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Exhibit 5
[Morrill Thomas Nooney & Braun, LLP Letterhead Appears Here]
December 26, 2000
Black Hills Corporation
625 Ninth Street
Rapid City, South Dakota 57701
Re: Black Hills Corporation
Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for Black Hills Corporation, a South Dakota
corporation (the "Company"), in connection with the filing of a registration
statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), for the registration of the sale from time to time of up
to $400,000,000 aggregate offering price of (i) debt securities of the
Company, which may be either senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities" and together with the Senior Debt Securities, the "Debt
Securities"), (ii) shares of the Company's preferred stock, without par value
(the "Preferred Stock"), (iii) shares of the Company's common stock, par
value $1.00 per share (the "Common Stock"), and (iv) warrants representing
rights to purchase Debt Securities, Preferred Stock or Common Stock of the
Company ("Warrants" and together with the Debt Securities, Preferred Stock
and Common Stock, the "Securities"). The Securities will be sold or delivered
from time to time as set forth in the Registration Statement, any amendment
thereto, the prospectus contained therein (the "Prospectus") and supplements
to the Prospectus (the "Prospectus Supplements").
We have examined (i) the Articles of Incorporation and Bylaws of the
Company, (ii) the Registration Statement, (iii) the form of Indenture
relating to the Senior Debt Securities (the "Senior Indenture") to be
executed by the Company and an indenture trustee to be selected by the
Company and filed as an exhibit to the Registration Statement, and (iv) the
form of Indenture relating to the Subordinated Debt Securities (the
"Subordinated Indenture") to be executed by the Company and an indenture
trustee to be selected by the Company and filed as an exhibit to the
Registration Statement. In addition, we have (a) examined such certificates
of public officials and of corporate officers and directors and such other
documents and matters as we have deemed necessary or appropriate, (b) relied
upon the accuracy of facts and information set forth in all such documents,
and (c) assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as copies, and the authenticity of the
originals from which all such copies were made.
Based on the foregoing and subject to the qualifications and
limitations stated herein, we are of the opinion that:
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Black Hills Corporation
December 26, 2000
Page 2
1. The Senior Debt Securities proposed to be sold by the Company,
when (i) duly authorized by all necessary corporate action, (ii) the Senior
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, (iii) the Senior Indenture and any supplemental indenture in respect
of the Senior Debt Securities have been duly executed and delivered, (iv) the
terms of the Senior Debt Securities have been duly established in accordance
with the Senior Indenture and any applicable supplemental indenture relating
to the Senior Debt Securities, and (v) the Senior Debt Securities have been
duly executed and authenticated in accordance with the Senior Indenture and
any related supplemental indenture in respect of the Senior Debt Securities
and duly issued and delivered by the Company upon payment of the
consideration therefor in the manner contemplated in the Registration
Statement and any Prospectus Supplement relating thereto, will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms.
2. The Subordinated Debt Securities proposed to be sold by the
Company, when (i) duly authorized by all necessary corporate action, (ii) the
Subordinated Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended, (iii) the Subordinated Indenture and any supplemental
indenture in respect of the Subordinated Debt Securities have been duly
executed and delivered, (iv) the terms of the Subordinated Debt Securities
have been duly established in accordance with the Subordinated Indenture and
any applicable supplemental indenture relating to the Subordinated Debt
Securities, and (v) the Subordinated Debt Securities have been duly executed
and authenticated in accordance with the Subordinated Indenture and any
related supplemental indenture in respect of the Subordinated Debt Securities
and duly issued and delivered by the Company upon payment of the
consideration therefor in the manner contemplated in the Registration
Statement and any Prospectus Supplement relating thereto, will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms.
3. The shares of Preferred Stock proposed to be sold by the Company,
when (i) all necessary corporate action on the part of the Company has been
taken to authorize the issuance and sale of such series of Preferred Stock,
including the adoption of a Statement of Designation relating to the
Preferred Stock (a "Statement") and the filing of the Statement with the
Secretary of State of the State of South Dakota, and (ii) such shares of
Preferred Stock are issued and delivered upon payment of the consideration
therefor in the manner contemplated in the Registration Statement and any
Prospectus Supplement relating thereto or upon the conversion, exchange or
exercise of any other Security in accordance with the terms of such Security
or the instrument governing such Security providing for such conversion,
exchange or exercise, will be validly issued, fully paid and non-assessable.
4. The shares of Common Stock proposed to be sold by the Company,
when (i) all necessary corporate action on the part of the Company has been
taken to authorize the issuance and sale of such shares of Common Stock, and
(ii) such shares of Common Stock are issued and delivered upon payment of the
consideration therefor (not less than the par value of the Common Stock) in
the manner contemplated in the Registration Statement and any Prospectus
Supplement relating thereto or upon the conversion, exchange or exercise of
any other Security in accordance
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Black Hills Corporation
December 26, 2000
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with the terms of such Security or the instrument governing such Security
providing for such conversion, exchange or exercise, will be validly issued,
fully paid and non-assessable.
5. The Warrants proposed to be sold by the Company, when (i) all
necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of the Warrants, (ii) the applicable warrant
agreement related to the Warrants has been duly authorized and validly executed
and delivered by the Company and the warrant agent appointed by the Company,
(iii) the Warrants or certificates representing the Warrants have been duly
executed and authenticated in accordance with the applicable warrant agreement,
and (iv) the Warrants are issued and delivered by the Company upon payment of
the consideration therefor in the manner contemplated in the Registration
Statement and any Prospectus Supplement relating thereto, will constitute valid
and binding obligations of the Company, enforceable in accordance with their
terms.
Our opinions set forth in paragraphs 1, 2 and 5 above are subject to
the effects of bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance, moratorium or other similar laws now or hereinafter in effect
relating to or affecting the enforcement of creditors' rights generally and
by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
We are members of the bar of the State of South Dakota. Our opinion
expressed above is limited to the laws of the State of South Dakota and the
federal laws of the United States of America, and we do not express any
opinion herein concerning the laws of any other jurisdiction. To the extent
that the opinion expressed herein relates to matters governed by the laws of
the State of New York, we have assumed that the applicable law of the State
of New York is the same as the applicable law of the State of South Dakota in
all relevant respects.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
constituting a part of the Registration Statement under the caption "Legal
Opinions." In giving this consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Yours very truly,
/s/ MORRILL THOMAS NOONEY & BRAUN, LLP
MORRILL THOMAS NOONEY & BRAUN, LLP
