no interest shall accrue on the amount so payable for the period from and after the date such payment was due. “Business
Day” means each Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on which banking institutions in New York,
New York, are authorized or obligated by law or executive order to close.
[If this Security is a Global Note, insert: All payments
due in respect of this Security will be made by the Company in immediately available funds.]
Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth
at this place.
Unless the Certificate of Authentication hereon has
been executed by the Trustee by manual signature of one of its authorized signatories, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument
to be duly executed.
Dated: _____________
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BLACK HILLS CORPORATION |
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By: |
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Name: |
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Title: |
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
COMPUTERSHARE TRUST COMPANY, N.A., as Trustee
Dated: _____________ |
COMPUTERSHARE TRUST COMPANY, N.A.,
as Trustee |
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By: |
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Name: |
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Title: |
[Reverse of Security]
BLACK HILLS CORPORATION
6.150% Notes due 2034
This Security is one of a duly authorized issue of
securities of the Company (herein called the “Securities”), issued and to be issued in one or more series under an
Indenture dated as of May 21, 2003 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated
as of May 21, 2003, the Second Supplemental Indenture dated as of May 14, 2009, the Third Supplemental Indenture dated as of July
16, 2010, the Fourth Supplemental Indenture dated as of November 19, 2013, the Fifth Supplemental Indenture dated as of January 13,
2016, the Sixth Supplemental Indenture dated as of August 19, 2016, the Seventh Supplemental Indenture dated as of August 17, 2018, the
Eighth Supplemental Indenture dated as of October 3, 2019, the Ninth Supplemental Indenture dated as of June 17, 2020, the Tenth Supplemental
Indenture dated as of August 26, 2021, the Eleventh Supplemental Indenture dated as of March 7, 2023 and the Twelfth Supplemental Indenture
dated as of September 15, 2023 (as so supplemented, herein called the “Indenture”), each between the Company and Computershare
Trust Company, N.A., as trustee (as successor to Wells Fargo Bank, National Association, the prior trustee, and LaSalle Bank National
Association, the original trustee) (herein called the “Trustee,” which term includes any successor trustee under the
Indenture with respect to the series of which this Security is a part), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee
and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. The aggregate
principal amount of the Securities of this series to be issued is initially limited to $450,000,000 (except for Securities authenticated
and delivered upon transfer of, or in exchange for, or in lieu of other Securities), which amount may be increased pursuant to an Officers’
Certificate in accordance with the Twelfth Supplemental Indenture referred to above. To the extent any provision of this Security conflicts
with the express provisions of the Base Indenture or the Twelfth Supplemental Indenture thereto, the provisions of the Base Indenture
or the Twelfth Supplemental Indenture thereto (as applicable) shall govern and be controlling.
If an Event of Default, as defined in the Indenture,
with respect to the Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
The Company at its option may redeem the Notes, in
whole or in part, at any time and from time to time, as provided in the Indenture. Unless the Company defaults in payment of the Redemption
Price, on and after the Redemption Date interest will cease to accrue on the Notes or portions thereof called for redemption.
If a Change of Control Triggering Event occurs with
respect to the Securities of this series, each Holder of the Securities of this series will have the right to require the Company to repurchase
all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Securities of this series
in cash at a repurchase price equal to 101% of the aggregate principal amount of the Securities of this series repurchased, plus accrued
and unpaid
interest (if any) on the Securities of this series repurchased, to but excluding the date of repurchase, subject to the right
of the Holders of record on the relevant Record Date to receive interest on the corresponding Interest Payment Date, all as provided in
the Indenture.
Article XIII, including Sections 13.1 and 13.2, of
the Base Indenture will apply to the Securities of this series.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders
of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority
of the aggregate principal amount of each series of Securities issued under the Indenture at the time Outstanding and affected thereby.
The Indenture also contains provisions permitting the Holders of not less than a majority of the aggregate principal amount of the Outstanding
Securities of any series, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions
of the Indenture. Furthermore, provisions in the Indenture permit the Holders of not less than a majority of the aggregate principal amount,
in certain instances, of the Outstanding Securities of any series to waive, on behalf of all of the Holders of Securities of such series,
certain past defaults under the Indenture and their consequences.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and the Redemption Price and Change of Control Payment, if any) and interest on this Security at the times, places and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in the Security Register of the Company upon surrender of
this Security for registration of transfer at the office or agency of the Company in any place where the principal of (and the Redemption
Price and Change of Control Payment, if any) and interest on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or by his attorney
duly authorized in writing, and thereupon one or more new Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein set forth, this Security is exchangeable for a like aggregate principal amount of Securities of different authorized
denominations but otherwise having the same terms and conditions, as requested by the Holder hereof surrendering the same.
No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment of this Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name
this Security is
registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in
registered form without coupons in denominations of $2,000 and integral multiples of $1,000.
No recourse shall be had for the payment of the principal
of or the Redemption Price or Change of Control Payment, if any, or the interest on this Security, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture supplemental thereto, against any incorporator, stockholder,
employee, agent, officer, director or subsidiary, as such, past, present or future, of the Company or of any successor corporation, either
directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
The Securities and the Indenture shall be governed
by and construed in accordance with the laws of the State of New York, without giving effect to such State’s conflicts of laws principles.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Insert assignee’s soc. sec. or tax identification
no.)
(Print or type assignee’s name, address and
zip code)
and irrevocably appoint ______________________________________ as agent
to transfer this Security on the books of the Company. The agent may substitute another to act for him.
Date: ______________
(Sign exactly as your name appears on the face of this Security)
Signature Guarantee by: |
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Signatures must be guaranteed by an “eligible guarantor institution”
meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security
Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Exhibit 5.1
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Brian G. Iverson |
7001 Mt. Rushmore Road |
Sr. Vice President and General Counsel |
Rapid City, SD 57702 |
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P: 605.721.2305 |
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F: 605.719.9967 |
September 15, 2023
Black Hills Corporation
7001 Mount Rushmore Road
Rapid City, South Dakota 57702
Ladies and Gentlemen:
I am Senior Vice
President and General Counsel of Black Hills Corporation, a South Dakota corporation (the “Company”), and I have acted
as counsel for the Company in connection with (i) the preparation of a Registration Statement on Form S-3 (File No. 333-272739) (the “Registration
Statement”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933,
as amended (the “Act”), and (ii) the Prospectus Supplement dated September 6, 2023 (the “Prospectus Supplement”)
to the Prospectus dated June 16, 2023 (the “Prospectus”) relating to the offer and sale by the Company under the Registration
Statement of $450,000,000 aggregate principal amount of its 6.150% Senior Notes due 2034 (the “Notes”).
The Notes 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 “ 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 (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”)
and sold pursuant to the Underwriting Agreement dated September 6, 2023 (the “Underwriting Agreement”) between the
Company and the Underwriters named therein (the “Underwriters”). The Base Indenture, the Supplemental Indenture and
the Underwriting Agreement are sometimes referred to herein collectively as the “Transaction Documents.”
I have examined
or am otherwise familiar with the Registration Statement, the Transaction Documents, the Restated Articles of Incorporation of the Company,
as amended, and the Amended
Black Hills Corporation
September 15, 2023
Page 2
and Restated Bylaws of the Company and such other
documents, records and instruments as I have deemed necessary or appropriate for the purposes of the opinions set forth herein.
Based upon and subject to
the foregoing and the qualifications set forth in Annex I attached hereto, I am of the opinion that the Notes have been duly authorized
and executed by the Company and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to the terms of the Underwriting Agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights generally and equitable principles of general applicability (regardless
of whether considered in a proceeding in equity or at law).
My opinions set forth herein
are limited to the laws of the States of South Dakota and New York and the federal laws of the United States of America (the “Covered
Laws”), and I express no opinion as to the effect of any other laws. The Notes are governed by the laws of the State of New
York. To the extent the opinions set forth herein relate to the laws of the State of New York, I have relied, with their permission, as
to all matters of New York law on the opinions of Faegre Drinker Biddle & Reath LLP dated the date hereof, which is filed herewith
as Exhibit 5.2 to a Current Report on Form 8-K of the Company filed with the Commission and thereby incorporated by reference into the
Registration Statement (the “Current Report”).
I hereby consent to the filing
of this opinion as Exhibit 5.1 to the Current Report and thereby incorporated by reference into the Registration Statement without implying
or admitting that I am an “expert” within the meaning of the Act, or other rules and regulations of the Commission issued
thereunder with respect to any part of the Registration Statement, including this exhibit.
[Signature Page Follows]
Black Hills Corporation
September 15, 2023
Page 3
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Very truly yours, |
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/s/ Brian G. Iverson |
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Brian G. Iverson, Senior Vice President and General Counsel |
[Signature Page to Exhibit 5.1 Opinion of In-House Counsel]
Annex I
In rendering the accompanying opinion letter, I wish
to advise you of the following additional qualifications to which such opinion letter is subject:
(a)
I have relied upon representations made by the Company in the Transaction Documents, the assumptions set forth below as to the matters
referred therein, and upon certificates of, and information provided by, officers and employees of the Company reasonably believed by
me to be appropriate sources of information, as to the accuracy of such factual matters, in each case without independent verification
thereof or other investigation.
(b)
In rendering opinions as to the Covered Laws, I 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 Transaction Documents.
(c)
I 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)
I 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 and the Notes have been duly authorized, executed and delivered by
each party thereto (other than the Company); (iii) each party having rights under any Transaction Documents or the Notes (other than
the Company) 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 and the Notes against it and the other parties; (iv) each document
submitted to me 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) the Company will not in the future take any
discretionary action (including a decision not to act) permitted under the Transaction Documents or the Notes that would result in a
violation of law or constitute a breach or default under any other agreement, order or regulation; (ix) the Company will obtain all
permits and governmental approvals required in the future, and
Annex I-1
take all future actions similarly required,
relevant to the performance of the Transaction Documents and the Notes; and (x) 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 and the Notes.
(e)
I express no opinion as to the enforceability or effect in any Transaction Document of (i) any usury or fraudulent transfer, voidable
transaction 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 waivers of the right to
jury trial, any waivers of service of process requirements that would otherwise be applicable, 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; and (iii) any provision waiving legal, statutory or equitable defenses or other procedural, judicial or administrative rights.
(f)
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, I do not undertake to advise you with respect to any other matter or of any change in such facts and laws or in the interpretation
thereof which may occur after the date hereof.
(g)
Without limiting any other qualifications set forth herein, the opinions expressed in the accompanying opinion letter 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 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) 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; (v) govern and afford judicial discretion regarding determination of damages and entitlement to
attorneys’ fees and other costs; (vi) 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;
(vii) 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; (viii) may limit the amount payable under the Notes upon an acceleration
to the extent that a portion of the amount so payable is considered by a court to be unearned interest; (ix) may require mitigation of
damages; and (x) provide a time limitation after which rights may not be enforced (i.e., statutes of limitation).
Annex I-2
(h) The opinions
expressed herein do not address any of the following legal issues: (i) federal securities laws and regulations, (ii) state securities
laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments; (iii)
margin regulations of the Board of Governors of the Federal Reserve System; (iv) 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 transaction, fraudulent transfer and fraudulent conveyance laws; and (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.
Annex I-3
Exhibit
5.2
|
Faegre Drinker Biddle & Reath LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
+1 612 766 7000 main
+1 612 766 1600 fax |
September 15, 2023
Brian G. Iverson
Senior Vice President – General Counsel
Black Hills Corporation
7001 Mount Rushmore Road
Rapid City, South Dakota 57702
Mr. Iverson:
You have acted as
counsel to Black Hills Corporation, a South Dakota corporation (the “Company”), in connection with (i) the preparation
of a Registration Statement on Form S-3 (File No. 333-272739) (the “Registration Statement”), with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”),
and (ii) the Prospectus Supplement dated September 6, 2023 (the “Prospectus Supplement”) to the Prospectus dated June
16, 2023 (the “Prospectus”) relating to the offer and sale by the Company under the Registration Statement of $450,000,000
aggregate principal amount of its 6.150% Senior Notes due 2034 (the “ Notes”). As such counsel, you are furnishing
an opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. In connection with such opinion, you
have asked us to opine with respect to certain matters under New York law.
The Notes 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 LaSalle
Bank National Association), as 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
(the “Supplemental Indenture” and, the Base Indenture as supplemented by such Supplemental Indenture, the “Indenture”)
and sold pursuant to the Underwriting Agreement dated September 6, 2023 (the “Underwriting Agreement”) by and among
the Company and the Underwriters named therein (the “Underwriters”). The Indenture, the Underwriting Agreement and
the Notes are sometimes referred to herein collectively as the “Transaction Documents.”
Brian G. Iverson, Esq.
Black Hills Corporation
September 15, 2023
Page 2
We have examined the Registration
Statement, the Prospectus, the Prospectus Supplement, the Transaction Documents, and such other documents, records and instruments as
we have deemed necessary or appropriate for the purposes of the opinions set forth herein.
Based upon and subject to
the foregoing and the qualifications set forth in Annex I attached hereto, we are of the opinion that the Notes are valid and binding
obligations of the Company, enforceable against the Company in accordance with their terms, subject to applicable bankruptcy, insolvency,
voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization, moratorium, assignment for the benefit of creditors
and similar laws 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).
We hereby consent to the filing
of this opinion as Exhibit 5.2 to a Current Report on Form 8-K of the Company filed with the Commission and thereby incorporated by reference
into the Registration Statement and to the reference to us under the heading “Legal Matters” in the Prospectus Supplement.
In giving such consent, we do not imply or admit that we are “experts” within the meaning of the Act or other rules and regulations
of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.
|
Very truly yours, |
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FAEGRE DRINKER BIDDLE & REATH LLP |
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By: |
/s/ Brandon C. Mason |
|
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Brandon C. Mason, Partner |
Annex I
In rendering the accompanying opinion letter, we
wish to advise you of the following additional qualifications to which such opinion letter is subject:
(a)
We have relied, as to certain relevant facts, upon representations made by the Company in the Transaction Documents, the assumptions set
forth herein, 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.
(b)
Our opinion letter is limited to the laws of the State of New York (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 the Covered Laws, 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 Transaction Documents.
(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) 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 (ix) the conduct
Annex I-1
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 any
law, rule, regulation, order, decree, judgment, instrument or agreement binding upon the Company or its properties.
(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 provisions 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 the accompanying opinion letter 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
Annex I-2
conduct or to the extent such provisions
are contrary to public policy; (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 Notes 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 herein do not address any of the following legal issues: (i) state securities and Blue Sky laws and regulations; (ii) state
tax laws and regulations; (iii) 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; (iv) voidable transactions, fraudulent transfer and fraudulent
conveyance laws; and (v) compliance with fiduciary duty and conflict-of-interest requirements.
Annex I-3
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