THIRD AMENDMENT TO THE CREDIT AGREEMENT


THIS THIRD AMENDMENT TO THE CREDIT AGREEMENT (this “Amendment”), dated as of July 10, 2008 among Black Hills Corporation, a South Dakota corporation (“Borrower”), ABN AMRO Bank N.V., in its capacity as agent for the Banks under the Credit Agreement described below (in such capacity, the “Administrative Agent”), and as a Bank, and the other Banks party hereto.


WITNESSETH THAT:


WHEREAS, the Borrower, Administrative Agent and the Banks have entered into that certain Credit Agreement dated as of May 5, 2005 (as the same has been amended, modified or restated prior to the effectiveness hereof, the “Credit Agreement”); and


WHEREAS, the Borrower desires to amend certain terms of the Credit Agreement, as set forth below; and


WHEREAS, the Administrative Agent and the Required Banks are willing, subject to the terms hereof, to so amend the Credit Agreement.


NOW, THEREFORE, in consideration of the recitals set forth above and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:


Section 1.  Definitions.  All capitalized terms used but not otherwise defined in this Amendment shall have the meaning ascribed to them in the Credit Agreement.  Unless otherwise specified, all section references herein refer to sections of the Credit Agreement.


Section 2.  Amendments to Credit Agreement.  


Effective upon the satisfaction of each of the conditions precedent set forth in Section 4 below, the Credit Agreement is hereby amended as follows: 





	
             
 	
            effective as of the date hereof, the Credit Agreement is hereby amended as follows:
 





 (A)      The term “$300,000,000” appearing in the definition of “Marketing Subsidiary Excluded Credit Facilities” in Section 1.1 of the Credit Agreement is hereby deleted in its entirety and the term “$400,000,000” is hereby substituted therefor:


(B)      Section 7.9 of the Credit Agreement shall be amended by deleting the term “and” appearing at the end of Section 7.9(n), deleting the term “.” at the end of Section 7.9(o) and substituting the term “;” therefor, and inserting the following language as new Sections 7.9(p) and 7.9(q), respectively:


“(p)     Liens (i) of a collecting bank arising under the UCC on items in the course of collection, (ii) in favor of a banking institution arising as a matter of law, or which arise under the documents governing the deposit relationship, encumbering deposits (including the right of set-off, charge-back rights, and refund rights) and which are within 






the general parameters customary in the banking industry, or (iii) encumbering customary deposits and margin deposits and other Liens attaching to brokerage accounts or arising under or in connection with Derivative Arrangements or Derivative Obligations, in each case incurred in the ordinary course of business; and"


“(q)     Other Liens made in the ordinary course of business of Borrower or its Subsidiaries so long as the aggregate amount of Indebtedness or other obligations secured by such Liens does not exceed, in the aggregate, $25,000,000."


(C)      Schedule 2.1 to the Credit Agreement shall be amended by deleting the schedule in its entirety and substituting Schedule 2.1 attached hereto as EXHIBIT A therefor.


Section 3.  Ratification.  The Borrower hereby ratifies, acknowledges, affirms and reconfirms its rights, interests and obligations under each Credit Document, as amended hereby,  and agrees to perform each of its obligations thereunder as and when required.  By executing this Amendment, the Borrower hereby further ratifies, acknowledges, affirms and reconfirms that each Credit Document, as amended hereby, constitutes a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, and that each such Credit Document, as amended hereby, is in full force and effect.


 


Section 4.  Conditions.  The effectiveness of this Amendment is subject to the following conditions precedent:


 


Section 4.1  The Borrower, the Administrative Agent and the Required Banks shall have executed and delivered this Amendment, and the Borrower shall have executed and/or delivered such other documents and instruments as Administrative Agent may reasonably require to effectuate the terms of this Amendment.


 


Section 4.2  Borrower shall have paid to each of the Banks executing and delivering this Amendment on or prior to the date hereof, for such Bank’s own account, a fully-earned, non-refundable amendment fee in an amount equal to [__]% multiplied by such Bank’s Percentage (prior to the effectiveness hereof), in immediately available funds.


 


Section 4.3      Borrower shall have paid to each new Bank and each Bank that increases its Commitment in accordance with Section 2.12(b) of the Credit Agreement concurrently with this Amendment (such new Bank or Bank increasing its Commitment, an “Added Bank”), for such Added Bank’s own account, a fully-earned, non-refundable closing fee of (x) if the amount of such Added Bank’s new or increased Commitment is greater than or equal to $15,000,000 and less than $20,000,000, [__]% multiplied by the amount of such Added Bank’s new or increased Commitment purchased pursuant to Section 2.12(b) of the Credit Agreement, or (y) if the amount of such Added Bank’s new or increased Commitment is equal to or greater than $20,000,000, [__]% multiplied
by such Added Bank’s new or increased Commitment purchased pursuant to Section 2.12(b) of the Credit Agreement, in immediately available funds.


 


2






Section 4.4  The representations and warranties set forth in Section 5 of this Amendment shall be true and correct.


 


Section 4.5  All proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be reasonably satisfactory to the Administrative Agent and its legal counsel.


 


Section 5.  Representations and Warranties.    To induce the Administrative Agent and the Banks party hereto to enter into this Amendment, the Borrower represents and warrants to the Administrative Agent and the Banks that (i) the execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate action on the part of the Borrower and that this Amendment has been duly executed and delivered by the Borrower and this Amendment and the Credit Agreement, as amended hereby, constitutes valid and binding obligations of the Borrower enforceable in accordance with its terms, (ii) no Default or Event of Default (after giving effect to this Amendment) has occurred and is continuing under the Credit Agreement or would result from the execution and delivery of this Amendment, and (iii) each of
the representations and warranties set forth in Section 5 of the Credit Agreement, as amended hereby, is true and correct in all material respects as of the date hereof, except that if any such representation or warranty (x) relates solely to an earlier date it need only remain true in all material respects as of such date, or (y) is already qualified by materiality, in which case it shall be true and correct in all respects.


 


Section 6.  Severability.   Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. 


 


Section 7.  References.  Any reference to the Credit Agreement contained in any document, instrument or agreement executed in connection with the Credit Agreement shall be deemed to be a reference to the Credit Agreement as modified by this Amendment.  


 


Section 8.  Counterparts.  This Amendment may be executed in one or more counterparts, each of which shall constitute an original, but all of which taken together shall be one and the same instrument.  This Amendment may also be executed by facsimile or electronic means and each facsimile or electronic signature hereto shall be deemed for all purposes to be an original signatory page.


 


Section 9.  Costs.  The Borrower agrees to pay on demand all reasonable costs and expenses incurred by the Administrative Agent (including fees and expenses of counsel) incurred in connection with the negotiation and preparation of this Amendment.


 


Section  10.     Governing Law.  The validity and interpretation of this Amendment and the terms and conditions set forth herein, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any provisions relating to conflict of laws other than section 5-1401 of the New York General Obligations Laws.


 


3






 


Section 11.      Miscellaneous.  This Amendment shall be deemed to be a Credit Document.


 


- Remainder of page left blank; signature pages follow -


 


4







In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered in New York, New York by their duly authorized officers as of the day and year first above written.


 


BLACK HILLS CORPORATION, a South Dakota corporation


 





	
             
 	
            By:
 	
            /s/ David R. Emery
 









	
             
 	
            Name:
 	
            David R. Emery
 









	
             
 	
            Title:
 	
            President and CEO
 





 








In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered in New York, New York by their duly authorized officers as of the day and year first above written.


 


ABN AMRO Bank N.V.


 





	
             
 	
            By:
 	
            /s/ Charles F. Randolph
 









	
             
 	
            Name:
 	
            Charles F. Randolph
 









	
             
 	
            Title:
 	
            Managing Director
 





 





	
             
 	
            By:
 	
            /s/ Kris A. Grosshans
 









	
             
 	
            Name:
 	
            Kris A. Grosshans
 









	
             
 	
            Title:
 	
            Managing Director
 





 


 


Wells Fargo Bank N.A.


 





	
             
 	
            By:
 	
            /s/ Sushim R. Shah
 









	
             
 	
            Name:
 	
            Sushim R. Shah
 









	
             
 	
            Title:
 	
            VP & Senior Relationship Manager
 





 


 


Credit Suisse, Cayman Islands Branch


 





	
             
 	
            By:
 	
            /s/ James Moran
 









	
             
 	
            Name:
 	
            James Moran
 









	
             
 	
            Title:
 	
            Managing Director
 





 





	
             
 	
            By:
 	
            /s/ Nupur Kumar
 









	
             
 	
            Name:
 	
            Nupur Kumar
 









	
             
 	
            Title:
 	
            Associate
 





 


 


Royal Bank Canada,


 





	
             
 	
            By:
 	
            /s/ Linda M. Stephens
 









	
             
 	
            Name:
 	
            Linda M. Stephens
 









	
             
 	
            Title:
 	
            Authorized Signatory
 





 


 


UNION BANK OF CALIFORNIA, N.A.


 





	
             
 	
            By:
 	
            /s/ Robert J. Cole
 









	
             
 	
            Name:
 	
            Robert J. Cole
 





Title:   Vice President








In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered in New York, New York by their duly authorized officers as of the day and year first above written.


BAYERISCHE LANDESBANK


 





	
             
 	
            By:
 	
            /s/ John Gregory
 









	
             
 	
            Name:
 	
            John Gregory
 









	
             
 	
            Title:
 	
            First Vice President
 





 





	
             
 	
            By:
 	
            /s/ Nikolal von Mengden
 









	
             
 	
            Name:
 	
            Nikolal von Mengden
 









	
             
 	
            Title:
 	
            Senior Vice President
 





 


 


BMO Capital Markets Financing, Inc.


 





	
             
 	
            By:
 	
            /s/ Gumaro Tijerina
 









	
             
 	
            Name:
 	
            Gumaro Tijerina
 









	
             
 	
            Title:
 	
            Vice President
 





 


 


Societe Generale


 





	
             
 	
            By:
 	
            /s/ Yao Wang
 









	
             
 	
            Name:
 	
            Yao Wang
 









	
             
 	
            Title:
 	
            Vice President
 





 


 


U.S. Bank National Association


 





	
             
 	
            By:
 	
            /s/ Christine Dean
 









	
             
 	
            Name:
 	
            Christine Dean
 









	
             
 	
            Title:
 	
            Vice President
 





 


 


COBANK, ACB


 





	
             
 	
            By:
 	
            /s/ Brent R. Knight
 









	
             
 	
            Name:
 	
            Brent R. Knight
 









	
             
 	
            Title:
 	
            Vice President
 





 


 









In Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered in New York, New York by their duly authorized officers as of the day and year first above written.


Fifth Third Bank


 





	
             
 	
            By:
 	
            /s/ Ashley Radel
 









	
             
 	
            Name:
 	
            Ashley Radel
 









	
             
 	
            Title:
 	
            Officer
 





 


Mizuho Corporate Bank, Ltd.


 





	
             
 	
            By:
 	
            /s/ Leon Mo
 









	
             
 	
            Name:
 	
            Leon Mo
 









	
             
 	
            Title:
 	
            Senior Vice President
 





 


CALYON NEW YORK BRANCH


 





	
             
 	
            By:
 	
            /s/ Page Dillehunt
 









	
             
 	
            Name:
 	
            Page Dillehunt
 









	
             
 	
            Title:
 	
            Managing director
 





 





	
             
 	
            By:
 	
            /s/ Sharada Manne
 









	
             
 	
            Name:
 	
            Sharada Manne
 









	
             
 	
            Title:
 	
            Director
 





 


The Bank of Nova Scotia


 





	
             
 	
            By:
 	
            /s/ Jim Trimble
 









	
             
 	
            Name:
 	
            Jim Trimble
 









	
             
 	
            Title:
 	
            Managing Director
 





 


ROYAL BANK OF SCOTLAND PLC


 





	
             
 	
            By:
 	
            /s/ Andrew N. Taylor
 









	
             
 	
            Name:
 	
            Andrew N. Taylor
 









	
             
 	
            Title:
 	
            Vice President
 





 


Scotiabanc Inc.


 





	
             
 	
            By:
 	
            /s/ J.F. Todd
 









	
             
 	
            Name:
 	
            J.F. Todd
 









	
             
 	
            Title:
 	
            Managing Director
 





 








EXHIBIT A


 


Schedule 2.1


 


COMMITMENTS


 





	
            Bank

 
 	
            Commitment Amount

 
 	
            Pro Rata Share

 
 
	
            ABN AMRO Bank N.V.

 
 	
            $47,000,000.00 
 	
            8.95238095%
 
	
            Union Bank of California, N.A.

 
 	
            $52,000,000.00 
 	
            9.90476190%
 
	
            U.S. Bank National Association

 
 	
            $32,000,000.00 
 	
            6.09523810%
 
	
            Bank of America, N.A.

 
 	
            $30,000,000.00 
 	
            5.71428571%
 
	
            CoBank, ACB

 
 	
            $62,000,000.00 
 	
            11.80952381%
 
	
            BMO/Harris Nesbitt Financing, Inc.

 
 	
            $30,000,000.00 
 	
            5.71428571%
 
	
            The Bank of Nova Scotia

 
 	
            $70,000,000.00 
 	
            13.33333333%
 
	
            Wells Fargo Bank, N.A.

 
 	
            $55,000,000.00 
 	
            10.47619048%
 
	
            Credit Suisse
 	
            $25,000,000.00

 
 	
            4.76190476%
 
	
            Bayern LB

 
 	
            $24,000,000.00 
 	
            4.57142857%
 
	
            Societe Generale

 
 	
            $24,000,000.00 
 	
            4.57142857%
 
	
            Calyon, New York Branch

 
 	
            $18,000,000.00 
 	
            3.42857143%
 
	
            Fifth Third Bank

 
 	
            $14,000,000.00 
 	
            2.66666667%
 
	
            Mizuho Corporate Bank, Ltd.

 
 	
            $14,000,000.00 
 	
            2.66666667%
 
	
            Royal Bank of Canada

 
 	
            $14,000,000.00 
 	
            2.66666667%
 
	
            Royal Bank of Scotland

 
 	
            $14,000,000.00 
 	
            2.66666667%
 
	
            TOTALS

 
 	
            $525,000,000.00

 
 	
            100.00000000%