XXXXXXXX & XXXXX
Partnerships Including Professional Corporations
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
000 000-0000
Exhibit 5.1
To Call Writer Direct: Facsimile:
000 000-0000 000 000-0000
February 1, 1999
National Equipment Services, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Re: 10% Senior Subordinated Notes due 2004, Series D
------------------------------------------------
Ladies and Gentlemen:
We are acting as special counsel to National Equipment Services, Inc.,
a Delaware corporation (the "Company"), in connection with the proposed
registration by the Company of up to $175,000,000 in aggregate principal amount
of the Company's 10% Senior Subordinated Notes due 2004, Series D (the "Exchange
Notes"), pursuant to a Registration Statement on Form S-4 to be filed with the
Securities and Exchange Commission (the "Commission") on or about the date
hereof under the Securities Act of 1933, as amended (the "Securities Act") (such
Registration Statement, as amended or supplemented, is hereinafter referred to
as the "Registration Statement"), for the purpose of effecting an exchange offer
(the "Exchange Offer") for the Company's 10% Senior Subordinated Notes due 2004,
Series C (the "Outstanding Notes"). We are also acting as special counsel to
Albany Ladder Company, Inc. ("Albany"), BAT Acquisition Corp. ("BAT"), Xxxx's
Mid South Rent-All Center Incorporated ("CMSRACI"), Falconite Aviation, Inc.
("FAI"), Falconite Equipment, Inc. ("FEI"), Falconite, Inc. ("Falconite"),
Falconite Rebuild Center, Inc. ("FRCI"), XxXxxxx & Falconite Equipment Co., Inc.
("M&FECI"), M&M Properties, Inc. ("M&MPI"), NES Acquisition Corp. ("NES
Acquisition"), NES East Acquisition Corp. ("NES East"), NES Michigan Acquisition
Corp. ("NES Michigan"), Rebel Studio Rentals, Inc. ("RSR") and Xxxxxxxxxxx Xxxxx
Service, Inc. ("SCS" and, together with Albany, BAT, CMSRACI, FAI, FEI,
Xxxxxxxxx, FRCI, M&FECI, M&MPI, NES Acquisition, NES East, NES Michigan and RSR,
the "Subsidiary Guarantors") as issuers of guarantees (collectively, the
"Guarantees") of the obligations of the Company under the Exchange Notes. The
Exchange Notes and the Guarantees are to be issued pursuant to the Indenture
(the "Indenture"), dated as of December 11, 1998, among the Company, the
Subsidiary Guarantors and Xxxxxx Trust and Savings Bank, as Trustee, in exchange
for and in replacement of the Company's current Outstanding Notes, of which
$175,000,000 in aggregate principal amount is outstanding.
National Equipment Services, Inc.
February 1, 1999
Page 2
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purposes of this
opinion, including (i) the corporate and organizational documents of the Company
and each Subsidiary Guarantor, (ii) minutes and records of the corporate
proceedings of the Company and each Subsidiary Guarantor with respect to the
issuance of the Exchange Notes and the Guarantees, respectively, (iii) the
Registration Statement and exhibits thereto, (iv) the Registration Rights
Agreement, dated as of December 11, 1998, among the Company, the Subsidiary
Guarantors, Xxxxxxx Xxxxx Xxxxxx Inc. and First Union Capital Markets Corp. and
(v) the Registration Rights Agreement, dated as of January 8, 1999, among the
Company, the Subsidiary Guarantors, Xxxxxxx Xxxxx Xxxxxx Inc. and First Union
Capital Markets Corp.
For purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals of all
documents submitted to us as copies. We have also assumed the genuineness of
the signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company and the Subsidiary Guarantors, and the
due authorization, execution and delivery of all documents by the parties
thereto other than the Company and the Subsidiary Guarantors. As to any facts
material to the opinions expressed herein which we have not independently
established or verified, we have relied upon statements and representations of
officers and other representatives of the Company and others.
Based upon and subject to the foregoing qualifications, assumptions
and limitations and the further limitations set forth below, we are of the
opinion that:
(1) Each of the Company, BAT, FAI, NES Acquisition, NES East and NES
Michigan is a corporation existing and in good standing under the General
Corporation Law of the State of Delaware. Albany is a corporation existing and
in good standing under the New York Business Corporation Law. CMSRACI is a
corporation existing and in good standing under the Tennessee Business
Corporation Act. Each of Falconite and FEI is a corporation existing and in
good standing under the Illinois Business Corporation Act of 1983. FRCI is a
corporation existing and in good standing under the Kentucky 1988 Business
Corporation Act. Each of M&FECI and M&MPI is a corporation existing and in good
standing under the Alabama Business Corporation Act. RSR is a
National Equipment Services, Inc.
February 1, 1999
Page 3
corporation existing and in good standing under the California General
Corporation Law. SCS is a corporation existing and in good standing under the
Massachusetts Business Corporation Law.
(2) The sale and issuance of the Exchange Notes has been validly
authorized by the Company.
(3) The Guarantees have been validly authorized by each of the
Subsidiary Guarantors.
(4) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the Indenture
shall have been qualified pursuant to the provisions of the Trust Indenture Act
of 1939, as amended, (iii) the Outstanding Notes shall have been validly
tendered to the Company, (iv) the Exchange Notes shall have been issued in the
form and containing the terms described in the Registration Statement, the
Indenture, the resolutions of the Company's and each Subsidiary Guarantor's
Board of Directors (or authorized committee thereof) authorizing the foregoing
and any legally required consents, approvals, authorizations and other order of
the Commission and any other regulatory authorities to be obtained and (v) the
Exchange Notes have been authenticated by the Trustee, the Exchange Notes when
issued pursuant to the Exchange Offer will be legally issued, fully paid and
nonassessable and will constitute valid and binding obligations of the Company
and each Guarantee will constitute the valid and binding obligation of the
respective Subsidiary Guarantor.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of (i)
any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar law affecting the enforcement of
creditors' rights generally, (ii) general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), (iii)
public policy considerations which may limit the rights of parties to obtain
certain remedies and (iv) any laws except the laws of the State of New York, the
laws of the State of Illinois, the General Corporation Law of the State of
Delaware (in the case of the Company, BAT, FAI, NES Acquisition, NES East and
NES Michigan), the Alabama Business Corporation Act (in the case of M&FECI and
M&MPI), the California General Corporation Law (in the case of RSR), the
Kentucky 1988 Business Corporation Act (in the case of FRCI), the Massachusetts
Business Corporation Law (in the case of SCS) and the Tennessee Business
Corporation Act (in the case of CMSRACI). We advise you that issues addressed
by this letter may be governed in whole or in part by other laws, but we express
no opinion as to whether any relevant difference exists between the laws upon
which our opinions are based and any other laws which may actually govern. With
respect to any opinion or other advice
National Equipment Services, Inc.
February 1, 1999
Page 4
based on the Alabama Business Corporation Act, the California General
Corporation Law, the Kentucky 1988 Business Corporation Act, the Massachusetts
Business Corporation Law and the Tennessee Business Corporation Act, we note
that we do not practice in Alabama, California, Kentucky, Massachusetts or
Tennessee, and our opinions and advice based on the Alabama Business Corporation
Act, the California General Corporation Law, the Kentucky 1988 Business
Corporation Act, the Massachusetts Business Corporation Law and the Tennessee
Business Corporation Act are limited to the statutory provisions set forth in
Xxxxxx'x Alabama Code (1975), West's Annotated California Codes (1990), Kentucky
Revised Statutes (1989 Replacement), Massachusetts General Laws Annotated (1992)
and Tennessee Code Annotated (1995 Replacement), respectively, without regard to
regulations promulgated thereunder or any judicial interpretations thereof.
For purposes of the opinions in numbered paragraph 1, we have relied
exclusively upon (a) in the case of the Company, BAT, FAI, NES Acquisition, NES
East and NES Michigan, recent certificates issued by the Delaware Secretary of
State, (b) in the case of Albany, a recent certificate issued by the New York
Secretary of State, (c) in the case of CMSRACI, a recent certificate issued by
the Tennessee Secretary of State, (d) in the case of Falconite and FEI, recent
certificates issued by the Illinois Secretary of State, (e) in the case of FRCI,
a recent certificate issued by the Kentucky Secretary of State, (f) in the case
of M&FECI and M&MPI, recent certificates issued by the Alabama Secretary of
State, (g) in the case of RSR, a recent certificate issued by the California
Secretary of State and (h) in the case of SCS, a recent certificate issued by
the Secretary of the Commonwealth of Massachusetts, and such opinions are not
intended to provide any conclusion or assurance beyond that conveyed by such
certificates. We have assumed without investigation that there has been no
relevant change or development between the respective dates of such certificates
and the date of this letter.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Matters" in the Registration Statement. 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 Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance of the Exchange Notes.
National Equipment Services, Inc.
February 1, 1999
Page 5
This opinion is limited to the specific issues addressed herein, and
no opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York, the laws of the State of Illinois, the Alabama
General Corporation Act, the California General Corporation Law, the General
Corporation Law of the State of Delaware, the Kentucky 1988 Business Corporation
Act, the Massachusetts Business Corporation Law and the Tennessee Business
Corporation Act be changed by legislative action, judicial decision or
otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement, and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Yours very truly,
/s/ Xxxxxxxx & Xxxxx
XXXXXXXX & XXXXX
