To Call Writer Direct:
312 861-2000
Exhibit 5.1
[Kirkland & Ellis Letterhead]
April 15, 1998
National Equipment Services, Inc.
1800 Sherman Avenue
Suite 100
Evanston, IL 60201
Re: 10% Senior Subordinated Notes due 2004, Series B
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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 $100,000,000 in aggregate principal amount
of the Company's 10% Senior Subordinated Notes due 2004, Series B (the "Exchange
Notes"), pursuant to a Registration Statement on Form S-4 (File No. 333-43553)
filed with the Securities and Exchange Commission (the "Commission") on December
31, 1997 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 (the "Old Notes"). We are also acting as special counsel to NES
Acquisition Corp. ("NES Acquisition"), BAT Acquisition Corp. ("BAT"), NES East
Acquisition Corp. ("NES East"), Albany Ladder Company, Inc. ("Albany"), and NES
Michigan Acquisition Corp. ("NES Michigan," and together with NES Acquisition,
BAT, Albany and NES East, 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 November 25, 1997, among the
Company, the Subsidiary Guarantors and Harris Trust and Savings Bank, as
Trustee, in exchange for and in replacement of the Company's outstanding Old
Notes, of which $100,000,000 in aggregate principal amount is outstanding.
National Equipment Services, Inc.
April 15, 1998
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 and (iv) the Registration Rights
Agreement, dated as of November 25, 1997, among the Company, the Subsidiary
Guarantors, Smith Barney Inc., First Union Capital Markets Corp. and Salomon
Brothers Inc.
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, NES Acquisition, BAT, 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 Business Corporation Law of the State of New York.
(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.
National Equipment Services, Inc.
April 15, 1998
Page 3
(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 Old 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 and
the General Corporation Law of the State of Delaware. 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. For purposes of the opinions in paragraph 1, we have relied exclusively
upon recent certificates issued by the Delaware Secretary of State and the New
York Secretary of State 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 of the rules and regulations of
the Commission.
National Equipment Services, Inc.
April 15, 1998
Page 4
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.
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 or the General Corporation Law of the State of
Delaware 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/ Kirkland & Ellis
KIRKLAND & ELLIS