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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):
May 13, 2024
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,
South Dakota | 57702 |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including
Area Code: 605 721-1700
(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:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material 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 |
|
The
New York Stock Exchange |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended
transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the
Exchange Act. ¨
| Item 1.01 |
Entry into a Material Definitive Agreement. |
On May 13, 2024, Black Hills Corporation (the
“Company” or “we”) entered into an Underwriting Agreement by and between the Company and the several
underwriters named in Schedule A thereto (the “Underwriting Agreement”). On May 16, 2024, we entered into the
New Supplemental Indenture (as defined below). Each of the Underwriting Agreement and the New Supplemental Indenture is further described
below under Item 8.01 of this Current Report on Form 8-K, and such disclosure is incorporated by reference into this Item 1.01.
Each of the Underwriting Agreement and the New
Supplemental Indenture contains representations and warranties, covenants and other terms that are customary for such kinds of agreements.
In addition, the Company has agreed to indemnify the underwriters against certain liabilities on customary terms. Some of the underwriters
and their affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings, including but
not limited to commercial lending services, with the Company, its direct or indirect subsidiaries or its affiliates. They have received,
or may in the future receive, customary fees and commissions for these transactions.
Copies of the Underwriting Agreement and the New
Supplemental Indenture are attached hereto as Exhibits 1.1 and 4.1 and are expressly incorporated by reference herein and into our Registration
Statement on Form S-3 (Registration No. 333-272739) (the “Registration Statement”). Our description of such
agreements is qualified in its entirety by reference to the actual terms thereof.
| 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 May 16, 2024, pursuant to the Underwriting
Agreement, the Company issued and sold an aggregate principal amount of $450 million of its 6.000% Notes due 2035 (the “Notes”).
The aggregate gross consideration received by the Company (taking into account original issue discount and underwriting discounts) for
the sale of the Notes is approximately $446.1 million.
The Notes were offered pursuant to the Company’s
Registration Statement, and the related Prospectus dated June 16, 2023 and Prospectus Supplement dated May 13, 2024. 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 or short-term borrowings under our existing facilities, to repay, redeem or otherwise retire all $600 million aggregate principal
amount outstanding of our 1.037% notes due August 23, 2024. 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 Thirteenth Supplemental Indenture entered into by the Company on May 16, 2024 (the “New Supplemental
Indenture” and together with the Base Indenture, the “Indenture”). The Notes bear interest at a rate per
annum of 6.000%, payable semi-annually in arrears on January 15 and July 15 of each year, beginning on January 15, 2025.
The stated maturity for the Notes is January 15, 2035. 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.
A copy of the form of the Notes is attached hereto
as Exhibit 4.2 and is expressly incorporated by reference herein and into the Registration Statement. The foregoing descriptions
are qualified in their entirety by reference to the actual terms of the Notes.
| Item 9.01 |
Financial Statements and Exhibits. |
The following exhibits are furnished or filed herewith:
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: May 16, 2024
Exhibit 1.1
Execution Version
Black Hills Corporation
$450,000,000 6.000% Notes due 2035
UNDERWRITING AGREEMENT
May 13, 2024
Wells Fargo Securities, LLC
550 South Tryon St., 5th Floor
Charlotte, NC 28202
BofA Securities, Inc.
One Bryant Park
New York, NY, 10036
As Representatives (the “Representatives”) of the
Several Underwriters
Ladies and Gentlemen:
1.
Introductory. Black Hills Corporation, a South Dakota corporation (the “Company”), agrees with the several
Underwriters named in Schedule A hereto (the “Underwriters”) to issue and sell to the several Underwriters $450,000,000
aggregate principal amount of its 6.000% Notes due 2035 (the “Offered Securities”). The Offered Securities will be
issued under an indenture dated as of May 21, 2003, between the Company and Computershare Trust Company, N.A., as successor to Wells
Fargo Bank, National Association, as Trustee (the “Trustee”) (the “Base Indenture”), as supplemented
by a first supplemental indenture dated as of May 21, 2003, between the Company and the Trustee, a second supplemental indenture
dated as of May 14, 2009, between the Company and the Trustee, a third supplemental indenture dated as of July 16, 2010, between
the Company and the Trustee, a fourth supplemental indenture dated as of November 19, 2013 between the Company and the Trustee,
a fifth supplemental indenture dated as of January 13, 2016, between the Company and the Trustee, a sixth supplemental indenture
dated as of August 19, 2016, between the Company and the Trustee, a seventh supplemental indenture dated as of August 17, 2018,
between the Company and the Trustee, an eighth supplemental indenture dated as of October 3, 2019, between the Company and the Trustee,
a ninth supplemental indenture dated as of June 17, 2020, between the Company and the Trustee, a tenth supplemental indenture dated
as of August 26, 2021, between the Company and the Trustee, an eleventh supplemental indenture dated as of March 7, 2023, between
the Company and the Trustee, a twelfth supplemental indenture dated as of September 15, 2023 and a thirteenth supplemental indenture
to be dated as of the Closing Date (as defined below) between the Company and the Trustee with respect to the Offered Securities (the
“Supplemental Indenture” and, the Base Indenture as supplemented by such first, second, third, fourth, fifth, sixth,
seventh, eighth, ninth, tenth, eleventh and twelfth supplemental indentures and the Supplemental Indenture, the “Indenture”).
2.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, the several Underwriters
that:
(a) Filing
and Effectiveness of Registration Statement; Certain Defined Terms. The Company has filed with the Commission a registration statement
on Form S-3 (No. 333-272739), including a related prospectus or prospectuses relating to the Offered Securities, covering the
registration of the Offered Securities under the Act, which has become effective. “Registration Statement” at any
particular time means such registration statement in the form then filed with the Commission, including any other amendment thereto,
any document incorporated by reference therein and all 430B Information and all 430C Information with respect to such registration statement,
that in any case has not been superseded or modified. “Registration Statement” without reference to a time means the
Registration Statement as of the Effective Time. For purposes of this definition, 430B
Information shall be considered to be included
in the Registration Statement as of the time specified in Rule 430B.
For purposes of this Agreement:
“430B Information” means information
included in a prospectus relating to the Offered Securities then deemed to be a part of the Registration Statement pursuant to Rule 430B(e) or
retroactively deemed to be a part of the Registration Statement pursuant to Rule 430B(f).
“430C Information” means information
included in a prospectus relating to the Offered Securities then deemed to be a part of the Registration Statement pursuant to Rule 430C.
“Act” means the Securities
Act of 1933, as amended.
“Applicable
Time” means approximately 3:05 p.m. (Eastern time) on the date of this Agreement.
“Closing Date” has the meaning
defined in Section 3 hereof.
“Commission” means the Securities
and Exchange Commission.
“Effective Time” of the Registration
Statement relating to the Offered Securities means the time of the first contract of sale for the Offered Securities.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Final Prospectus” means the
Statutory Prospectus that discloses the public offering price, other 430B Information and other final terms of the Offered Securities
and otherwise satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being
so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus”
means any “issuer free writing prospectus”, as defined in Rule 433, relating to the Offered Securities in the form filed
or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant
to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus”
means any Issuer Free Writing Prospectus that is not a General Use Issuer Free Writing Prospectus.
“Rules and Regulations”
means the rules and regulations of the Commission.
“Securities Laws” means,
collectively, the Sarbanes-Oxley Act of 2002, as amended (“Sarbanes-Oxley”), the Act, the Exchange Act, the Trust
Indenture Act, the Rules and Regulations, the auditing principles, rules, standards and practices applicable to auditors of
“issuers” (as defined in Sarbanes-Oxley) promulgated or approved by the Public Company Accounting Oversight Board and,
as applicable, the rules of the New York Stock Exchange and the Nasdaq Stock Market (“Exchange Rules”).
“Statutory Prospectus” with
reference to any particular time means the prospectus relating to the Offered Securities that is included in the Registration Statement
immediately prior to that time, including all 430B Information and all 430C Information with respect to the Registration Statement. For
purposes of the foregoing definition, 430B Information shall be considered to be included in the Statutory Prospectus only as of the
actual time that form of prospectus (including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b) and
not retroactively.
“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended.
Unless otherwise specified, a reference to a “rule”
is to the indicated rule under the Act.
(b) Compliance
with Securities Act Requirements. (i) (A) At the time the Registration Statement initially became effective, (B) at
the time of each amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether by post-effective
amendment, incorporated report or form of prospectus), (C) at the Effective Time relating to the Offered Securities and (D) on
the Closing Date, the Registration Statement conformed and will conform in all material respects to the requirements of the Act, the
Trust Indenture Act and the Rules and Regulations and did not and will not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) (A) on
its date, (B) at the time of filing the Final Prospectus pursuant to Rule 424(b) and (C) on the Closing Date, the
Final Prospectus will conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and
Regulations, and will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. The preceding sentence does not apply to statements in or omissions from
any such document based upon written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information is that described as such in Section 8(b) hereof.
(c) Automatic
Shelf Registration Statement. (i) Well-Known Seasoned Issuer Status. (A) At the time of initial filing of the Registration
Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of
the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of
the Exchange Act or form of prospectus), and (C) at the time the Company or any person acting on its behalf (within the meaning,
for this clause only, of Rule 163(c)) made any offer relating to the Offered Securities in reliance on the exemption of Rule 163,
the Company was a “well known seasoned issuer” as defined in Rule 405, including not having been an “ineligible
issuer” as defined in Rule 405.
(ii) Effectiveness
of Automatic Shelf Registration Statement. The Registration Statement is an “automatic shelf registration statement”,
as defined in Rule 405, that initially became effective within three years of the date of this Agreement. If immediately prior to
the Renewal Deadline (as hereinafter defined), any of the Offered Securities remain unsold by the Underwriters, the Company will prior
to the Renewal Deadline file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating
to the Offered Securities, in a form reasonably satisfactory to the Representatives. If the Company is no longer eligible to file an
automatic shelf registration statement, the Company will prior to the Renewal Deadline, if it has not already done so, file a new shelf
registration statement relating to the Offered Securities, in a form reasonably satisfactory to the Representatives, and will use its
best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Company will
take all other action necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated
in the expired registration statement relating to the Offered Securities. References herein to the Registration Statement shall include
such new automatic shelf registration statement or such new shelf registration statement, as the case may be. “Renewal Deadline”
means the third anniversary of the initial effective time of the Registration Statement.
(iii) Eligibility
to Use Automatic Shelf Registration Form. The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) objecting
to use of the automatic shelf registration statement form. If at any time when Offered Securities remain unsold by the Underwriters the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic
shelf registration statement form, the
Company will (A) promptly notify the Representatives, (B) promptly file a new registration
statement or post-effective amendment on the proper form relating to the Offered Securities, in a form reasonably satisfactory to the
Representatives, (C) use its best efforts to cause such registration statement or post-effective amendment to be declared effective
as soon as practicable, and (D) promptly notify the Representatives of such effectiveness. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Offered Securities to continue as contemplated in the registration
statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References
herein to the Registration Statement shall include such new registration statement or post-effective amendment, as the case may be.
(iv) Filing
Fees. The Company has paid or shall pay the required Commission filing fees relating to the Offered Securities within the time required
by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(d) Ineligible
Issuer Status. (i) At the earliest time after the filing of the Registration Statement that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Offered Securities and (ii) at the date of
this Agreement, the Company was not and is not an “ineligible issuer”, as defined in Rule 405, including (A) the
Company or any subsidiary of the Company in the preceding three years not having been convicted of a felony or misdemeanor or having
been made the subject of a judicial or administrative decree or order as described in Rule 405 and (B) the Company in the preceding
three years not having been the subject of a bankruptcy petition or insolvency or similar proceeding, not having had a registration statement
be the subject of a proceeding under Section 8 of the Act and not being the subject of a proceeding under Section 8A of the
Act in connection with the offering of the Offered Securities, all as described in Rule 405.
(e) General
Disclosure Package. As of the Applicable Time, neither (i) the General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time and the preliminary prospectus supplement, dated May 13, 2024, including the base prospectus of the Company,
dated June 16, 2023 (which is the most recent Statutory Prospectus distributed to investors generally), and the other information,
if any, stated in Schedule B to this Agreement to be included in the General Disclosure Package, all considered together (collectively,
the “General Disclosure Package”), nor (ii) any individual Limited Use Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the information
described as such in Section 8(b) hereof.
(f) Issuer
Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times through the completion
of the public offer and sale of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include any information that conflicted, conflicts or will conflict
with the information then contained in the Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information then contained in the Registration Statement or as a result of which such Issuer Free Writing Prospectus, if republished
immediately following such event or development, would include an untrue statement of a material fact or omitted or would omit to state
a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading, (i) the Company has promptly notified or will promptly notify the Representatives and (ii) the Company has promptly
amended
or will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(g) Good
Standing of the Company. The Company has been duly incorporated and is existing and in good standing under the laws of the State
of South Dakota, with power and authority (corporate and other) to own its properties and conduct its business as described in the Registration
Statement, the General Disclosure Package and the Final Prospectus; and the Company is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, result in
a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the
Company and its subsidiaries taken as a whole (“Material Adverse Effect”).
(h) Subsidiaries.
Each subsidiary of the Company has been duly incorporated or organized, as the case may be, and is existing and in good standing under
the laws of the jurisdiction of its incorporation or organization, as the case may be, with power and authority (corporate and other)
to own its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Final
Prospectus, except where the failure to be so qualified and in good standing would not, individually or in the aggregate, result in a
Material Adverse Effect; and each subsidiary of the Company is duly qualified to do business as a foreign corporation, limited partnership,
general partnership or limited liability company, as the case may be, in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, result in a Material Adverse Effect; all of the issued and outstanding capital
stock or partnership or limited liability company interests, as the case may be, of each subsidiary of the Company has been duly authorized
and validly issued and, with respect to the capital stock of each subsidiary that is a corporation, is fully paid and nonassessable;
and, except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the capital stock or
partnership or limited liability company interests, as the case may be, of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(i) The
Indenture. The Base Indenture has been duly authorized, executed and delivered by the Company and has been duly qualified under the
Trust Indenture Act. The Supplemental Indenture has been duly authorized by the Company and, when executed and delivered by the Company
and assuming due authorization, execution and delivery by the Trustee, the Indenture will constitute a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
(j) The
Offered Securities. The Offered Securities are in the form contemplated by the Indenture and have been duly authorized by the Company
and, when issued and delivered pursuant to the Indenture to and paid for by the Underwriters in accordance with the terms of this Agreement,
will have been duly executed, authenticated, issued and delivered by the Company and will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, and be entitled to the benefits provided by the Indenture, subject in each
case to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights and to general equity principles.
(k) No
Finder’s Fee. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, there
are no contracts, agreements or understandings between the Company and any person that would give rise to a valid claim against the Company
or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(l) Registration
Rights. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, there are no
contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file
a registration statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require
the Company to include such securities in the securities registered pursuant to a Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Act (collectively, “registration rights”),
and any person to whom the Company has granted registration rights has agreed, if necessary, not to exercise such rights until after
the expiration of the Lock-Up Period referred to in Section 5 hereof.
(m) Absence
of Further Requirements. No consent, approval, authorization, or order of, or filing or registration with, any person (including
any governmental agency or body or any court) is required for the consummation of the transactions contemplated by this Agreement or
the Indenture in connection with the offering, issuance and sale of the Offered Securities by the Company, except such as have been obtained
or made and such as may be required under state securities laws.
(n) Title
to Property. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company
and its subsidiaries have good and marketable title to all real properties and all other properties and assets owned by them that are
material to the Company and its subsidiaries taken as a whole, in each case free from liens, charges, encumbrances and defects that would
materially affect the value thereof or materially interfere with the use made or to be made thereof by them and, except as disclosed
in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries hold any leased
real or personal property that is material to the Company and its subsidiaries taken as a whole under valid and enforceable leases with
no terms or provisions that would materially interfere with the use made or to be made thereof by them.
(o) Absence
of Defaults and Conflicts Resulting from Transaction. The execution, delivery and performance of this Agreement and the Indenture,
and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof, will not result in a breach
or violation of any of the terms and provisions of, or constitute a default or a Debt Repayment Triggering Event (as defined below) under,
or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to, (i) the charter or by-laws or other organizational documents of the Company or any of its subsidiaries, (ii) any
statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties, or (iii) any agreement or instrument to which the Company or any
of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties of the Company
or any of its subsidiaries is subject, except, in the case of clauses (ii) and (iii), as would not, individually or in the aggregate,
result in a Material Adverse Effect. A “Debt Repayment Triggering Event” means any event or condition that gives,
or with the giving of notice or lapse of time would give, the holder of any note, debenture, or other evidence of indebtedness (or any
person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(p) Absence
of Existing Defaults and Conflicts. Neither the Company nor any of its subsidiaries is in violation of its respective charter, by-laws
or organizational documents or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation,
agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which
any of them is a party or by which any
of them is bound or to which any of the properties of
any of them is subject, except such defaults that would not, individually or in the aggregate, result in a Material Adverse
Effect.
(q) Authorization
of Agreement. This Agreement has been duly authorized, executed and delivered by the Company.
(r) Possession
of Licenses. The Company and its subsidiaries possess, and are in compliance with the terms of, all adequate certificates, authorizations,
franchises, licenses and permits (“Licenses”) necessary or material to the conduct of the business now conducted or
proposed in the General Disclosure Package to be conducted by them and have not received any notice of proceedings relating to the revocation
or modification of any Licenses that, if determined adversely to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(s) Absence
of Labor Dispute. No labor dispute with the employees of the Company or any of its subsidiaries exists or, to the knowledge of the
Company, is imminent that could have a Material Adverse Effect.
(t) Possession
of Intellectual Property. The Company and its subsidiaries own, possess, or can acquire on reasonable terms, adequate trademarks,
trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively,
“intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(u) Environmental
Laws. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “environmental laws”),
owns or operates any real property contaminated with any substance that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is subject to any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(v) Accurate
Disclosure. The statements in the Registration Statement, General Disclosure Package and the Final Prospectus under the headings
“Description of the Notes”, “Description of Senior Debt Securities”, “Material U.S. Federal Income Tax
Consequences” and “Underwriting (Conflicts of Interest)”, insofar as such statements summarize legal matters, agreements,
documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings
in all material respects and present the information required to be shown.
(w) Absence
of Manipulation. The Company has not taken, directly or indirectly, any action that is designed to or that has constituted or that
would reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Offered Securities.
(x) Internal
Controls and Compliance with the Sarbanes-Oxley Act. Except as set forth in the Registration Statement, the General Disclosure Package
and the Final Prospectus, the Company, its subsidiaries and the Company’s Board of Directors (the “Board”) are
in compliance in all
material respects with Sarbanes-Oxley and all applicable Exchange Rules. The Company maintains a system of internal
controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial
reporting, an internal audit function and legal and regulatory compliance controls (collectively, “Internal Controls”)
that comply in all material respects with the Securities Laws and are sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted accounting principles in the United States and to
maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. The Internal Controls are, or upon consummation of the offering of the Offered Securities
will be, overseen by the Audit Committee (the “Audit Committee”) of the Board in accordance with Exchange Rules. Since
the date of the filing of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, the Company
has not publicly disclosed or reported to the Audit Committee or the Board, and within the next 90 days the Company does not reasonably
expect to publicly disclose or report to the Audit Committee or the Board, (i) any significant deficiency in the design or operation
of Internal Controls that could adversely affect the Company’s ability to record, process, summarize and report financial data,
any material weakness in Internal Controls, any material change in Internal Controls or any fraud involving management or other employees
who have a significant role in Internal Controls (each, an “Internal Control Event”) or (ii) any material violation
of, or failure to comply with, the Securities Laws.
(y) Absence
of Accounting Issues. A member of the Audit Committee has confirmed to the Chief Executive Officer, Chief Financial Officer or General
Counsel of the Company that, except as set forth in the Registration Statement, the General Disclosure Package and the Final Prospectus,
the Audit Committee is not reviewing or investigating, and neither the Company’s independent auditors nor its internal auditors
have recommended that the Audit Committee review or investigate, (i) adding to, deleting, changing the application of, or changing
the Company’s disclosure with respect to, any of the Company’s material accounting policies; (ii) any matter which
could result in a restatement of the Company’s financial statements for any annual or interim period during the current or prior
three fiscal years; or (iii) any Internal Control Event.
(z) Litigation.
Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, there are no pending actions,
suits or proceedings (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) against
or affecting the Company, any of its subsidiaries or any of their respective properties that, if determined adversely to the Company
or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under this Agreement or the Indenture, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or proceedings (including any inquiries or investigations
by any court or governmental agency or body, domestic or foreign) are, to the Company’s knowledge, threatened or contemplated.
(aa)
Financial Statements. The financial statements included in the Registration Statement, the General Disclosure Package and
the Final Prospectus present fairly the financial position of the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States applied on a consistent basis; and the schedules included in the Registration
Statement present fairly the information required to be stated therein. The interactive data in extensible Business Reporting Language
included or incorporated by reference in the Registration Statement , the General Disclosure Package and the Final Prospectus fairly
presents the information called for in all material respects and has been prepared in all material respects in accordance with the Commission’s
rules and guidelines applicable thereto.
(bb)
No Material Adverse Change in Business. Except as disclosed in the General Disclosure Package, since the end of the period
covered by the latest audited financial statements included in the General Disclosure Package (i) there has been no change, nor
any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company and its subsidiaries, taken as a whole that is material and adverse, (ii) there has been
no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock (other than regular quarterly
cash dividends in respect of the Company’s common stock and declared and paid by the Company in the ordinary course of business)
and (iii) there has been no material adverse change in the capital stock, short-term indebtedness, long-term indebtedness, net current
assets or net assets of the Company and its subsidiaries.
(cc)
Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the Registration Statement, the General Disclosure Package and the Final
Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended.
(dd)
Ratings. No “nationally recognized statistical rating organization” as such term is defined for purposes of
Section 3(a)(62) of the Exchange Act (i) has imposed (or has informed the Company that it is considering imposing) any condition
(financial or otherwise) on the Company’s retaining any rating assigned to the Company or any securities of the Company or (ii) has
indicated to the Company that it is considering any of the actions described in Section 7(c)(ii) hereof, except as has been
publicly disclosed by the applicable nationally recognized statistical rating organization.
(ee)
Foreign Corrupt Practices Act. Within the last five years, none of the Company, any of its subsidiaries or, to the Company’s
knowledge, any director, officer, agent, employee, controlled affiliate or other controlled person acting on behalf of the Company or
any of its subsidiaries has taken any action, directly or indirectly, that would reasonably be expected to result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”),
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization
of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and its subsidiaries
conduct their businesses in material compliance with the FCPA.
(ff)
Money Laundering Laws. The operations of the Company and its subsidiaries comply in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the applicable
money laundering statutes of all jurisdictions in which the Company and its subsidiaries operate, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity applicable to
the Company and its subsidiaries (collectively, the “Money Laundering Laws”); and no action, suit or proceeding by
or before any Governmental Entity with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries.
(gg)
OFAC. None of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee,
controlled affiliate or other controlled representative of the Company or any of its subsidiaries is an individual or entity currently
the subject or target of any international economic sanctions administered or enforced by the United States Government, including, without
limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European
Union, His Majesty’s Treasury or other relevant sanctions authority (collectively, “Sanctions”). The Company
will not use the proceeds of the sale of the Offered Securities in violation of Sanctions.
(hh)
Cybersecurity. Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus,
or as would not, individually or in the aggregate, result in a Material Adverse Effect: (i) to the Company’s knowledge there
has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology
and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors
and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”);
(ii) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to their IT Systems and Data; and (iii) the Company and its subsidiaries
are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or
arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification.
Except as disclosed in the Registration Statement, the General Disclosure Package and the Final Prospectus, the Company and its subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
3.
Purchase, Sale and Delivery of Offered Securities. On the basis of the representations, warranties and agreements and subject
to the terms and conditions set forth herein, the Company agrees to sell to the several Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company the respective principal amount of Offered Securities set forth opposite such
Underwriter’s name in Schedule A hereto at a purchase price of 99.137% of the principal amount of the Offered Securities, plus
accrued interest, if any, from May 16, 2024, to the Closing Date (as hereinafter defined).
Payment
of the purchase price for, and delivery of, the Offered Securities shall be made at the offices of Davis Polk & Wardwell LLP,
450 Lexington Avenue, New York, New York 10017, or at such other place as shall be agreed upon by the Representatives and the Company,
at 9:30 a.m. (New York City time) on May 16, 2024, or such other time not later than five business days after such date
as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called the “Closing
Date”).
Payment shall be made by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to the Representatives for the respective accounts of the
Underwriters of the Offered Securities to be purchased by them. It is understood that each Underwriter has authorized the Representatives,
for their account, to accept delivery of, receipt for, and make payment of the purchase price for, the Offered Securities that it has
agreed to purchase. The Representatives may (but shall not be obligated to) make payment of the purchase price for the Offered Securities
to be purchased by any Underwriter whose funds have not been received by the Closing Date, but such payment shall not relieve such Underwriter
from its obligations hereunder.
Delivery of the Offered Securities, which will
be represented by one or more definitive global notes in book-entry form, shall be made through the facilities of the Depository Trust
Company unless the Representatives shall otherwise instruct. The Offered Securities to be so delivered will be in fully registered form
in such authorized denominations as established pursuant to the Indenture.
4.
Offering by Underwriters. It is understood that the several Underwriters propose to offer the Offered Securities for sale
to the public as set forth in the Final Prospectus.
5.
Certain Agreements of the Company. The Company agrees with the several Underwriters that:
(a) Filing
of Prospectuses. The Company has filed or will file each Statutory Prospectus (including the Final Prospectus) pursuant to and in
accordance with Rule 424(b)(2) (or, if applicable and consented to by the Representatives, subparagraph (5), such consent not
to be
unreasonably withheld or delayed) not later than the second business day following the earlier of the date it is first used or
the execution and delivery of this Agreement. The Company has complied and will comply with Rule 433.
(b) Filing
of Amendments; Response to Commission Requests. The Company will promptly advise the Representatives of any proposal to amend or
supplement the Registration Statement or any Statutory Prospectus at any time and will offer the Representatives a reasonable opportunity
to comment on any such amendment or supplement; and the Company will also advise the Representatives promptly of (i) the filing
of any such amendment or supplement, (ii) any request by the Commission or its staff for any amendment to the Registration Statement,
for any supplement to any Statutory Prospectus or for any additional information, (iii) the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or the threatening of any proceeding for that purpose, and (iv) the
receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities in any jurisdiction
or the institution or threatening of any proceedings for such purpose. The Company will use its best efforts to prevent the issuance
of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof.
(c) Continued
Compliance with Securities Laws. If, at any time when a prospectus relating to the Offered Securities is (or, but for the exemption
in Rule 172, would be) required to be delivered under the Act by any Underwriter or dealer, any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Registration Statement or supplement the Final Prospectus to comply with the Act, the Company will
promptly notify the Representatives of such event and will promptly prepare and file with the Commission and furnish, at its own expense,
to the Underwriters and the dealers and any other dealers upon request of the Representatives, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such compliance. Neither the Representatives’ consent to,
nor the Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth
in Section 7 hereof.
(d) Rule 158.
As soon as practicable, but not later than 16 months, after the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12 months beginning after the date of this Agreement and satisfying
the provisions of Section 11(a) of the Act and Rule 158.
(e) Furnishing
of Prospectuses. The Company will furnish to the Representatives copies of the Registration Statement, including all exhibits, any
Statutory Prospectus, the Final Prospectus and all amendments and supplements to such documents, in each case as soon as available and
in such quantities as the Representatives reasonably request. The Company will pay the expenses of printing and distributing to the Underwriters
all such documents.
(f) Blue
Sky Qualifications. The Company will arrange for the qualification of the Offered Securities for sale and the determination of their
eligibility for investment under the laws of such jurisdictions as the Representatives reasonably designate and will continue such qualifications
in effect so long as required for the distribution; provided that, in connection therewith, the Company shall not be required
to qualify as a foreign corporation or to take any action that would subject it to a general consent to service of process in any such
jurisdiction.
(g) Reporting
Requirements. During the period of five years hereafter, if any Offered Securities remain outstanding, the Company will furnish to
the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company will furnish to the Representatives (i) as soon as available,
a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to
stockholders, and
(ii) from time to time, such other information concerning the Company as the Representatives may reasonably request.
However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the
Exchange Act and is timely filing reports with the Commission on its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”),
it is not required to furnish such reports or statements to the Representatives or the Underwriters.
(h) Payment
of Expenses. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including but
not limited to any filing fees and other expenses (including fees and disbursements of counsel to the Underwriters) incurred in connection
with qualification of the Offered Securities for sale under the laws of such jurisdictions as the Representatives reasonably designate
and the preparation and printing of memoranda relating thereto, any fees charged by investment rating agencies for the rating of the
Offered Securities, costs and expenses relating to investor presentations or any “road show” in connection with the offering
and sale of the Offered Securities including, without limitation, any travel expenses of the Company’s officers and employees and
any other expenses of the Company including the chartering of airplanes (but excluding any separately-incurred travel expenses of employees
and representatives of the Representatives and the Underwriters), fees and expenses incident to listing any of the Offered Securities
on the New York Stock Exchange, American Stock Exchange, Nasdaq Stock Market and other national and foreign exchanges, fees and expenses
in connection with the registration of the Offered Securities under the Exchange Act, and expenses incurred in distributing preliminary
prospectuses and the Final Prospectus (including any amendments and supplements thereto) to the Underwriters and for expenses incurred
for preparing, printing and distributing any Issuer Free Writing Prospectuses to investors or prospective investors.
(i) Use
of Proceeds. The Company will use the net proceeds received in connection with this offering in the manner described in the “Use
of Proceeds” section of the Registration Statement, the General Disclosure Package and the Final Prospectus and, except as disclosed
in the Registration Statement, General Disclosure Package and the Final Prospectus, the Company does not intend to use any of the proceeds
from the sale of the Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any Underwriter.
(j) Absence
of Manipulation. The Company will not take, directly or indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in stabilization or manipulation of the price of any securities of the Company to facilitate
the sale or resale of the Offered Securities.
(k) Restriction
on Sale of Securities. The Company will not offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating to United States dollar-denominated debt securities issued
or guaranteed by the Company and having a maturity of more than one year from the date of issue, or publicly disclose the intention to
make any such offer, sale, pledge, disposition or filing, without the prior written consent of Wells Fargo Securities, LLC and BofA Securities, Inc.
for a period beginning on the date hereof and ending on the Closing Date (the “Lock-Up Period”).
6.
Free Writing Prospectuses. (a) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Representatives, and each Underwriter represents and agrees that, unless it obtains the prior consent
of the Company and the Representatives, it has not made and will not make any offer relating to the Offered Securities that would constitute
an Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing prospectus”, as defined in Rule 405,
required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives is hereinafter
referred to as a “Permitted Free Writing Prospectus”. The Company represents that it has treated and agrees that it
will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus”, as defined in Rule 433, and
has complied and will comply with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including
timely Commission filing where required, legending and record keeping.
(b) Term
Sheet. The Company will prepare a final term sheet relating to the Offered Securities, containing only information that describes
the final terms of the Offered Securities and otherwise in a form consented to by the Representatives, and will file such final term
sheet within the period required by Rule 433(d)(5)(ii) following the date such final terms have been established for the offering
of the Offered Securities. Any such final term sheet is an Issuer Free Writing Prospectus and a Permitted Free Writing Prospectus for
purposes of this Agreement. The Company also consents to the use by any Underwriter of a free writing prospectus that contains only (i) (A) information
describing the preliminary terms of the Offered Securities or their offering or (B) information that describes the final terms of
the Offered Securities or their offering and that is included in the final term sheet of the Company contemplated in the first sentence
of this subsection or (ii) other information that is not “issuer information”, as defined in Rule 433, it being
understood that any such free writing prospectus referred to in clause (i) or (ii) above shall not be an Issuer Free Writing
Prospectus for purposes of this Agreement.
7.
Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters to purchase and pay for
the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties of the Company herein
(as though made on the Closing Date), to the accuracy of the statements of Company officers made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following additional conditions precedent:
(a) Accountants’
Comfort Letters. The Representatives shall have received letters, dated, respectively, the date hereof and the Closing Date, of Deloitte &
Touche LLP, confirming that it is a registered public accounting firm and independent public accountants within the meaning of the Securities
Laws and substantially in the form of Schedule C hereto (except that, in any letter dated the Closing Date, the specified date referred
to in Schedule C hereto shall be a date no more than three days prior to the Closing Date).
(b) Filing
of Prospectus. The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall
have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter,
shall be contemplated by the Commission.
(c) No
Material Adverse Change. Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change,
or any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business,
properties or prospects of the Company and its subsidiaries taken as a whole which, in the judgment of the Representatives, is material
and adverse and makes it impractical or inadvisable to market the Offered Securities; (ii) any downgrading in the rating of any
debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of
Rule 3(a)(62)), or any public announcement that any such organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates
or exchange controls the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce
contracts for the sale of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any
suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum
prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter
market; (vi) any banking moratorium declared by any U.S. Federal or New York authorities; (vii) any major disruption of settlements
of securities, payment or clearance services in the United States or any other country where such securities are listed, or (viii) any
attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack,
outbreak, escalation, act,
declaration, calamity or emergency is such as to make it impractical or inadvisable to market the Offered
Securities or to enforce contracts for the sale of the Offered Securities.
(d) Opinion
of Counsel for Company. The Representatives shall have received an opinion, dated the Closing Date, of Faegre Drinker Biddle &
Reath LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in
Exhibit A hereto.
(e) Opinion
of General Counsel to the Company. The Representatives shall have received an opinion, dated the Closing Date, of Brian G. Iverson, Esq.,
General Counsel to the Company, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Exhibit B
hereto.
(f) Opinion
of Counsel for Underwriters. The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with respect to such matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering
such opinion, Davis Polk & Wardwell LLP may rely as to the incorporation of the Company and all other matters governed by South
Dakota law upon the opinion of Brian G. Iverson, Esq., General Counsel to the Company, referred to above.
(g) Officers’
Certificate. The Representatives shall have received a certificate, dated the Closing Date, of an executive officer of the Company
and a principal financial or accounting officer of the Company in which such officers shall state that: the representations and warranties
of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge and after reasonable
investigation, are contemplated by the Commission; and, subsequent to the date of the most recent financial statements in the General
Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse
change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the General Disclosure Package or as described in such certificate.
The Company will furnish the Representatives with such conformed copies
of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder.
8.
Indemnification and Contribution. (a) Indemnification by the Company. The Company will indemnify and hold harmless
each Underwriter, its partners, members, directors, officers, employees, agents, affiliates and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”),
against any and all losses, claims, damages or liabilities, joint or several, to which such Indemnified Party may become subject, under
the Act, the Exchange Act, other Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in any part of the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or
any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading, and will reimburse each Indemnified Party for any legal
or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending against any loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Indemnified Party is a party thereto),
whether threatened or commenced, and in connection with the enforcement of this provision with respect to any of the above as such expenses
are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any
of such documents in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in subsection (b) below.
(b) Indemnification
by the Underwriters. Each Underwriter will severally and not jointly indemnify and hold harmless the Company, each of its directors
and each of its officers who signs a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act (each, an “Underwriter Indemnified Party”), against any losses,
claims, damages or liabilities to which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other
Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any part of
the Registration Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing Prospectus,
or arise out of or are based upon the omission or the alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by such Underwriter Indemnified Party in connection with investigating or defending against any such loss, claim,
damage, liability, action, litigation, investigation or proceeding whatsoever (whether or not such Underwriter Indemnified Party is a
party thereto), whether threatened or commenced, based upon any such untrue statement or omission, or any such alleged untrue statement
or omission as such expenses are incurred, it being understood and agreed that the only such information furnished by any Underwriter
consists of the following information in the Final Prospectus furnished on behalf of each Underwriter: the concession and discount figures
appearing in the third paragraph under the caption “Underwriting (Conflicts of Interest)” and the information contained in
the sixth through tenth paragraphs under the caption “Underwriting (Conflicts of Interest)”) (pertaining to the underwriters’
intention to make market in the Notes, stabilizing transactions, over-allotment transactions, syndicate covering transactions and penalty
bids and the allocation of Internet distributions).
(c) Actions
against Parties; Notification. Promptly after receipt by an indemnified party under this Section of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under subsection
(a) or (b) above, notify the indemnifying party of the commencement thereof; but the failure to notify the indemnifying party
shall not relieve it from any liability that it may have under subsection (a) or (b) above except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or threatened action in respect of which any indemnified party
is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any claims that are the subject matter of such action and (ii) does
not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution.
If the indemnification provided for in this Section is unavailable or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as
a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company
or the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred
to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations
in this subsection (d) to contribute are several in proportion to their respective underwriting obligations and not joint. The Company
and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to in this Section 8(d).
9.
Default of Underwriters. If any Underwriter or Underwriters default in their obligations to purchase Offered Securities
hereunder on the Closing Date and the aggregate principal amount of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount of Offered Securities that the Underwriters are obligated
to purchase on the Closing Date, the Representatives may make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the Offered Securities
that such defaulting Underwriters agreed but failed to purchase on the Closing Date. If any Underwriter or Underwriters so default and
the aggregate principal amount of Offered Securities with respect to which such default or defaults occur exceeds 10% of the total principal
amount of Offered Securities that the Underwriters are obligated to purchase on the Closing Date and arrangements satisfactory to the
Representatives and the Company for the purchase of such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 10. As used in this Agreement,
the term “Underwriter” includes any person substituted for an Underwriter
under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
10.
Survival of Certain Representations and Obligations. The respective indemnities, agreements, representations, warranties
and other statements of the Company or its officers and of the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement as to the results thereof, made by or on behalf of any
Underwriter, the Company or any of their respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement pursuant to Section 9 hereof or the occurrence of
any event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(d), the Company will reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel) reasonably incurred by them in connection with the offering
of the Offered Securities, and the respective obligations of the Company and the Underwriters pursuant to Section 8 hereof shall
remain in effect. In addition, if any Offered Securities have been purchased hereunder, the representations and warranties in Section 2
and all obligations under Section 5 shall also remain in effect.
11.
Notices. All communications hereunder will be in writing and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to the Representatives at Wells Fargo Securities, LLC, 550 South Tryon St., 5th Floor, Charlotte,
NC 28202, Attention: Transaction Management (with a copy to tmgcapitalmarkets@wellsfargo.com) and BofA Securities, Inc., 114 West
47th Street, NY8-114-07-01, New York, NY 10036, Attention: High Grade Transaction Management/Legal, Fax: (212) 901-7881 (with
a copy to dg.hg_ua_notices@bofa.com) or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 7001
Mount Rushmore Road, Rapid City, South Dakota 57702, Attention: Brian G. Iverson, Esq., General Counsel; provided, however,
that any notice to an Underwriter pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
12.
Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors
and the officers and directors and controlling persons referred to in Section 8, and no other person will have any right or obligation
hereunder.
13.
Representation of Underwriters. The Representatives will act for the several Underwriters in connection with this financing,
and any action under this Agreement taken by the Representatives will be binding upon all the Underwriters.
14.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic
mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic
Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
15.
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) No
Other Relationship. The Representatives have been retained solely to act as an underwriter in connection with the sale of Offered
Securities and that no fiduciary, advisory or agency relationship between the Company and the Representatives has been created in respect
of any of the transactions contemplated by this Agreement or the Final Prospectus, irrespective of whether the Representatives have advised
or is advising the Company on other matters;
(b) Arms’
Length Negotiations. The price of the Offered Securities set forth in this Agreement was established by the Company following discussions
and arms’-length negotiations with the Representatives and the Company is capable of evaluating and understanding and
understands
and accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) Absence
of Obligation to Disclose. The Company has been advised that the Representatives and their respective affiliates are engaged in a
broad range of transactions which may involve interests that differ from those of the Company and that the Representatives have no obligation
to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and
(d) Waiver.
The Company waives, to the fullest extent permitted by law, any claims it may have against the Representatives for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that the Representatives shall have no liability (whether direct or indirect) to
the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the
Company, including stockholders, employees or creditors of the Company.
16.
Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby. The Company irrevocably and unconditionally waives any objection
to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby
in Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.
17.
Recognition of the U.S. Special Resolution Regimes
(a) In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent
as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation,
were governed by the laws of the United States or a state of the United States.
(b) In
the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under
a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to
be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement
were governed by the laws of the United States or a state of the United States.
(c) For
purposes of this Section 17:
(i)
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted
in accordance with, 12 U.S.C. § 1841(k).
(ii) “Covered
Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 252.82(b); (ii) “covered bank” as that term is defined in, and interpreted in
accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted
in accordance with, 12 C.F.R. § 382.2(b).
(iii) “Default
Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
(iv) “U.S.
Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder
and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
If the foregoing is in accordance with the Representatives’
understanding of our agreement, kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a binding
agreement between the Company and the several Underwriters in accordance with its terms.
| |
Very
truly yours, |
| |
|
| |
BLACK
HILLS CORPORATION |
| |
|
| |
By: |
/s/
Tom Stevens |
| |
|
Name: Tom Stevens |
| |
|
Title: Vice President,
Treasurer |
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above written.
| |
WELLS FARGO SECURITIES, LLC |
| |
|
|
| |
By: |
/s/
Carolyn Hurley |
| |
|
Name:
Carolyn Hurley |
| |
|
Title:
Managing Director |
| |
BOFA Securities, inc. |
| |
|
| |
By: |
/s/
Sandeep Chawia |
| |
|
Name:
Sandeep Chawia |
| |
|
Title:
Managing Director |
Acting on behalf of themselves and as the Representatives of the several
Underwriters.
SCHEDULE A
| Underwriter | |
Principal Amount of
Offered Securities | |
| Wells Fargo Securities, LLC | |
$ | 112,500,000 | |
| BofA Securities, Inc. | |
$ | 99,000,000 | |
| BMO Capital Markets Corp. | |
$ | 49,500,000 | |
| J.P. Morgan Securities LLC | |
$ | 49,500,000 | |
| U.S. Bancorp Investments, Inc. | |
$ | 49,500,000 | |
| Mizuho Securities USA LLC | |
$ | 22,500,000 | |
| MUFG Securities Americas Inc. | |
$ | 22,500,000 | |
| RBC Capital Markets, LLC | |
$ | 22,500,000 | |
| Scotia Capital (USA) Inc. | |
$ | 22,500,000 | |
| Total | |
$ | 450,000,000 | |
SCHEDULE B
1. General Use Issuer Free Writing Prospectuses (included in the
General Disclosure Package)
“General Use Issuer Free Writing Prospectus”
includes each of the following documents:
1. Final term sheet, dated May 13, 2024, a
copy of which is attached hereto.
2. Other Information Included in the General Disclosure Package
The following information is also included in the
General Disclosure Package:
None.
Pricing Term Sheet
[Intentionally omitted]
SCHEDULE C
[Intentionally omitted]
SCHEDULE D
(“Significant Subsidiaries”)
| Subsidiary Name |
State of Organization |
| Black Hills Colorado Electric, LLC |
Delaware |
| Black Hills Energy Arkansas, Inc. |
Arkansas |
| Black Hills Power, Inc. |
South Dakota |
| Black Hills Service Company, LLC |
South Dakota |
| Black Hills Utility Holdings, Inc. |
South Dakota |
| Black Hills Nebraska Gas, LLC |
Delaware |
EXHIBIT A
May 16, 2024
Wells Fargo Securities, LLC
550 South Tryon St., 5th Floor
Charlotte, NC 28202
BofA Securities, Inc.
One Bryant Park
New York, NY 10036
and the several other Underwriters listed in
Schedule A to the
Underwriting Agreement
referenced below
| Re: | Offering by Black Hills Corporation of $450,000,000 principal amount of its 6.000% Notes due 2035 |
Ladies and Gentlemen:
We
have acted as counsel to Black Hills Corporation, a South Dakota corporation (the “Company”), in connection with the
Underwriting Agreement, dated May 13, 2024 (the “Underwriting Agreement”), by and among the Company and Wells
Fargo Securities, LLC and BofA Securities, Inc., as representatives of the several underwriters listed in Schedule A thereto
(the “Underwriters”), relating to the issuance by the Company of $450,000,000 principal amount of its 6.000% Notes
due 2035 (the “Offered Securities”). Capitalized terms used and not defined herein have the respective meanings ascribed
to such terms in the Underwriting Agreement. We are delivering this opinion letter pursuant to Section 7(d) of the Underwriting
Agreement.
The Offered Securities are to be issued under an indenture dated as
of May 21, 2003, between the Company and Computershare Trust Company, N.A. (as successor to Wells Fargo Bank, National Association),
as Trustee (the “Trustee”) (the “Base Indenture”), as supplemented by a first supplemental indenture
dated as of May 21, 2003, a second supplemental indenture dated as of May 14, 2009, a third supplemental indenture dated as
of July 16, 2010, a fourth supplemental indenture dated as of November 19, 2013, a fifth supplemental indenture dated as of
January 13, 2016, a sixth supplemental indenture dated as of August 19, 2016, a seventh supplemental indenture dated as of August 17,
2018, an eighth supplemental indenture dated as of October 3, 2019, a ninth supplemental indenture dated as of June 17, 2020,
a tenth supplemental indenture dated as of August 26, 2021, an eleventh supplemental indenture dated as of March 7, 2023, a
twelfth supplemental indenture dated as of September 15, 2023 and a thirteenth supplemental indenture dated as of the Closing Date
(the “Supplemental Indenture” and, the Base Indenture as supplemented by such Supplemental Indenture, the “Indenture”).
The Indenture, the Underwriting Agreement and the Offered Securities are sometimes referred to herein collectively as the “Transaction
Documents.”
We have made such examination of law and facts
as we have deemed necessary as a basis for our opinions set forth below. In connection with such examination, we have reviewed the following
documents:
(a) The
Company’s automatic shelf Registration Statement on Form S-3 (File No. 333-272739) filed with the Securities and Exchange
Commission (the “Commission”) on June 16, 2023 (the “Registration Statement”);
(b) The
prospectus dated June 16, 2023 included within the Registration Statement (the “Base Prospectus”), the preliminary
prospectus supplement dated May 13, 2024 relating to the Offered Securities (together with the Base Prospectus, the “Preliminary
Prospectus”), the General Disclosure Package, and the final prospectus supplement dated May 13, 2024 relating to the Offered
Securities (together with the Base
Prospectus, the “Final Prospectus”), in each case, including the documents incorporated
by reference therein;
(c) The
Underwriting Agreement; and
(d) The
Indenture, including the forms of Offered Securities attached to the Supplemental Indenture.
Based
upon and subject to the foregoing and the qualifications set forth in Annex I attached hereto, we advise you that in
our opinion:
1. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
2. The
Offered Securities delivered on the Closing Date conform in all material respects to the description thereof contained in the General
Disclosure Package and the Final Prospectus.
3. When
executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, the Offered Securities will be valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and will be entitled to the benefits of the Indenture, in each case except as the same
may be limited by the effect of bankruptcy, insolvency, voidable transactions, fraudulent conveyance, fraudulent transfer, reorganization,
moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting creditors’
rights generally and equitable principles of general applicability (regardless of whether considered in a proceeding in equity or at law).
4. The
Indenture constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except
as the same may be limited by the effect of bankruptcy, insolvency, voidable transactions, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium, assignment for the benefit of creditors and other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally and equitable principles of general applicability (regardless of whether considered in a proceeding
in law or at equity).
5. The
execution and delivery by the Company of the Supplemental Indenture, the Offered Securities and the Underwriting Agreement, and the performance
by the Company of its obligations under the Transaction Documents, will not violate any provision of statutory law or regulation of the
United States of America or the State of New York applicable to the Company (except no opinion is rendered with respect to federal or
state securities or Blue Sky laws or regulations adopted by the Financial Industry Regulatory Authority, Inc. (“FINRA”)
in connection with the purchase and distribution of the Offered Securities by the Underwriters).
6. No
consent, approval, authorization or order of, or qualification with, the government of the United States of America or the State of New
York or any department, commission or agency thereof is required to be made or obtained by the Company under any provision of statutory
law or regulation of the United States of America or the State of New York applicable to the Company for the performance by the Company
of its obligations under the Transaction Documents or the issuance and sale of the Offered Securities by the Company pursuant to the Underwriting
Agreement, except such as have been obtained or may be required by federal or state securities or Blue Sky laws or regulations adopted
by FINRA (as to which we render no opinion).
7. The
Company is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof
as described in the Final Prospectus will not be, required to register as an “investment company” as such term is defined
in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder (the “ICA”).
8. The
statements in each of the General Disclosure Package and the Final Prospectus under the captions “Description of the Notes”
and “Description of Senior Debt Securities,” insofar as such statements purport to summarize matters of law, descriptions
of statutes, rules or regulations, legal documents or legal proceedings, in each case fairly summarize in all material respects such
matters, statutes, rules, regulations, documents or proceedings when taken as a whole.
9. The
statements in each of the General Disclosure Package and the Final Prospectus under the caption “Material U.S. Federal Income Tax
Consequences,” insofar as such statements purport to summarize the United States federal tax laws referred to therein, fairly summarize
in all material respects the United States federal tax laws referred to therein.
10. The
Registration Statement became effective under the Securities Act of 1933, as amended (the “Act”), upon filing with
the Commission.
11. Each
of the Registration Statement and the documents filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”) expressly incorporated by reference into the Registration Statement, the General Disclosure
Package or the Final Prospectus (except for the Trustee’s Statement of Eligibility and Qualification on Form T-1 and the financial
statements and financial schedules and other financial or accounting data included or incorporated by reference therein or omitted therefrom,
as to which we express no opinion), when such document was filed with the Commission, appeared on its face to comply as to form in all
material respects with the requirements of the Act and the Exchange Act, as applicable, and the applicable rules and regulations
of the Commission thereunder. In passing upon compliance as to the form of such documents, we have assumed that the statements made or
incorporated by reference therein are complete and correct.
In
connection with the preparation of the Registration Statement, the General Disclosure Package and the Final Prospectus, we have participated
in conferences with officers and other representatives of the Company and the independent public accountants for the Company at which
the contents of the same and related matters were discussed. On the basis of such participation and review, but without independent verification
by us of, and, other than with respect to opinion paragraphs 2, 8 and 9, without assuming any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package and the Final Prospectus,
no facts have come to our attention that cause us to believe that (a) the Registration Statement, at the time it became effective
(including the information, if any, deemed pursuant to Rule 430B to be part of the Registration Statement at the time of effectiveness),
contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading, (b) the General Disclosure Package as of the Applicable
Time or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (c) the
Final Prospectus when issued, or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading (except in the case of each of clause (a), (b) and (c) above, for the financial statements and financial schedules
and other financial or accounting data included or incorporated by reference therein or omitted therefrom, as to which we make no statement).
This
letter and the opinions expressed herein are being furnished solely for your information in connection with the Underwriting Agreement
and may not be used for any other purpose or relied on by or assigned, published or communicated to any other person without our prior
written consent, except that we hereby authorize the Trustee to rely upon opinion paragraphs 1, 3 and 4 of this opinion letter
as if they had been addressed to it.
| |
Very truly yours, |
| |
|
| |
|
| |
FAEGRE DRINKER BIDDLE & REATH LLP |
In
rendering the accompanying opinion letter, we wish to advise you of the following additional qualifications to which such opinion
letter is subject:
(a) As
to certain relevant facts, we have relied upon representations made by the Company in the Transaction Documents, the assumptions set forth
herein and in the accompanying opinion letter, and upon certificates of, and information provided by, officers and employees of the Company
reasonably believed by us to be appropriate sources of information, as to the accuracy of such factual matters, in each case without independent
verification thereof or other investigation. With respect to our opinion in paragraph 7 of our opinion letter, we have relied exclusively,
as to all factual matters, on a certificate of an officer of the Company dated as of the date hereof as to the composition of the Company’s
investment portfolio.
(b) Our
opinion letter is limited to U.S. federal laws and, solely with respect to paragraphs 3 through 6 and 8 of our opinion letter, the laws
of the State of New York, in each case that are applicable to the Company other than those that are part of a regulatory scheme specifically
applicable to business organizations engaged in the type of regulated business activities conducted by the Company (the “Covered
Laws”), and we express no opinion as to the effect on the matters covered by our opinions of any other law. Furthermore,
in rendering opinions as to any jurisdictions, we have only considered the applicability of statutes, rules, regulations and judicial
decisions that a lawyer practicing in such jurisdiction (the “Opining Jurisdictions”) exercising customary professional
diligence would reasonably recognize as being directly applicable to the Company or the transactions contemplated by the Underwriting
Agreement.
(c) We
express no opinion as to whether, or to the extent of which, the laws of any particular jurisdiction apply to the subject matter hereof,
including without limitation the enforceability of the governing law provision contained in the Transaction Documents, except to the extent
such provision would be enforceable based on Section 5-1401 and 5-1402 of the General Obligations Law of the State of New York.
(d) We
have relied, without investigation, upon the following assumptions: (i) natural persons who are involved on behalf of the Company
have sufficient legal capacity to enter into and perform, on behalf of the Company, the transaction in question and to carry out their
role in the transaction; (ii) each Transaction Document has been duly authorized, executed and delivered by each party thereto;
(iii) each party having rights under any of the Transaction Documents has satisfied those legal requirements that are applicable
to it to the extent necessary to make the Transaction Documents enforceable against it and has complied with all legal requirements pertaining
to its status as such status relates to its rights to enforce the Transaction Documents against it and the other parties; (iv) each
document submitted to us for review is accurate and complete, each such document that is an original is authentic, each such document
that is a copy conforms to an authentic original, and all signatures on each such document, including electronic signatures, are genuine;
(v) there has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence; (vi) all statutes,
judicial and administrative decisions, and rules and regulations of governmental agencies, constituting the Covered Laws are publicly
available to lawyers practicing in the Opining Jurisdictions; (vii) all relevant statutes, rules, regulations or agency actions are
constitutional and valid unless a reported decision in the Opining Jurisdictions has specifically addressed but not resolved, or has established,
its unconstitutionality or invalidity; (viii) documents reviewed by us (other than the Indenture and the Offered Securities) would
be enforced as written and would be interpreted in a manner consistent with their interpretation under the laws of the State of New York;
(ix) the Company will not in the future take any discretionary action (including a decision not to act) permitted under the Transaction
Documents that would result in a violation of law or constitute a breach or default under any other agreement, order or regulation; (x) the
Company will obtain all permits and governmental approvals required in the future, and take all future actions similarly required, relevant
to the performance of the Transaction Documents; (xi) all parties to the transaction will act in accordance with, and will refrain
from taking any action that is forbidden by, the terms and conditions of the Transaction Documents; (xii) there are no agreements
or understandings among the parties, written or oral, and there is no usage of trade or course of prior dealing among the parties that
would, in either case, define, supplement or qualify the terms
of any of the Transaction Documents; and (xiii) the conduct of the
parties to the Transaction Documents has complied with any requirement of good faith, fair dealing and conscionability.
(e) We
have further assumed, without investigation, that (i) the Company has been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of incorporation; (ii) the Company has the power and authority under its governing documents and
the laws of its jurisdiction of incorporation to execute and deliver the Transaction Documents, to perform its obligations thereunder
and to consummate the transactions contemplated thereby; (iii) the Transaction Documents have been duly authorized, executed and
delivered by the Company; and (iv) the Company has obtained all governmental and third party authorizations, consents, approvals
and orders and has made all filings and registrations required to enable it to execute, deliver and perform its obligations under, and
consummate the transactions contemplated by, the Transaction Documents (which authorizations, consents, approvals and orders have become
final and remain in full force and effect), and such execution, delivery, performance and consummation does not and will not violate or
conflict with the Company’s governing documents or any law, rule, regulation, order, decree, judgment, instrument or agreement binding
upon the Company or its properties (it being understood that the assumption set forth in this clause (iv) does not extend to Covered
Laws as addressed in paragraphs 5 and 6 of the opinion letter).
(f) We
express no opinion as to the enforceability or effect in any Transaction Document of (i) any usury or fraudulent transfer, voidable
transactions or fraudulent conveyance “savings” provision; (ii) any agreement to submit to the jurisdiction of any particular
court or other governmental authority (either as to personal jurisdiction or subject matter jurisdiction), any provision restricting access
to courts (including without limitation agreements to arbitrate disputes), any waivers of the right to jury trial, any waivers of service
of process requirements that would otherwise be applicable, any provision relating to evidentiary standards, any agreement that a judgment
rendered by a court in one jurisdiction may be enforced in another jurisdiction, or any provision otherwise affecting the jurisdiction
or venue of courts; (iii) any provision waiving or otherwise modifying legal, statutory or equitable defenses or other procedural,
judicial or substantive rights; (iv) any provision that authorizes one party to act as attorney-in-fact for another party; or (v) any
provision that provides for set-off or similar rights.
(g) The
opinions herein expressed are limited to the specific issues addressed and to facts and laws existing on the date hereof. In rendering
these opinions, we do not undertake to advise you with respect to any other matter or of any change in such laws or in the interpretation
thereof, or of any change in such facts, which may occur after the date hereof.
(h) Without
limiting any other qualifications set forth herein, the opinions expressed in opinion paragraphs 3 and 4 are subject to the effect of
generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position
in reliance thereon has occurred or provide that a course of performance may operate as a waiver; (ii) limit the availability of
a remedy under certain circumstances where another remedy has been elected; (iii) limit the enforceability of provisions releasing,
exculpating or exempting a party from, or requiring indemnification of or contribution to a party for, liability for its own action or
inaction, to the extent the action or inaction involves negligence, recklessness, willful misconduct or unlawful conduct; (iv) limit
the enforcement of provisions of a contract that purport to require the waiver of the obligation of good faith, fair dealing, diligence
and reasonableness; (v) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the
contract to circumstances in which the unenforceable portion is not an essential part of the agreed exchange; (vi) govern and afford
judicial discretion regarding determination of damages and entitlement to attorneys’ fees and other costs; (vii) may permit
a party who has materially failed to render or offer performance required by a contract to cure that failure unless either permitting
a cure would unreasonably hinder the aggrieved party from making substitute arrangements for performance or it is important under the
circumstances to the aggrieved party that performance occur by the date stated in the contract; (viii) may limit the enforceability
of provisions imposing premiums or liquidated damages to the extent such provisions constitute, or are deemed to constitute, a penalty
or forfeiture and provisions imposing increased interest rates upon default, or providing for the compounding of interest or the payment
of interest on interest; (ix) may limit the amount payable under the Offered Securities upon an acceleration
to the extent that a
portion of the amount so payable is considered by a court to be unearned interest; (x) may require mitigation of damages; (xi) provide
a time limitation after which rights may not be enforced (i.e., statutes of limitation); (xii) may require that a claim with respect
to any debt securities that are payable other than in U.S. dollars (or a foreign currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date determined pursuant to applicable law; and (xiii) may limit, delay or
prohibit the making of payments outside the United States.
(i) The
opinions expressed in opinion paragraphs 3 and 4 regarding the enforceability of the Indenture and the Offered Securities are subject
to the qualification that certain other provisions of the Indenture or the Offered Securities addressed therein may be further limited
or rendered unenforceable by applicable laws, but in our opinion such laws do not render the Indenture or the Offered Securities invalid
as a whole or preclude the practical realization of the principal benefits purported to be provided thereby.
(j) We
express no opinion in any paragraph above as to any agreement, instrument or undertaking (including without limitation any statutory undertaking)
that is not itself a Transaction Document specifically addressed in said paragraph solely as a result of any provision in any such Transaction
Document requiring that the Company perform or cause any other person to perform its obligations under, or stating that any action will
be taken as provided in or in accordance with, or otherwise incorporating by reference, such agreement, instrument or undertaking.
(k) The
opinions expressed herein do not address any of the following legal issues: (i) other than as set forth in opinion paragraphs 1,
7, 10 and 11 and the confirmation in the penultimate paragraph, federal securities laws and regulations, (ii) state securities
and Blue Sky laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments
and the rules and regulations of securities exchanges; (iii) margin regulations of the Board of Governors of the Federal Reserve
System; (iv) other than as set forth in opinion paragraph 9, federal and state tax laws and regulations; (v) the statutes
and ordinances, administrative decisions and the rules and regulations of counties, towns, municipalities and special political subdivisions
(whether created or enabled through legislative action at the federal, state or regional level) and judicial decisions to the extent that
they deal with the foregoing; (vi) voidable transactions, fraudulent transfer and fraudulent conveyance laws; (vii) laws, regulations,
directives and executive orders restricting transactions with or freezing or otherwise controlling assets of designated foreign persons
or governing investments by foreign persons in the United States or otherwise relating to terrorism, money laundering or national
security; (viii) foreign, supranational or international laws; (ix) compliance with fiduciary duty and conflict-of-interest
requirements; (x) pension and employee benefit laws and regulations; (xi) antitrust and unfair competition laws and regulations;
(xii) laws and regulations concerning filing and notice requirements, other than requirements applicable to charter-related documents
such as certificates of merger; (xiii) environmental laws and regulations; (xiv) land use and subdivision laws and regulations;
(xv) intellectual property laws and regulations; (xvi) racketeering laws and regulations; (xvii) health and safety laws
and regulations; (xviii) labor laws and regulations; (xix) laws, regulations, directives, orders and policies concerning national
and local emergency, possible judicial deference to acts of sovereign states, and criminal and civil forfeiture laws; and (xx) other
statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
(l) With
respect to the statements in the penultimate paragraph of the accompanying opinion letter, the purpose of our professional engagement
was not to establish or to confirm factual matters set forth in the Registration Statement, the General Disclosure Package or the Final
Prospectus, and we have not undertaken to verify independently any of such factual matters. Moreover, many of the determinations required
to be made in the preparation of the Registration Statement, the General Disclosure Package or the Final Prospectus involve matters of
a non-legal nature.
EXHIBIT B
May 16, 2024
Wells Fargo Securities, LLC
550 South Tryon St., 5th Floor
Charlotte, NC 28202
BofA Securities, Inc.
One Bryant Park
New York, NY 10036
and the several other Underwriters listed in
Schedule A to the
Underwriting Agreement
referenced below
| Re: | Offering by Black Hills Corporation of $450,000,000 principal amount of its 6.000% Notes due 2035 |
Ladies and Gentlemen:
I
am Senior Vice President and General Counsel of Black Hills Corporation, a South Dakota corporation (the “Company”).
I have acted in such capacity in connection with the Underwriting Agreement, dated May 13, 2024 (the “Underwriting Agreement”),
by and among the Company and Wells Fargo Securities, LLC and BofA Securities, Inc., as representatives of the several underwriters
listed therein (the “Underwriters”), relating to the issuance by the Company of $450,000,000 principal amount of its
6.000% Notes due 2035 (the “Offered Securities”). Capitalized terms used and not defined herein have the respective
meanings ascribed to such terms in the Underwriting Agreement. I am delivering this opinion letter pursuant to Section 7(e) of
the Underwriting Agreement.
The Offered Securities are to be issued under an
indenture dated as of May 21, 2003, between the Company and Computershare Trust Company, N.A., as successor to Wells Fargo Bank,
National Association, as Trustee (the “Trustee”) (the “Base Indenture”), as supplemented by a first
supplemental indenture dated as of May 21, 2003, a second supplemental indenture dated as of May 14, 2009, a third supplemental
indenture dated as of July 16, 2010, a fourth supplemental indenture dated as of November 19, 2013, a fifth supplemental indenture
dated as of January 13, 2016, a sixth supplemental indenture dated as of August 19, 2016, a seventh supplemental indenture dated
as of August 17, 2018, an eighth supplemental indenture dated as of October 3, 2019, a ninth supplemental indenture dated as
of June 17, 2020, a tenth supplemental indenture dated as of August 26, 2021, an eleventh supplemental indenture dated as of
March 7, 2023, a twelfth supplemental indenture dated as of September 15, 2023 and a thirteenth supplemental indenture dated
as of the date hereof with respect to the Offered Securities (the “Supplemental Indenture”). The Base Indenture, the
Supplemental Indenture and the Underwriting Agreement are sometimes referred to herein collectively as the “Transaction Documents.”
In providing this opinion
letter, I, or other lawyers in the Company’s legal department, have made such examination of law and facts as we have deemed
relevant and necessary as a basis for the opinions hereinafter set forth. In connection with such examination, we have reviewed the following
documents:
(a) The
Company’s automatic shelf Registration Statement on Form S-3 (File No. 333-272739) filed with the Securities and Exchange
Commission (the “Commission”) on June 16, 2023 (the “Registration Statement”);
(b) The
prospectus dated June 16, 2023 included within the Registration Statement (the “Base Prospectus”), the preliminary
prospectus supplement dated May 13, 2024 relating to the Offered Securities (together with the Base Prospectus, the “Preliminary
Prospectus”), the General Disclosure Package, and the prospectus supplement dated May 13, 2024 relating to the
Offered
Securities (together with the Base Prospectus, the “Final Prospectus”), in each case, including the documents incorporated
by reference therein;
(c) The
Underwriting Agreement;
(d) The
Base Indenture; and
(e) The
Supplemental Indenture, including the forms of Offered Securities attached thereto.
In reaching the conclusions
expressed in this opinion, I or persons responsible to me have examined the Registration Statement, the General Disclosure Package,
the Final Prospectus, the Transaction Documents, the Company’s Restated Articles of Incorporation, as amended (the “Articles
of Incorporation”), the Company’s Amended and Restated Bylaws dated April 24, 2023 (the “Bylaws”),
certain resolutions of the Board of Directors of the Company and committees thereof relating to, among other things, the execution and
delivery of the Transaction Documents in the name of the Company and the issuance and delivery of the Offered Securities, and such corporate
documents and records of the Company and its subsidiaries, such certificates of public officials and officers of the Company, and such
other documents and matters as I have deemed necessary or appropriate for purposes of this opinion. In rendering this opinion, I
have assumed the following to be true and have conducted no investigation to confirm such assumptions or to determine to the contrary:
(a) the authenticity of all documents, instruments and certificates submitted to me or persons responsible to me as originals; (b) the
conformity with the original documents of all documents, instruments and certificates submitted to me or persons responsible to me as
certified, conformed or photostatic copies; and (c) the authenticity of the originals from which all such copies were made. In rendering
this opinion, I have relied as to matters of fact, to the extent I deemed such reliance appropriate, without investigation, upon
certificates of public officials and upon affidavits, certificates, and written statements of officers and employees of, and accountants
for, the Company.
On the basis of and subject
to the foregoing, I am of the opinion that as of the date hereof:
1. Good
Standing of the Company. The Company has been duly incorporated and is an existing corporation in good standing under the laws of
the State of South Dakota, with corporate power and authority to own its properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be
so qualified and in good standing would not, individually or in the aggregate, result in a Material Adverse Effect.
2. Significant
Subsidiaries. Each subsidiary of the Company listed on Schedule D to the Underwriting Agreement (each, a “Significant Subsidiary”)
has been duly incorporated or organized, as the case may be, and is existing and in good standing under the laws of the jurisdiction of
its incorporation or organization, as the case may be, with power and authority (corporate and other) to own its properties and conduct
its business as described in the General Disclosure Package; and each Significant Subsidiary is duly qualified to do business as a foreign
corporation, limited partnership, general partnership or limited liability company, as the case may be, in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not, individually or in the aggregate, result in a Material Adverse Effect; all
of the issued and outstanding capital stock or partnership or limited liability company interests, as the case may be, of each Significant
Subsidiary have been duly authorized and validly issued and, with respect to the capital stock of each Significant Subsidiary which is
a corporation, are fully paid and nonassessable; and the capital stock or partnership or limited liability company interests, as the case
may be, of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances
and defects.
3. Transaction
Documents; Offered Securities. Each Transaction Document has been duly authorized, executed and delivered by the Company, and the
Offered Securities delivered on the Closing Date have been duly authorized, executed and delivered by the Company.
4. Authority.
The Company has full corporate power and authority to authorize, issue and sell the Offered Securities as contemplated by the Underwriting
Agreement.
5. Registration
Rights. Except as disclosed in the General Disclosure Package, there are no contracts, agreements or understandings known to me between
the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed
by the Company under the Act.
6. Possession
of Licenses. To my knowledge, except as disclosed in the General Disclosure Package, the Company and each of its subsidiaries possess
adequate Licenses issued by appropriate governmental agencies or bodies necessary to conduct the business as now operated by them as described
in the General Disclosure Package and, except as described in the General Disclosure Package, I am not aware of the receipt of any
notice of proceedings relating to the revocation or modification of any such License that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect.
7. Environmental
Laws. To my knowledge, except as disclosed in the General Disclosure Package, the Company and each subsidiary of the Company (A) are
in compliance with any and all applicable environmental laws (as defined in the Underwriting Agreement), (B) have received all permits,
licenses and other approvals required of it under applicable environmental laws to conduct its business and (C) are in compliance
with all terms and conditions of each such permit, license and approval, except where such noncompliance with environmental laws, failure
to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses
or approvals would not, individually or in the aggregate, have a Material Adverse Effect.
8. Absence
of Further Requirements. No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court
is required under South Dakota law, the Public Utility Holding Company Act of 2005, as amended (“PUHCA”), the U.S.
Energy Policy Act of 2005, as amended (the “Energy Policy Act”), or the U.S. Federal Power Act, as amended (the “Federal
Power Act”), for the consummation of the transactions contemplated by the Underwriting Agreement in connection with the issuance
and sale of the Offered Securities by the Company, except such as have been obtained and such as may be required under state securities
laws.
9. Absence
of Defaults and Conflicts Resulting from Transaction. The execution and delivery by the Company of the Supplemental Indenture and
the Underwriting Agreement and the performance by the Company of the Transaction Documents and the issuance and sale of the Offered Securities
and compliance with the terms and provisions thereof will not result in a breach or violation of (A) the Articles of Incorporation
of the Company or the Bylaws of the Company or (B) any of the terms and provisions of, or constitute a default under, or result in
the imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to (i) the
PUHCA, the Energy Policy Act or the Federal Power Act or any rule, regulation or, to my knowledge, order of any governmental agency or
body relating to the PUHCA, the Energy Policy Act or the Federal Power Act or any court having jurisdiction over the Company or any subsidiary
of the Company or any of their properties in a proceeding relating to the PUHCA, the Energy Policy Act or the Federal Power Act or (ii) any
agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties of the Company or any of its subsidiaries is subject, except in the case of this clause (B)(ii) for
such breaches, violations, defaults or impositions as would not, individually or in the aggregate, have a Material Adverse Effect (it
being understood that my opinion in this clause (B)(ii) does not extend to compliance with any financial ratio or any limitation
in any contractual restriction expressed as a dollar (or other currency) amount).
10. Accurate
Disclosure. The descriptions under the headings or subheadings “Risk Factors,” “Business and Properties,”
“Black Hills Corporation” and “About Black Hills Corporation” in or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Final Prospectus of statutes, legal and governmental proceedings, and contracts and
other documents are accurate in all material respects and fairly
present the information required to be shown (it being understood that
I express no opinion as to the content of the financial statements or the other financial data or assessments of or reports on the effectiveness
of internal control over financial reporting contained in the Registration Statement, the General Disclosure Package, the Final Prospectus
or the Form T-1).
11. No
Material Litigation. Except as disclosed in the General Disclosure Package and the Final Prospectus, to my knowledge, there are no
pending actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or any of its properties),
which, in the aggregate, could reasonably be expected to result in a Material Adverse Effect on the Company and its subsidiaries taken
as a whole, or which would materially and adversely affect the ability of the Company to perform its obligations under the Transaction
Documents; and no such actions, suits or proceedings (including any inquiries or investigations by any court or governmental agency or
body) are, to my knowledge, threatened or contemplated.
In connection with the preparation
of the General Disclosure Package and the Final Prospectus, I, or other lawyers in the Company’s legal department, have participated
in conferences with officers and other representatives of the Company and the independent public accountants for the Company at which
the contents of the same and related matters were discussed. On the basis of such participation and review, but without independent verification
by us of, and, other than with respect to opinion paragraph 10, without assuming any responsibility for, the accuracy, completeness or
fairness of the statements contained in the General Disclosure Package and the Final Prospectus, no facts have come to my attention that
cause me to believe that (a) the General Disclosure Package (except for the Trustee’s Statement of Eligibility and Qualification
on Form T-1 and the financial statements and financial schedules, oil and gas reserve reports and other financial or accounting data
included or incorporated by reference therein or omitted therefrom, as to which I make no statement) as of the date of the Underwriting
Agreement or as of the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading or (b) the
Final Prospectus (except for the Trustee’s Statement of Eligibility and Qualification on Form T-1 and the financial statements
and financial schedules, oil and gas reserve reports and other financial or accounting data included or incorporated by reference therein
or omitted therefrom, as to which I make no statement) when issued contained, or as of the date hereof contains, any untrue statement
of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The opinions and views expressed above are subject to the following limitations,
qualifications, exceptions and assumptions:
I have not relied upon, nor
do I undertake for the purposes of this opinion the responsibility to review, the records of any court or administrative or governmental
body to determine the existence of any judicial or administrative proceeding, order, decree, writ or judgment. As to all matters where
I refer to “my knowledge” of the existence of any facts, situations or instruments, such knowledge is based upon my actual
knowledge, from whatever source obtained, and the information obtained by me through specific inquiry of officers of the Company, including
those officers who have responsibility for such information, and examinations of agreements, contracts and records supplied to me by the
Company, and I have not otherwise made, nor do I undertake for the purpose of this opinion to make, any other inquiry or investigation
to ascertain the existence of any other facts, situations or instruments. In the course of such inquiries and examinations, I have
not become aware of any facts which would have made me unable to render any of the opinions expressed above.
I am a member of the bar of
the State of South Dakota. My opinions expressed above are limited to the laws of the State of South Dakota and the federal laws of the
United States of America (but only with regard to the PUHCA, the Energy Policy Act, the Federal Power Act and environmental laws), and
I do not express any opinion herein concerning the laws of any other jurisdiction. With respect to the opinions expressed in paragraph
2, I have assumed that the applicable law in each Significant Subsidiary’s jurisdiction of incorporation or organization, as
the case may be, is the same as the applicable law in the State of South Dakota in all relevant respects.
I have relied upon information,
both oral and written, and copies of documents and records furnished to me by other employees of the Company and others, and, for purposes
of this opinion, I have assumed that all such information and copies are true, correct, genuine and accurate and remain unchanged
to the date hereof, and that all signatures, including electronic signatures, are genuine, and none of said matters have been independently
verified by
me. I have also assumed conformity to the originals of all documents submitted to me as copies. I have also assumed that all
parties to the Transaction Documents will act in accordance with, and will refrain from, taking any action that is forbidden by, the terms
and conditions of the Transaction Documents and the Offered Securities. I have also assumed that, in the future, the Company will not
take any discretionary action (including a decision not to act) that would result in a violation of law or constitute a breach or default
under any agreement, order or regulation and that the officers of the Company will direct that the offering of the Offered Securities
will be conducted in accordance with the limitations imposed by or pursuant to the resolutions of the Company’s board of directors
from time to time.
This opinion letter is limited
to the matters expressly stated herein, and no opinion is inferred or may be implied beyond the matters expressly stated. This opinion
letter expresses matters of professional judgment and does not constitute a guaranty of any result. This opinion letter is predicated
solely upon statutory and case law and facts in existence as of the date hereof. I do not undertake to inform you of any changes in law
or fact subsequent to the date hereof or facts of which I become aware after the date hereof.
I hereby authorize the Trustee
to rely upon opinion paragraphs 1, 2, 3 and 4 of this opinion letter as if they had been addressed to it.
[Signature Page Follows]
This letter and the opinions
expressed herein are being furnished solely for your information in connection with the Underwriting Agreement and may not be used, circulated,
quoted or relied upon for any other purpose without my prior written consent, except as expressly set forth above with respect to the
Trustee.
| |
Very truly yours, |
| |
|
| |
Brian G. Iverson |
Exhibit 4.1
Execution Version
BLACK HILLS CORPORATION
AND
COMPUTERSHARE TRUST COMPANY, N.A.,
AS TRUSTEE
THIRTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF
May 16,
2024
$450,000,000 6.000% NOTES DUE 2035
THIRTEENTH SUPPLEMENTAL INDENTURE dated as of May 16,
2024 (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, the Twelfth Supplemental Indenture dated as of September 15,
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 6.000% Notes due 2035 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 “6.000% Notes due 2035.” 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 October 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
May 16, 2024, to but excluding the date of Maturity, at the rate of 6.000% per annum. The Notes shall mature at 100% of their principal
amount on January 15, 2035. The Company shall pay interest on the Notes semi-annually on January 15 and July 15 of each
year, commencing January 15, 2025, 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 January 1 or July 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 25 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
Thirteenth 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 Thirteenth 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 AX7
ISIN No.: US092113AX77
6.000% Notes due 2035
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 January 15, 2035 (the “Stated Maturity Date”), unless earlier redeemed at the option
of the Company as provided herein, and to pay interest thereon from May 16, 2024, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on January 15 and July 15 in each year (each, an “Interest
Payment Date”), commencing January 15, 2025, at the rate of 6.000% 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 January 1 or July 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 May 16, 2024, 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: _____________
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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
6.000% Notes due 2035
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, the Twelfth Supplemental Indenture dated as of September 15, 2023 and the Thirteenth Supplemental Indenture
dated as of May 16, 2024 (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 Thirteenth Supplemental Indenture referred to above. To the extent any provision
of this Security conflicts with the express provisions of the Base Indenture or the Thirteenth Supplemental Indenture thereto, the provisions
of the Base Indenture or the Thirteenth 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: ______________
Your Signature: __________________________________________________________________________________________________________
(Sign exactly as your name appears on the face of this Security)
Tax Identification No.: _____________________________________________________________________________________________________
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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
| Brian G. Iverson |
7001 Mt. Rushmore
Road |
| Sr. Vice President and General Counsel |
Rapid City, SD
57702 |
P: 605.721.2305
F: 605.719.9967
May 16, 2024
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 May 13, 2024
(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 6.000% Senior
Notes due 2035 (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, a twelfth
supplemental indenture dated as of September 15, 2023 and a thirteenth 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, eleventh and twelfth supplemental indentures and the Supplemental Indenture, the “Indenture”) and sold pursuant
to the Underwriting Agreement dated May 13, 2024 (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.”
Black Hills Corporation
May 16, 2024
Page 2
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 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
May 16, 2024
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 |
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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
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).
(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.
Exhibit 5.2
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Faegre Drinker
Biddle & Reath LLP |
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2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402 |
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+1 612 766 7000 main |
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+1 612 766 1600 fax |
May 16, 2024
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 May 13, 2024 (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 6.000% Senior Notes due 2035 (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, a twelfth
supplemental indenture dated as of September 15, 2023 and a thirteenth 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 May 13, 2024 (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
May 16, 2024
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.
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Very truly yours, |
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|
| |
|
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/s/ Faegre Drinker
Biddle & Reath LLP |
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FAEGRE DRINKER BIDDLE & REATH LLP |
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
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
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.
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