Exhibit 5
Ice Miller Donadio & Ryan
One American Square, Box 82001
Indianapolis, Indiana, 46282
June 14, 1999
National Wine & Spirits, Inc.
700 W. Morris Street
Indianapolis, Indiana 46225
Ladies and Gentlemen:
We have acted as counsel to National Wine & Spirits, Inc., an Indiana
corporation (the "Company"), and the Company's subsidiaries, National Wine &
Spirits Corporation, an Indiana corporation, NWS Michigan, Inc., a Michigan
corporation, NWS, Inc., an Illinois corporation and NWS-Illinois, LLC, an
Illinois limited liability company (collectively, the "Guarantors"), in
connection with the public offering by the Company of $110,000,000 aggregate
principal amount at maturity of the Company's 10.125% Senior Notes due 2009 (the
"Exchange Notes"), which are to be jointly and severally fully and
unconditionally guaranteed on a senior unsecured basis pursuant to guarantees
(the "Guarantees") by each of the Guarantors. The Notes are to be issued
pursuant to an exchange offer (the "Exchange Offer") in exchange for a like
principal amount at maturity of the issued and outstanding 10.125% Senior Notes
due 2009 of the Company (the "Old Notes") under the Indenture, dated as of
January 25, 1999 (the "Indenture"), by and among the Company, the Guarantors
named therein, and Norwest Bank, N.A., as Trustee (the "Trustee"), as
contemplated by that certain Registration Rights Agreement (the "Registration
Rights Agreement"), dated as of January 25, 1999, by and among the Company, the
Guarantors, Donaldson, Lufkin & Jenrette Securities Corporation, Bear, Stearns &
Co. Inc. and First Chicago Capital Markets, Inc.
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act of 1933, as amended
(the "Act").
In connection with rendering this opinion, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement on Form S-4 (Registration NO. 333-74589) originally filed
with the Securities and Exchange Commission (the "Commission") on March 17,
1999, under the Act (such Registration Statement, as amended or supplemented,
being hereinafter referred to as the "Registration Statement"); (ii) an executed
copy of the Registration Rights Agreement; (iii) an executed copy of the
Indenture; (iv) specimens of the certificates representing the Exchange Notes
and the Guarantees included as exhibits to the Indenture; (v) the Articles of
Incorporation of the Company, as in effect on the date hereof; (vi) the Articles
of Incorporation of National Wine & Spirits Corporation, as in effect on the
date hereof; (vii) the Articles of Incorporation of NWS Michigan Inc., as in
effect on the date hereof; (viii) the Articles of Incorporation of NWS, Inc. as
in effect on the date hereof; (ix) the Articles of Organization of NWS-Illinois,
LLC, as in effect on the date hereof; (x) the By-Laws or the Operating
Agreement, as the case may be, of the Company and each of the Guarantors, as in
effect on the date hereof; (xi) certain resolutions adopted by the Board of
Directors or the Board of Managers, as the case may be, of the Company and each
of the Guarantors relating to the Exchange Offer, the issuance of the Old Notes
and the Exchange Notes, the Indenture, the Guarantees, and related matters; and
(xii) the Form T-1 of the Trustee filed as an exhibit to the Registration
Statement. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of the Company and the
Guarantors and such agreements, certificates of public officials, certificates
of officers or other representatives of the Company and others, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, 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 certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company or the Guarantors, we have assumed that such parties had or will have
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and the validity and binding effect thereof. 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, the Guarantors and others.
Based upon and subject to the foregoing and the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that when (i) the Registration Statement becomes effective and the
Indenture is qualified under the Trust Indenture Act of 1939, as amended; (ii)
the Exchange Notes have been duly executed and authenticated in accordance with
the terms of the Indenture and have been delivered upon consummation of the
Exchange Offer against receipt of Old Notes surrendered in exchange therefor in
accordance with the terms of the Exchange Offer; and (iii) the Guarantees by
each of the Guarantors have been duly executed by the respective Guarantors and
have been delivered upon consummation of the Exchange Offer in accordance with
the terms of the Exchange Offer, the Exchange Notes and the Guarantees will
constitute valid and binding obligations of the Company and the Guarantors,
respectively, except to the extent that enforcement thereof may be limited by
(1) bankruptcy, insolvency and reorganization laws now or hereafter in effect
relating to creditors' rights generally and (2) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in
equity).
Our opinions herein are limited in all respects to the law of the State
of Indiana, Illinois, Michigan and New York and the federal laws of the United
States of America, and we do not express any opinion as to, the applicability of
or the effect thereon of the laws of any other jurisdiction.
We hereby consent to the filings of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Matters" in the Registration Statement. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Ice Miller Donadio & Ryan