ex10_3-bhcusbankcreditfacilityamend2


EXECUTION COPY




AMENDMENT NO. 2 TO 
AMENDED AND RESTATED CREDIT AGREEMENT


THIS AMENDMENT NO. 2 (this “Amendment”) is made as of August 6, 2015 (the “Effective Date”) by and among BLACK HILLS CORPORATION, a South Dakota corporation (the “Borrower”), the financial institutions listed on the signature pages hereto (the “Banks”) and U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the “Administrative Agent”), under that certain Amended and Restated Credit Agreement, dated as of May 29, 2014 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Credit Agreement”), by and among the Borrower, the Banks party thereto and the Administrative Agent.  Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”).


WHEREAS, the Borrower has requested that the Banks and the Administrative Agent agree to make certain modifications to the Credit Agreement; and
WHEREAS, the Borrower, the Banks and the Administrative Agent have so agreed on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Banks and the Administrative Agent hereby agree as follows.
ARTICLE I - AMENDMENT
Effective as of the Effective Date but subject to the satisfaction of the conditions precedent set forth in Article III below, the Credit Agreement is hereby amended as follows:
1.1     Section 1.1 of the Credit Agreement is hereby amended to add the following new definitions thereto in the appropriate alphabetical order:
“SourceGas Acquisition” means the transactions contemplated in that certain Purchase and Sale Agreement, dated as of July 12, 2015, as amended from time to time (the “Acquisition Agreement”), among Alinda Gas Delaware LLC, Alinda Infrastructure Fund I, L.P., Aircraft Services Corporation, and Black Hills Utility Holdings, Inc., a Subsidiary of the Borrower; provided that the SourceGas Acquisition shall have been consummated on or prior to July 12, 2016 or such later date prior to October 12, 2016 as shall be determined in accordance with Section 7.1(e)(ii) of the Acquisition Agreement as in effect on August 6, 2015.


“SourceGas Acquisition Debt Financing” means Indebtedness outstanding from time to time in an aggregate principal amount not to exceed $1,890,000,000 that is (i) assumed by the Borrower or any of its Subsidiaries in connection with the SourceGas Acquisition, (ii) incurred by the Borrower or any of its Subsidiaries to pay all or a portion of the cash consideration for the SourceGas Acquisition and to pay the fees and expenses













incurred in connection with the SourceGas Acquisition, the SourceGas Acquisition Debt Financing and the other transactions contemplated in connection therewith or (iii) incurred by the Borrower or any of its Subsidiaries to refinance, extend, modify or replace any Indebtedness described in clause (i) or (ii) above (provided that, after giving effect thereto, the aggregate principal amount of all SourceGas Acquisition Debt Financing does not exceed $1,890,000,000).


1.2    Section 7.15(f) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
(f)    if the Borrower consummates the SourceGas Acquisition, the following Indebtedness of SourceGas Holdings LLC, SourceGas LLC or any of their respective affiliates acquired in connection with the SourceGas Acquisition: (i) up to $95,000,000 principal amount of 3.98% Senior Secured Notes, Series A, due September 29, 2019 of SourceGas Holdings LLC, (ii) up to $325,000,000 principal amount of 5.90% Senior Notes due 2017 of SourceGas LLC, and (iii) up to $300,000,000 of secured or unsecured Indebtedness incurred after the date hereof and prior to the consummation of the SourceGas Acquisition; 


1.3    Section 7.17 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:
Section 7.17 Recourse Leverage Ratio. The Borrower will not permit the Recourse Leverage Ratio to exceed 0.65 to 1.00 at the end of any fiscal quarter; provided that, if the Borrower consummates the SourceGas Acquisition, solely for the first four fiscal quarters immediately following the SourceGas Acquisition (inclusive of the fiscal quarter in which the SourceGas Acquisition occurs), the maximum Recourse Leverage Ratio permitted under this Section 7.17 shall be increased to (i) 0.70 to 1.00 as at the end of any fiscal quarter during such four fiscal quarter period that the aggregate outstanding principal amount of the SourceGas Acquisition Debt Financing (after giving effect to any prepayments thereof) as of the end of such fiscal quarter is equal to or greater than $1,250,000,000 and less than $1,460,000,000 or (ii) 0.75 to 1.00 as at the end of any fiscal quarter during such four fiscal quarter period that the aggregate outstanding principal amount of the SourceGas Acquisition Debt Financing (after giving effect to any prepayments thereof) as of the end of such fiscal quarter is equal to or greater than $1,460,000,000. 


1.4    Line F6 of the form of Compliance Certificate attached as Exhibit B to the Credit Agreement is hereby amended as follows:

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	6.  Recourse Leverage Ratio
	____:1.00
	(ratio of (A) Line F3 to (B) Line F5 not to exceed 0.65 to 1.00 at the end of any fiscal quarter; provided that, if the Borrower consummates the SourceGas Acquisition, solely for the first four fiscal quarters immediately following the SourceGas Acquisition (inclusive of the fiscal quarter in which the SourceGas Acquisition occurs), the maximum Recourse Leverage Ratio permitted under this Section 7.17 shall be increased to (i) 0.70 to 1.00 as at the end of any fiscal quarter during such four fiscal quarter period that the aggregate outstanding principal amount of the SourceGas Acquisition Debt Financing (after giving effect to any prepayments thereof) as of the end of such fiscal quarter is equal to or greater than $1,250,000,000 and less than $1,460,000,000 or (ii) 0.75 to 1.00 as at the end of any fiscal quarter during such four fiscal quarter period that the aggregate outstanding principal amount of the SourceGas Acquisition Debt Financing (after giving effect to any prepayments thereof) as of the end of such fiscal quarter is equal to or greater than $1,460,000,000




1.5    Schedule 1.1 to the Credit Agreement is hereby deleted and replaced in its entirety with the Schedule 1.1 to the Credit Agreement attached as Exhibit A to this Amendment.
1.6    Schedule 5.2 to the Credit Agreement is hereby deleted and replaced in its entirety with the Schedule 5.2 to the Credit Agreement attached as Exhibit B to this Amendment.
1.7    Schedule 7.14 to the Credit Agreement is hereby deleted and replaced in its entirety with the Schedule 7.14 to the Credit Agreement attached as Exhibit C to this Amendment.


ARTICLE II - REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants as follows:
2.1    This Amendment and the Amended Credit Agreement constitute legal, valid and binding obligations of the Borrower and are enforceable against the Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally.
2.2    As of the date hereof and after giving effect to the terms of this Amendment, (i) the Borrower shall be in full compliance with all of the terms and conditions of the Amended Credit Agreement, and no Default or Event of Default shall have occurred and be continuing and (ii) each of the representations and warranties of the Borrower set forth in the Amended Credit Agreement are true and correct in all material respects (unless such representation or warranty is already qualified with respect to materiality, in which 

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case it shall be and remain true and correct in all respects) as of the date hereof, except that if any such representation or warranty relates solely to an earlier date it need only remain true in all material respects (unless such representation or warranty is already qualified with respect to materiality, in which case it shall be and remain true and correct in all respects) as of such date.
ARTICLE III- CONDITIONS PRECEDENT
This Amendment shall become effective on the Effective Date, provided, however, that the effectiveness of this Amendment is subject to the satisfaction of each of the following conditions precedent:


3.1    The Administrative Agent shall have received:
a.    Counterparts of this Amendment duly executed by the Borrower, the Administrative Agent and the Required Banks; 
b.    Such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the authorization of the Acquisition, and any other legal matters relating to the Acquisition, all in form and substance reasonably satisfactory to the Administrative Agent and its counsel; and
c.    Such other documents and information as the Administrative Agent may reasonably request.
3.2    All legal matters incident to the execution and delivery of this Amendment shall be satisfactory to the Required Banks.
3.3    There has been no material adverse change in the business, assets, operations, performance or condition, financial or otherwise, of the Borrower and its subsidiaries taken as a whole, since the last day of the most recently audited financial year of the Borrower.
ARTICLE IV- GENERAL
4.1    Expenses.  The Borrower agrees to reimburse the Administrative Agent upon demand for all reasonable out-of-pocket expenses paid or incurred by the Administrative Agent, including, without limitation, reasonable fees, charges and disbursements of outside counsel to the Administrative Agent incurred in connection with preparation, negotiation and execution of this Amendment and any other document required to be furnished herewith.
4.2    Counterparts.  This Amendment may be executed in any number of counterpart signature pages, and by the different parties on different counterparts, each of which when executed shall be deemed an original but all such counterparts taken together shall constitute one and the same instrument.  Delivery of an executed counterpart  hereof via facsimile or electronic means shall for all purposes be as effective as delivery of an original counterpart.

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4.3    Severability of Provisions.  Any provision in this Amendment that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Amendment are declared to be severable.
4.4    Governing Law.  This Amendment, and the rights and duties of the parties hereto, shall be construed and determined in accordance with the internal laws of the State of New York.
4.5    Successors; Enforceability.  The terms and provisions of this Amendment shall be binding upon the Borrower, the Administrative Agent and the Banks and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Administrative Agent and the Banks and the successors and assigns of the Administrative Agent and the Banks.  
4.6    Reference to and Effect on the Credit Agreement.
a.    Upon the effectiveness of this Amendment, on and after the date hereof, each reference in the Amended Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Credit Agreement, as amended and modified hereby.
b.    Except as specifically amended above, the Credit Agreement and all other documents, instruments and agreements executed and/or delivered in connection therewith (including, without limitation, all of the Loan Documents) shall remain in full force and effect and are hereby ratified and confirmed.
c.    The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or the Banks, nor constitute a waiver of any provision of the Amended Credit Agreement or any other documents, instruments and agreements executed and/or delivered in connection therewith.
d.     This Amendment shall constitute a Credit Document.


4.7    Headings.  Section headings used in this Amendment are for reference only and shall not affect the construction of this Amendment.
(signature pages follow)









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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized as of the date first written above. 
	
		
	 
      
	

BLACK HILLS CORPORATION, 
as the Borrower

	 
	By:      /s/ Kimberly F. Nooney
Name: Kimberly F. Nooney
Title:   Vice President - Treasurer















Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement










	
			
	 
	 
	U.S. BANK NATIONAL ASSOCIATION,

	 
	as a Bank and as Administrative Agent

	 
	 
	By: /s/ John M. Eyerman
Name: John M. Eyerman
Title:    Vice President

























Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement






	
			
	 
	 
	THE BANK OF NOVA SCOTIA, 
as a Bank

	 
	 
	By:       /s/ Thane Rattew
Name:  Thane Rattew
Title:    Managing Director























Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement








	
	
	MUFG UNION BANK, N.A., 
as a Bank

	By:       /s/ Maria Ferradas
Name:  Maria Ferradas
Title:    Vice President



















Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement








            	
		
	 
	WELLS FARGO BANK, NATIONAL 
ASSOCIATION, as a Bank

	 
	 

	 
	By:       /s/ Nick Brokke
Name:  Nick Brokke
Title:    Vice President































Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement










	
		
	 
	ROYAL BANK OF CANADA, 
as a Bank

	 
	 

	 
	By:        /s/ Frank Lambrinos
Name:   Frank Lambrinos
Title:     Authorized Signatory





















Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement








            	
		
	 
	COBANK, ACB, 
as a Bank



	 
	 

	 
	By:       /s/ John H. Kemper
Name:  John H. Kemper
Title:    Vice President

































Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement








            	
		
	 
	JPMORGAN CHASE BANK, N.A.,
as a Bank

	 
	 

	 
	By:       /s/ Justin Martin
Name:  Justin Martin
Title:    Authorized Officer





























Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement








            	
		
	 
	BMO HARRIS FINANCING, INC.,
as a Bank

	 
	 

	 
	By:       /s/ Kevin Utsey
Name:  Kevin Utsey
Title:    Director







































Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement






            	
		
	 
	CREDIT SUISSE AG, CAYMAN
ISLANDS BRANCH,
as a Bank



	 
	 

	 
	By:      /s/ Mikhail Faybusovich
Name: Mikhail Faybusovich
Title:   Authorized Signatory

	 
	 

	 
	By:       /s/ Michaela Kenny
Name:  Michaela Kenny
Title:    Authorized Signatory









Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement








            	
		
	 
	BANK OF AMERICA, N.A.,
as a Bank

	 
	 

	 
	By:       /s/ Carlos Morales
Name:  Carlos Morales
Title:    Senior Vice President































Signature Page to
Amendment No. 2 to
Black Hills Amended and Restated Credit Agreement






Exhibit A
Schedule 1.1 to the Credit Agreement


SCHEDULE 1.1


EXISTING LETTERS OF CREDIT
As of 8/6/15


	
									
	L/C #
	Issuing Bank
	Subsidiary Name
	Beneficiary
	Amount
	

	Start
	End

	SLCMMSP04992
	USBank
	BH Corp
	Liberty Mutual Insurance Co.
	

	$2,673,457.00
	

	1/24/08
	4/27/16

	SLCMMSP02979
	USBank
	BHGR
	Costa Rica
	

	$275,000.00
	

	3/2/12
	3/2/16

	SLCMMSP05969
	USBank
	BHUH (COE)
	Thatcher Trust
	

	$100,000.00
	

	4/22/10
	10/31/15

	SLCMMSP05996
	USBank
	BHUH (COE)
	610 RLLLP
	

	$100,000.00
	

	5/11/10
	12/31/15

	SLCMMSP05587
	USBank
	CLFP
	Silver Sage Windpower, LLC
	

	$3,000,000.00
	

	4/13/09
	9/30/15

	SLCMMSP06892
	USBank
	BHC
	City of Rapid City
	

	$353,686.64
	

	5/9/13
	12/1/16

	SCLMMSP06935
	USBank
	BHUH
	XTO Energy Inc.
	

	$3,200,000.00
	

	6/27/13
	11/15/15

	SLCMMSP07252
	USBank
	BHUH
	Northern Natural Gas Company
	

	$10,530,712.00
	

	4/23/14
	4/23/16

	93502/80085
	Scotia Bank
	BHUH
	Colorado Interstate Gas Company, L.L.C.
	

	$3,300,000.00
	

	7/31/13
	7/30/16

	 
	 
	 
	 
	 
	 
	 

	 
	 
	 
	Total Current L/C's
	

	$23,532,855.64
	

	 
	 



















Exhibit B
Schedule 5.2 to the Credit Agreement


SCHEDULE 5.2
BLACK HILLS CORPORATION SUBSIDIARIES
As of 08/06/15	
						
	 
	







Subsidiary Name
	





State of
Origin
	





BHC’s 
Ownership
	Description of Subsidiary’s Authorized Capital Stock, if not wholly owned
	





Material Subsidiary

	1.
	Black Hills Cabresto Pipeline, LLC
	Delaware
	100%
	N/A
	No

	2.
	Black Hills/Colorado Electric Utility Company, LP
	Delaware
	100%
	N/A
	Yes

	3.
	Black Hills/Colorado Gas Utility Company, LP
	Delaware
	100%
	N/A
	Yes

	4.
	Black Hills/Colorado Utility Company, LLC
	Colorado
	100%
	N/A
	Yes

	5.
	Black Hills/Colorado Utility Company II, LLC
	Colorado
	100%
	N/A
	Yes

	6.
	Black Hills Colorado IPP, LLC
	South Dakota
	100%
	N/A
	Yes

	7.
	Black Hills Electric Generation, LLC
	South Dakota
	100%
	N/A
	Yes

	8.
	Black Hills Exploration and Production, Inc.
	Wyoming
	100%
	N/A
	Yes

	9.
	Black Hills Gas Resources, Inc.
	Colorado
	100%
	N/A
	No

	10.
	Black Hills Gas Holdings Corp.
	Colorado
	100%
	N/A
	No

	11.
	Black Hills/Iowa Gas Utility Company, LLC
	Delaware
	100%
	N/A
	Yes

	12.
	Black Hills/Kansas Gas Utility Company, LLC
	Kansas
	100%
	N/A
	Yes

	13.
	Black Hills Midstream, LLC
	South Dakota
	100%
	N/A
	No

	14.
	Black Hills/Nebraska Gas Utility Company, LLC
	Delaware
	100%
	N/A
	Yes

	15.
	Black Hills Non-regulated Holdings, LLC
	South Dakota
	100%
	N/A
	Yes

	16.
	Black Hills Northwest Wyoming Gas Utility Company, LLC
	Wyoming
	100%
	N/A
	No

	17.
	Black Hills Plateau Production, LLC
	Delaware
	100%
	N/A
	No

	18.
	Black Hills Power, Inc.
	South Dakota
	100%
	N/A
	Yes

	19.
	Black Hills Service Company, LLC
	South Dakota
	100%
	N/A
	No

	20.
	Black Hills Shoshone Pipeline, LLC
	Wyoming
	100%
	N/A
	No

	21.
	Black Hills Utility Holdings, Inc.
	South Dakota
	100%
	N/A
	Yes

	22.
	Black Hills Wyoming, LLC
	Wyoming
	100%
	N/A
	No

	23.
	Cheyenne Light, Fuel and Power Company
	Wyoming
	100%
	N/A
	Yes

	24.
	Generation Development Company, LLC
	South Dakota
	100%
	N/A
	No

	25.
	Mallon Oil Company, Sucursal Costa Rica
	Costa Rica
	100%
	N/A
	No

	26.
	Wyodak Resources Development Corp.
	Delaware
	100%
	N/A
	No













Exhibit C
Schedule 7.14 to the Credit Agreement


SCHEDULE 7.14
 
EXISTING INVESTMENTS
As of 6/30/15
		
	1.
	The Borrower holds investments in life insurance policies and nonqualified deferred compensation plan accounts in the amount of $6,041,869.




		
	2.
	BHP holds investments in life insurance policies and nonqualified deferred compensation plan accounts in the amount of $4,680,943.




		
	3.
	Wyodak Resources Developmental Corp. holds investments in life insurance policies in the amount of $648,812.




		
	4.
	Black Hills Exploration and Production, Inc. holds investments in affiliates in the amount of $315,901.