Exhibit 5.1

 

Opinion of Brian G. Iverson

 

August 4, 2020

 

Black Hills Corporation

7001 Mount Rushmore Road

Rapid City, South Dakota 57702

 

Re:       Registration Statement on Form S-3 of Black Hills Corporation

 

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 the filing of a registration statement on Form S-3 (the “Registration Statement”), with the Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the rules and regulations under the Act, of an indeterminate amount of securities of the Company, with such securities to include senior debt securities (the “Senior Debt Securities”), subordinated debt securities (the “Subordinated Debt Securities”), preferred stock (the “Preferred Stock”), fractional shares of Preferred Stock represented by depositary shares (the “Depositary Shares”), common stock (“Common Stock”), warrants for the purchase of debt or equity securities (the “Warrants”), purchase contracts for the purchase of debt or equity securities (the “Purchase Contracts”), and units consisting any combination of such securities (“Units” and, together with the Senior Debt Securities, Subordinated Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Warrants, and Purchase Contracts, the “Securities”). The Securities may be offered separately or together with other Securities, in separate series, in amounts, at prices, and on terms to be set forth in the prospectus and one or more supplements to the prospectus constituting a part of the Registration Statement, and in the Registration Statement.

 

The Senior Debt Securities are to be issued from time to time under the indenture dated as of May 21, 2003 between the Company and Wells Fargo Bank, National Association (as successor to LaSalle Bank National Association), as trustee, filed as Exhibit 4.3 to the Registration Statement (the “Senior Indenture”). The Subordinated Debt Securities are to be issued from time to time under the indenture dated as of November 23, 2015 between the Company and U.S. Bank National Association, as trustee, filed as Exhibit 4.13 to the Registration Statement (the “Subordinated Indenture”). Each series of Preferred Stock is to be issued from time to time under the Restated Articles of Incorporation, as amended, of the Company (the “Articles of Incorporation”) and one or more amendments to the Articles of Incorporation or statements of designations (each, a “Statement of Designations”) to be approved by the Board of Directors of the Company or a committee thereof and filed with the Office of the Secretary of State of the State of South Dakota in accordance with Part 6 of Chapter 47-1A of the South Dakota Business Corporation Act. The Depositary Shares are to be issued from time to time under one or more deposit agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Deposit Agreement”). The Common Stock is to be issued from time to time under the Articles of Incorporation of the Company. The Warrants are to be issued from time to time under one or more warrant agreements substantially in the form filed as Exhibit 4.17 to the Registration Statement, with appropriate insertions (each, a “Warrant Agreement”). The Purchase Contracts are to be issued from time to time under one or more purchase contract agreements substantially in the form filed as Exhibit 4.18 to the Registration Statement, with appropriate insertions (each, a “Purchase Contract Agreement”). The Units are to be issued from time to time under one or more unit purchase agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Unit Purchase Agreement” and, together with the Senior Indenture, the Subordinated Indenture, the Articles of Incorporation, each Statement of Designations, each Deposit Agreement, each Warrant Agreement, and each Purchase Contract Agreement, the “Governing Documents”).

 

 

Black Hills Corporation

August 4, 2020

Page 2

 

As part of the corporate action taken and to be taken (the “Corporate Proceedings”) in connection with issuance of the Securities, the Board of Directors, a committee thereof or certain authorized officers of the Company as authorized by the Board of Directors will, before the Securities are issued under the Registration Statement, authorize the issuance and approve the terms of any Securities to be issued and sold from time to time under the Registration Statement in accordance with the terms of the applicable Governing Documents, within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities.

 

I have examined or am otherwise familiar with the Registration Statement, the Senior Indenture, the form of Subordinated Indenture, the form of Warrant Agreement, the form of Purchase Contract Agreement, the Corporate Proceedings that have occurred as of the date hereof, the Articles of Incorporation 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 limitations, qualifications, exceptions, and assumptions set forth herein, I am of the opinion that:

 

1.       With respect to Senior Debt Securities:

 

(a)       the Senior Indenture constitutes a valid and binding obligation of the Company;

 

(b)       upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture in respect of such Senior Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

(c)       upon (i) completion of the actions in paragraph 1(b) above, (ii) due execution, issuance, and delivery of such Senior Debt Securities pursuant to the Senior Indenture and such supplemental indenture, and (iii) due authentication by the trustee and/or authenticating agent under the Senior Indenture and such supplemental indenture of such Senior Debt Securities, such Senior Debt Securities will be valid and binding obligations of the Company.

 

2.       With respect to Subordinated Debt Securities:

 

(a)       the Subordinated Indenture constitutes a valid and binding obligation of the Company;

 

(b)       upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture in respect of such Subordinated Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

(c)       upon (i) completion of the actions in paragraph 2(b) above, (ii) due execution, issuance, and delivery of such Subordinated Debt Securities pursuant to the Subordinated Indenture and (if applicable) supplemental indenture, and (iii) due authentication by the trustee and/or authenticating agent under the Subordinated Indenture and such supplemental indenture of such Subordinated Debt Securities, such Subordinated Debt Securities will be valid and binding obligations of the Company.

 

3.       With respect to Preferred Stock, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, acknowledgement, delivery and filing with, and recording by, as applicable, an amendment to the Articles of Incorporation or a Statement of Designations with the Office of the Secretary of State of the State of South Dakota in respect of such Preferred Stock, and (iii) due execution, registration of issuance, and delivery of certificates representing such Preferred Stock, such Preferred Stock will be duly and validly issued, fully paid, and nonassessable.

 

 

Black Hills Corporation

August 4, 2020

Page 3

 

4.       With respect to Depositary Shares, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery of a Deposit Agreement, (iii) due authorization, execution, acknowledgement, delivery and filing with, and recording by, as applicable, an amendment to the Articles of Incorporation or a Statement of Designations with the Office of the Secretary of State of the State of South Dakota in respect of the Preferred Stock represented by Depositary Shares, (iv) due execution, registration of issuance, and delivery of certificates representing such Preferred Stock to the depositary or custodian for deposit in accordance with the terms of such Deposit Agreement, and the recordation of such Preferred Stock on the books of the Company in the name of such depositary, custodian, or its nominee, and (v) due execution, registration of issuance, and delivery of depositary receipts evidencing such Depositary Shares pursuant to such Deposit Agreement, such Deposit Agreement will constitute a valid and binding obligation of the Company and the depositary receipts evidencing such Depositary Shares will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Deposit Agreement.

 

5.       With respect to Common Stock, upon (i) completion of all required Corporate Proceedings and (ii) due execution, registration of issuance, and delivery of certificates representing such Common Stock, such Common Stock will be duly and validly issued, fully paid, and nonassessable.

 

6.       With respect to Warrants, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery of a Warrant Agreement, (iii) due execution, issuance, and delivery of warrant certificates evidencing such Warrants pursuant to such Warrant Agreement, countersigned by the warrant agent pursuant to such Warrant Agreement, and (iv) due authorization and reservation of the Securities issuable upon conversion, exchange, or exercise of such Warrants (within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), such Warrant Agreement will constitute a valid and binding obligation of the Company and the warrant certificates evidencing such Warrants will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Warrant Agreement.

 

7.       With respect to Purchase Contracts, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery of a Purchase Contract Agreement, (iii) due execution, issuance, and delivery of certificates evidencing Purchase Contracts pursuant to such Purchase Contract Agreement, (iv) due authentication by the purchase contract agent under such Purchase Contract Agreement of such certificates evidencing such Purchase Contracts, and due execution of each certificate by the holder thereof or by the purchase contract agent as attorney-in-fact for such holder, and due authorization and reservation of the Securities issuable pursuant to such Purchase Contracts (within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), such Purchase Contract Agreement will constitute a valid and binding obligation of the Company and the certificates evidencing such Purchase Contracts will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Purchase Contract Agreement.

 

8.       With respect to Units, upon (i) completion of all required Corporate Proceedings, (ii) if such Units will be issued pursuant to a Unit Purchase Agreement, due authorization, execution, and delivery of such Unit Purchase Agreement, (iii) if such Units will be evidenced by certificates, due execution, issuance, and delivery of such certificates pursuant to such Unit Purchase Agreement, and (iv) due authorization, execution, registration of issuance, and delivery of the Securities comprising such Units (within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), such Unit Purchase Agreement (if applicable) will constitute a valid and binding obligation of the Company and the certificates evidencing of such Units (if applicable) will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Unit Purchase Agreement.

 

The foregoing opinions are subject to the limitation that the validity, binding effect, or enforceability of the provisions of any agreement or instrument is limited by (i) applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium, fraudulent conveyance, fraudulent transfer, voidable transaction, receivership, and other laws of general application affecting the enforcement of creditors’ rights, (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, and the possible unavailability of specific performance, injunctive relief, or other equitable remedies, whether considered in a proceeding at law or in equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies or enforce specific terms, and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United States.

 

 

Black Hills Corporation

August 4, 2020

Page 4

 

The foregoing opinions assume that (a) the Registration Statement and any amendments relating thereto shall have become effective under the Act and will continue to be effective, (b) the Company will remain duly organized, validly existing, and in good standing under the laws of the State of South Dakota, (c) at the time of the authentication and/or delivery of Securities, the Corporate Proceedings related thereto will have been taken and will not have been modified or rescinded, there will not have occurred any change in the law affecting the authorization, execution, delivery, validity, or enforceability of such Securities or Governing Documents, none of the particular terms of such Securities or Governing Documents will violate any applicable law, and neither the issuance and sale of such Securities nor the compliance by the Company with the terms of such Securities or the Governing Documents will result in a violation of any issuance limit in the Corporate Proceedings, any agreement or instrument then binding upon the Company, or any order of any court or governmental body having jurisdiction over the Company, (d) the consideration designated in the applicable Corporate Proceedings for any Securities shall have been received by the Company in accordance with applicable law, (e) the Governing Documents (other than the Senior Indenture by the Company) and Securities shall have been duly authorized, executed, and delivered by all parties thereto (including the Company), and each such party shall have complied with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements or instruments against it and shall have satisfied those legal requirements applicable to it to the extent necessary to make such agreements or instruments enforceable against it, (f) the Senior Indenture and any Subordinated Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended, (g) the terms of the Securities will be established in conformity with the applicable Governing Documents and so as to not violate or be void under applicable law, (h) a prospectus supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law, will be timely filed with the Commission, and (i) any Securities issuable upon conversion, exchange, or exercise of any of the other Securities will have been duly authorized and reserved for issuance (in each case, within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities), and duly executed and delivered and validly issued, as the case may be.

 

I have relied as to certain relevant facts upon certificates of public officials as to the accuracy of such factual matters, without independent verification thereof or other investigation. I have assumed, without investigation, the following: (a) 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 are genuine, and (b) the legal capacity of natural persons who are involved on behalf of the Company to enter into and perform the referenced instrument or agreement or to carry out their role in it.

 

Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that may limit the enforceability of provisions imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration.

 

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, and I express no opinion as to the effect of any other laws. Certain of the Governing Documents and Securities purport, or will purport, as applicable, to be 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 the Registration Statement.

 

This opinion is rendered as of the date first written above and is expressly limited to the matters set forth above, and I render no opinion, whether by implication or otherwise, as to any other matters relating to the Company or the Securities.

 

*    *    *

 

 

Black Hills Corporation

August 4, 2020

Page 5

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to being named in the Registration Statement under the caption “Legal Opinions” with respect to the matters stated therein 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.

 

	Very truly yours,
	/s/ Brian G. Iverson
	Brian G. Iverson, Senior Vice President
	and General Counsel

 

 

 

Exhibit 5.2

 

 

	Faegre Drinker Biddle & Reath LLP
	2200 Wells Fargo Center
	90 South Seventh Street
	Minneapolis, Minnesota 55402
	+1 612 766 7000 main
	+1 612 766 1600 fax

 

August 4, 2020

 

Brian G. Iverson

Senior Vice President and General Counsel

Black Hills Corporation

7001 Mount Rushmore Road

Rapid City, South Dakota 57702

 

Re:       Registration Statement on Form S-3 of Black Hills Corporation

 

Dear Mr. Iverson:

 

You are acting as counsel in connection with a Registration Statement on Form S-3 (the “Registration Statement”) to be filed by Black Hills Corporation, a South Dakota corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”) on the date hereof under the Securities Act of 1933, as amended (the “Act”). 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 Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the rules and regulations under the Act, of an indeterminate amount of securities of the Company, with such securities to include, among others, senior debt securities (the “Senior Debt Securities”), subordinated debt securities (the “Subordinated Debt Securities”), fractional shares of preferred stock represented by depositary shares (the “Depositary Shares”), warrants for the purchase of debt or equity securities (the “Warrants”), purchase contracts for the purchase of debt or equity securities (the “Purchase Contracts”), and units consisting of one or more debt securities, equity securities, Warrants, Purchase Contracts, or any combination of such securities (“Units” and, together with the Senior Debt Securities, Subordinated Debt Securities, Depositary Shares, Warrants, and Purchase Contracts, the “Securities”). The Securities may be offered separately or together with other Securities, in one or more series, and in amounts, at prices and on terms to be set forth in the prospectus and one or more supplements to the prospectus constituting a part of the Registration Statement, and in the Registration Statement.

 

The Senior Debt Securities are to be issued from time to time under the indenture dated as of May 21, 2003 between the Company and Wells Fargo Bank, National Association (as successor to LaSalle Bank National Association), as trustee (the “Senior Trustee”), filed as Exhibit 4.3 to the Registration Statement (the “Senior Indenture”). The Subordinated Debt Securities are to be issued from time to time under the indenture dated as of November 23, 2015 between the Company and U.S. Bank National Association, as trustee (the “Subordinated Trustee”), filed as Exhibit 4.13 to the Registration Statement (the “Subordinated Indenture”). The Depositary Shares are to be issued from time to time under one or more deposit agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Deposit Agreement”). The Warrants are to be issued from time to time under one or more warrant agreements substantially in the form filed as Exhibit 4.17 to the Registration Statement, with appropriate insertions (each, a “Warrant Agreement”). The Purchase Contracts are to be issued from time to time under one or more purchase contract agreements substantially in the form filed as Exhibit 4.18 to the Registration Statement, with appropriate insertions (each, a “Purchase Contract Agreement”). The Units are to be issued from time to time under one or more unit purchase agreements in a form to be filed and incorporated into the Registration Statement, with appropriate insertions (each, a “Unit Purchase Agreement” and, together with the Senior Indenture, the Subordinated Indenture, any supplemental indentures to the Senior Indenture or the Subordinated Indenture, each Deposit Agreement, each Warrant Agreement, and each Purchase Contract Agreement, the “Governing Documents”).

 

 

Brian G. Iverson, Esq.

August 4, 2020

Page 2

 

As part of the corporate action taken and to be taken (the “Corporate Proceedings”) in connection with issuance of the Securities, the Board of Directors of the Company, a committee thereof or certain officers of the Company to whom such authority has been properly delegated by the Board of Directors will be required to, before the Securities are issued under the Registration Statement, duly authorize the issuance and approve the terms of any Securities to be issued and sold from time to time under the Registration Statement in accordance with the terms of the applicable Governing Documents, and within the limits of the then remaining authorized but unreserved and unissued amounts of such Securities.

 

We have examined or are otherwise familiar with the Registration Statement, the Senior Indenture, the Subordinated Indenture, the form of Warrant Agreement, the form of Purchase Contract Agreement, 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 limitations, qualifications, exceptions, and assumptions set forth herein, we are of the opinion that:

 

1.             With respect to Senior Debt Securities:

 

(a)         the Senior Indenture constitutes a valid and binding obligation of the Company;

 

(b)         upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture by the Company and the Senior Trustee in respect of such Senior Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

 

Brian G. Iverson, Esq.

August 4, 2020

Page 3

 

(c)         upon (i) completion of the actions in paragraph 1(b) above, (ii) due execution, issuance, and delivery by the Company of such Senior Debt Securities pursuant to the Senior Indenture and such supplemental indenture, (iii) due authentication by the Senior Trustee and/or authenticating agent under the Senior Indenture and such supplemental indenture of such Senior Debt Securities, and (iv) in the case of Senior Debt Securities issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Senior Debt Securities will be valid and binding obligations of the Company.

 

2.             With respect to Subordinated Debt Securities:

 

(a)         the Subordinated Indenture constitutes a valid and binding obligation of the Company;

 

(b)         upon (i) completion of all required Corporate Proceedings, and (ii) due authorization, execution, and delivery of a supplemental indenture by the Company and the Subordinated Trustee in respect of such Subordinated Debt Securities, such supplemental indenture will constitute a valid and binding obligation of the Company; and

 

(c)         upon (i) completion of the actions in paragraph 2(b) above, (ii) due execution, issuance, and delivery by the Company of such Subordinated Debt Securities pursuant to the Subordinated Indenture and such supplemental indenture, (iii) due authentication by the Subordinated Trustee and/or authenticating agent under the Subordinated Indenture and such supplemental indenture of such Subordinated Debt Securities, and (iv) in the case of Subordinated Debt Securities issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Subordinated Debt Securities will be valid and binding obligations of the Company.

 

3.             With respect to Depositary Shares, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the depositary or custodian for deposit of a Deposit Agreement, (iii) due authorization, execution, acknowledgement, delivery and filing with, and recording by, as applicable, an amendment to the Articles of Incorporation of the Company or a statement of designations with the Office of the Secretary of State of the State of South Dakota in respect of the preferred stock of the Company represented by Depositary Shares, (iv) due authorization and issuance of such preferred stock (within the limits of the then remaining authorized but unreserved or unissued amounts of preferred stock), (v) due execution, registration of issuance, and delivery of certificates representing such preferred stock to the depositary or custodian for deposit in accordance with the terms of such Deposit Agreement, and the recordation of such preferred stock on the books of the Company in the name of such depositary, custodian, or its nominee, and (vi) due execution, registration of issuance, and delivery of depositary receipts evidencing such Depositary Shares pursuant to such Deposit Agreement, such Deposit Agreement will constitute a valid and binding obligation of the Company and the depositary receipts evidencing such Depositary Shares will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Deposit Agreement.

 

 

Brian G. Iverson, Esq.

August 4, 2020

Page 4

 

4.             With respect to Warrants, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the warrant agent of a Warrant Agreement, (iii) due execution, registration of issuance, and delivery of warrant certificates evidencing such Warrants pursuant to such Warrant Agreement, countersigned by the warrant agent pursuant to such Warrant Agreement, (iv) due authorization and reservation of the securities issuable upon conversion, exchange, or exercise of such Warrants (within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), and (v) in the case of Warrants issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Warrant Agreement will constitute a valid and binding obligation of the Company and the warrant certificates evidencing such Warrants will be valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Warrant Agreement.

 

5.             With respect to Purchase Contracts, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the purchase contract agent of a Purchase Contract Agreement, (iii) due execution, registration of issuance, and delivery of certificates evidencing such Purchase Contracts pursuant to such Purchase Contract Agreement, (iv) due authentication by the purchase contract agent under such Purchase Contract Agreement of such certificates evidencing such Purchase Contracts, and due execution of each certificate by the holder thereof or by the purchase contract agent as attorney-in-fact for such holder, (v) due authorization and reservation of the securities issuable pursuant to such Purchase Contracts (within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), and (vi) in the case of Purchase Contracts issuable upon conversion, exercise or settlement of, or constituting a component of, any other Securities, completion of all actions in respect of such other Securities referred to in the applicable paragraph hereof, such Purchase Contract Agreement will constitute a valid and binding obligation of the Company and the certificates evidencing such Purchase Contracts will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Purchase Contract Agreement.

 

6.             With respect to Units, upon (i) completion of all required Corporate Proceedings, (ii) due authorization, execution, and delivery by the Company and the unit purchase agent of a Unit Purchase Agreement, (iii) if such Units will be evidenced by certificates, due execution, issuance, and delivery of such certificates pursuant to such Unit Purchase Agreement, and (iv) due authorization, execution, issuance, and delivery of the securities comprising such Units (within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), such Unit Purchase Agreement will constitute a valid and binding obligation of the Company and the certificates evidencing such Units (if applicable) will be the valid and binding obligations of the Company and will entitle the holders thereof to the rights specified in such Unit Purchase Agreement.

 

 

Brian G. Iverson, Esq.

August 4, 2020

Page 5

 

The foregoing opinions are subject to the limitation that the validity, binding effect, or enforceability of the provisions of any agreement or instrument is limited by (i) applicable bankruptcy, insolvency, reorganization, assignment for the benefit of creditors, moratorium, fraudulent conveyance, fraudulent transfer, voidable transaction, receivership, and other laws of general application affecting the enforcement of creditors’ rights, (ii) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith, fair dealing, and the possible unavailability of specific performance, injunctive relief, or other equitable remedies, whether considered in a proceeding at law or in equity, (iii) public policy considerations that may limit the rights of parties to obtain specific remedies or enforce specific terms, and (iv) governmental authority to limit, delay or prohibit the making of payments outside the United States.

 

The foregoing opinions assume that (a) the Registration Statement and any amendments relating thereto shall have become effective under the Act and will continue to be effective, (b) the Company is and will remain duly organized, validly existing, and in good standing under the laws of the State of South Dakota, (c) the Company has had and will have the power and authority under its organizational documents and the laws of its jurisdiction of incorporation to authorize, execute and deliver any relevant documents and to issue and deliver any Securities, (d) at the time of the issuance, execution, authentication acknowledgement and/or delivery of any Securities or Governing Documents, the Corporate Proceedings related thereto will have been validly taken and will not have been modified or rescinded, there will not have occurred any change in the law affecting the authorization, issuance, execution, authentication, acknowledgement, delivery, filing, validity, or enforceability of such Securities or Governing Documents, none of the particular terms of such Securities or Governing Documents will violate or be void or voidable under any applicable law, the issuance of such Securities will not result in a violation of any issuance limit in the Corporate Proceedings, and neither the authorization, issuance, execution, authentication, acknowledgement, delivery, filing validity, or enforceability of such Securities nor the compliance by the Company with the terms of such Securities or the Governing Documents will result in a violation of any issuance limit in the Corporate Proceedings, any agreement or instrument then binding upon the Company, or any order of any court or governmental body having jurisdiction over the Company, (e) the consideration designated in the applicable Corporate Proceedings and any relevant agreements for any Securities shall have been received by the Company and such consideration shall be legally sufficient, (f) the Governing Documents and Securities shall have been duly authorized, executed, and delivered by the Company and each other party thereto, and each other party thereto shall have complied with all legal requirements pertaining to its status as such status relates to the right to enforce such agreements or instruments against it and shall have satisfied those legal requirements applicable to it to the extent necessary to make such agreements or instruments enforceable against it, (g) the terms of the Securities will be established in conformity with the applicable Governing Documents, (h) a prospectus supplement and any other offering material describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law, will be timely filed with the Commission, (i) any securities issuable upon conversion, exchange, or exercise of any of the other Securities will have been duly authorized and reserved for issuance (in each case, within the limits of the then remaining authorized but unreserved and unissued amounts of such securities), and any issuance of such Securities will be effected in accordance with the terms and conditions set forth in such other Securities and the Governing Documents related thereto, and (j) any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities will be obtained.

 

 

Brian G. Iverson, Esq.

August 4, 2020

Page 6

 

We have relied as to certain relevant facts upon certificates of public officials and certificates of and information provided by officers and employees of the Company as to the accuracy of such factual matters, in each case without independent verification thereof or other investigation. We have assumed, without investigation, the following: (a) the genuineness of signatures appearing upon certifications, documents, and proceedings, (b) each document submitted to us for review is accurate and complete, each such document that is an original is authentic and each such document that is a copy conforms to an authentic original, (c) the legal capacity of natural persons who are involved on behalf of the Company to enter into and perform the referenced instrument or agreement or to carry out their role in it, (d) the truth, accuracy and completeness of the information, representations and warranties contained in the documents, instruments, certificates and records we have reviewed, (e) the absence of any undisclosed modifications to the agreements and instruments reviewed by us, and (f) that New York law has or will be chosen to govern each Governing Document and the Securities and/or certificates evidencing such Securities described in the foregoing opinions.

 

Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that (a) 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, (b) limit the enforcement of provisions of instruments or agreements that purport to require waiver of the obligations of good faith, fair dealing, diligence and reasonableness, (c) limit the availability of a remedy under certain circumstances where another remedy has been elected, (d) 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 insofar as such provisions otherwise contravene public policy, (e) may, where less than all of an instrument or agreement may be unenforceable, limit the enforceability of the balance of the instrument or agreement to circumstances in which the unenforceable portion is not an essential part of the agreed exchange, (f) govern and afford judicial discretion regarding the determination of damages and entitlement to attorneys’ fees and other costs, (g) 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 instrument or agreement, (h) may require mitigation of damages, (i) may limit the enforceability of certain waivers, and (j) provide a time limitation after which a remedy may not be enforced (i.e., statutes of limitation).

 

 

Brian G. Iverson, Esq.

August 4, 2020

Page 7

 

We express no opinion as to (i) whether a court would award a judgment in a currency other than United States dollars or as to the enforceability of any provision specifying rates of exchange for, or requiring indemnity against loss in, converting into a specified currency the proceeds or amount of a court judgment in another currency, (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, or (iii) any provision waiving legal, statutory or equitable defenses or other procedural, judicial or administrative rights.

 

Without limiting any other qualifications set forth herein, the opinions expressed herein are subject to the effect of generally applicable laws that may limit the enforceability of provisions imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration.

 

Our opinions set forth herein are limited to the laws of the State of New York.

 

This opinion is rendered as of the date first written above and is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Securities or the Governing Documents.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to being named in the Registration Statement under the caption “Legal Opinions” with respect to the matters stated therein without implying or admitting that we are “experts” within the meaning of the Act, or other rules and regulations of the Commission issued thereunder with respect to any part of the Registration Statement, including this exhibit.

 

	Very truly yours,
	FAEGRE DRINKER BIDDLE & REATH LLP
	By:	/s/ Brandon C. Mason
	Brandon C. Mason, Partner

 

 

 

Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated February 14, 2020 relating to the financial statements of Black Hills Corporation and the effectiveness of Black Hills Corporation's internal control over financial reporting, appearing in the Annual Report on Form 10-K of Black Hills Corporation for the year ended December 31, 2019. We also consent to the reference to us under the heading "Experts" in such Registration Statement.

 

/s/ DELOITTE & TOUCHE LLP

Minneapolis, Minnesota

August 3, 2020

 

 

 

Exhibit 24.1

 

POWER OF ATTORNEY

 

Each of the undersigned officers and directors of Black Hills Corporation, a South Dakota corporation, hereby constitutes and appoints Linden R. Evans and Brian G. Iverson, and each of them, as his or her true and lawful attorney-in-fact and agent, severally, with full power of substitution and resubstitution, in his or her name and on his or her behalf, in any and all capacities, to sign any and all amendments (including post-effective amendments and supplements) to this Registration Statement, and to file the same with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this Registration Statement or any amendments or supplements hereto in and about the premises, as fully to all intents and purposes as he or she might or could do in person, thereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities in each case on August 4, 2020.

 

Signature		Title
/s/ Linden R. Evans		Director, President and Chief Executive Officer (principal executive officer)
Linden R. Evans
/s/ Richard W. Kinzley		Senior Vice President and Chief Financial Officer (principal financial and accounting officer)
Richard W. Kinzley
/s/ Tony A. Jensen		Director
Tony A. Jensen
/s/ Michael H. Madison		Director
Michael H. Madison
/s/ Kathleen S. McAllister		Director
Kathleen S. McAllister
/s/ Steven R. Mills		Director
Steven R. Mills
/s/ Robert P. Otto		Director
Robert P. Otto
/s/ Rebecca B. Roberts		Director
Rebecca B. Roberts
/s/ Mark A. Schober		Director
Mark A. Schober
/s/ Teresa A. Taylor		Director
Teresa A. Taylor
/s/ John B. Vering		Director
John B. Vering

 

 

Exhibit 25.1

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

 

Washington, D.C. 20549

 

 

FORM T-1

 

STATEMENT OF ELIGIBILITY

UNDER THE TRUST INDENTURE ACT OF 1939 OF A

CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

 

¨ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2)

 

WELLS FARGO BANK, NATIONAL ASSOCIATION

(Exact name of trustee as specified in its charter)

 

A National Banking Association		94-1347393
(Jurisdiction of incorporation or organization if not a U.S. national bank)		(I.R.S. Employer Identification No.)

 

101 North Phillips Avenue
Sioux Falls, South Dakota		57104
(Address of principal executive offices)		(Zip code)

 

Wells Fargo & Company
Law Department, Trust Section

MAC N9305-175

Sixth Street and Marquette Avenue, 17^th Floor

Minneapolis, Minnesota 55479

(612) 667-4608

(Name, address and telephone number of agent for service)

 

 

BLACK HILLS CORPORATION

(Exact name of registrant as specified in its charter)

 

 

South Dakota (State or other jurisdiction of incorporation or organization)

46-0458824 (I.R.S. Employer Identification Number)

 

 

7001 Mount Rushmore Road

Rapid City, South Dakota 57702

(605) 721-1700

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

Debt Securities

 

 

 

Item 1. General Information. Furnish the following information as to the trustee:

 

(a)

Name and address of each examining or supervising authority to which it is subject.

 

Comptroller of the Currency

Treasury Department

Washington, D.C.

 

Federal Deposit Insurance Corporation

Washington, D.C.

 

Federal Reserve Bank of San Francisco

San Francisco, California 94120

 

(b)

Whether it is authorized to exercise corporate trust powers.

 

The trustee is authorized to exercise corporate trust powers.

 

Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None with respect to the trustee.

 

No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.

 

Item 15. Foreign Trustee. Not applicable.

 

Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility.

 

	Exhibit 1.	A copy of the Articles of Association of the trustee now in effect.*
	Exhibit 2.	A copy of the Comptroller of the Currency Certificate of Corporate Existence for Wells Fargo Bank, National Association, dated January 14, 2015.*
	Exhibit 3.	A copy of the Comptroller of the Currency Certification of Fiduciary Powers for Wells Fargo Bank, National Association, dated January 6, 2014.*
	Exhibit 4.	Copy of By-laws of the trustee as now in effect.*
	Exhibit 5.	Not applicable.
	Exhibit 6.	The consent of the trustee required by Section 321(b) of the Act.
	Exhibit 7.	A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
	Exhibit 8.	Not applicable.
	Exhibit 9.	Not applicable.

 

* Incorporated by reference to the exhibit of the same number to the trustee’s Form T-1 filed as exhibit to the Filing 305B2 dated March 13, 2015 of file number 333-190926.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston and State of Massachusetts on the 3^rd day of August, 2020.

 

	WELLS FARGO BANK, NATIONAL ASSOCIATION
	/s/ Patrick T. Giordano
	Patrick T. Giordano
	Vice President

 

 

EXHIBIT 6

 

August 3, 2020

 

Securities and Exchange Commission

Washington, D.C. 20549

 

Gentlemen:

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

	Very truly yours,
	WELLS FARGO BANK, NATIONAL ASSOCIATION
	/s/ Patrick T. Giordano
	Patrick T. Giordano
	Vice President

 

 

Exhibit 7

 

Consolidated Report of Condition of

 

Wells Fargo Bank National Association

of 101 North Phillips Avenue, Sioux Falls, SD 57104

And Foreign and Domestic Subsidiaries,

at the close of business March 31, 2020, filed in accordance with 12 U.S.C. §161 for National Banks.

 

				Dollar Amounts
				In Millions
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin				$	21,745
Interest-bearing balances					123,531
Securities:
Held-to-maturity securities					169,848
Available-for-sale securities					242,111
Equity Securities with readily determinable fair value not held for trading					122
Federal funds sold and securities purchased under agreements to resell:
Federal funds sold in domestic offices					82
Securities purchased under agreements to resell					58,438
Loans and lease financing receivables:
Loans and leases held for sale					14,855
Loans and leases, net of unearned income		968,033
LESS: Allowance for loan and lease losses		10,893
Loans and leases, net of unearned income and allowance					957,140
Trading Assets					58,848
Premises and fixed assets (including capitalized leases)					11,733
Other real estate owned					235
Investments in unconsolidated subsidiaries and associated companies					13,202
Direct and indirect investments in real estate ventures					12
Intangible assets					32,598
Other assets					59,196
Total assets				$	1,763,696
LIABILITIES
Deposits:
In domestic offices				$	1,403,302
Noninterest-bearing		452,458
Interest-bearing		950,844
In foreign offices, Edge and Agreement subsidiaries, and IBFs					44,243
Noninterest-bearing		858
Interest-bearing		43,385
Federal funds purchased and securities sold under agreements to repurchase:
Federal funds purchased in domestic offices					2,055
Securities sold under agreements to repurchase					6,389

 

 

		Dollar Amounts
		In Millions
Trading liabilities			15,841
Other borrowed money
(Includes mortgage indebtedness and obligations under capitalized leases)			76,704
Subordinated notes and debentures			12,499
Other liabilities			32,411
Total liabilities		$	1,593,444
EQUITY CAPITAL
Perpetual preferred stock and related surplus			0
Common stock			519
Surplus (exclude all surplus related to preferred stock)			114,728
Retained earnings			54,130
Accumulated other comprehensive income			844
Other equity capital components			0
Total bank equity capital			170,221
Noncontrolling (minority) interests in consolidated subsidiaries			31
Total equity capital			170,252
Total liabilities, and equity capital		$	1,763,696

 

I, John R. Shrewsberry, Sr. EVP & CFO of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.

 

	John R. Shrewsberry
	Sr. EVP & CFO

 

We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Directors

Maria R. Morris

Theodore F. Craver, Jr.

Juan A. Pujadas

 

 

Exhibit 25.2

 

UNITED STATES

securities and exchange commission

Washington, D.C. 20549

 

 

FORM T-1

 

Statement of Eligibility Under

The Trust Indenture Act of 1939 of a

Corporation Designated to Act as Trustee

Check if an Application to Determine Eligibility of

a Trustee Pursuant to Section 305(b)(2)

 

 

U.S. BANK NATIONAL ASSOCIATION

(Exact name of Trustee as specified in its charter)

 

31-0841368

I.R.S. Employer Identification No.

 

800 Nicollet Mall Minneapolis, Minnesota	55402
(Address of principal executive offices)	(Zip Code)

 

Linda Garcia

U.S. Bank National Association

190 S. LaSalle Street

Chicago, IL 60603

(312) 332-6781

(Name, address and telephone number of agent for service)

 

Black Hills Corporation

(Issuer with respect to the Securities)

South Dakota	46-0458824
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

 

7001 Mount Rushmore Road Rapid City, South Dakota	57702
(Address of Principal Executive Offices)	(Zip Code)

 

Junior Subordinated Debt Securities

(Title of the Indenture Securities)

 

 

 

FORM T-1

 

Item 1.

GENERAL INFORMATION. Furnish the following information as to the Trustee.

 

a)

Name and address of each examining or supervising authority to which it is subject.

Comptroller of the Currency

Washington, D.C.

 

b)

Whether it is authorized to exercise corporate trust powers.

Yes

 

Item 2.

AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.

None

 

Items 3-15

Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee.

 

Item 16.

LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.

 

1.

A copy of the Articles of Association of the Trustee.*

 

2.

A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2.

 

3.

A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3.

 

4.

A copy of the existing bylaws of the Trustee.**

 

5.

A copy of each Indenture referred to in Item 4. Not applicable.

 

6.

The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6.

 

7.

Report of Condition of the Trustee as of March 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7.

 

* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.

 

** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.

 

 

SIGNATURE

 

Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, State of Illinois on the 3rd of August, 2020.

 

	By:	/s/ Linda Garcia
		Linda Garcia
		Vice President

 

 

Exhibit 2

 

 

 

 

Exhibit 3

 

 

 

 

Exhibit 6

 

CONSENT

 

In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.

 

 

Dated: August 3, 2020

 

 

	By:	/s/ Linda Garcia
		Linda Garcia
		Vice President

 

 

 

 

Exhibit 7

U.S. Bank National Association

Statement of Financial Condition

As of 3/31/2020

 

($000’s)

 

		3/31/2020
Assets
Cash and Balances Due From Depository Institutions		$	46,699,020
Securities			122,149,987
Federal Funds			2,807
Loans & Lease Financing Receivables			316,711,655
Fixed Assets			9,075,777
Intangible Assets			12,477,802
Other Assets			26,012,043
Total Assets		$	533,129,091
Liabilities
Deposits		$	405,823,094
Fed Funds			1,428,527
Treasury Demand Notes			0
Trading Liabilities			1,392,214
Other Borrowed Money			55,078,404
Acceptances			0
Subordinated Notes and Debentures			3,850,000
Other Liabilities			14,338,298
Total Liabilities		$	481,910,537
Equity
Common and Preferred Stock			18,200
Surplus			14,266,915
Undivided Profits			36,132,907
Minority Interest in Subsidiaries			800,532
Total Equity Capital		$	51,218,554
Total Liabilities and Equity Capital		$	533,129,091