EXHIBIT 5.1
Greenberg Traurig, P.A.
June 15, 2004
RailAmerica, Inc.
RailAmerica Transportation Corp.
The entities set forth on Schedule I attached hereto
5300 Broken Sound Boulevard, N.W.
Boca Raton, Florida 33487
Re: RailAmerica, Inc. Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as legal counsel for RailAmerica, Inc., a Delaware
corporation ("RailAmerica"), and RailAmerica Transportation Corp., a Delaware
corporation ("RailAmerica Transportation" and, together with RailAmerica, the
"Companies"), and the direct and indirect subsidiaries of the Companies set
forth on Schedule I attached hereto (the "Guarantors"), in connection with the
preparation of a Registration Statement on Form S-3, including the prospectus
constituting a part thereof (the "Registration Statement") being filed by the
Companies with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"), relating to (i) shares of
common stock of RailAmerica, par value $0.001 per share (the "Common Stock");
(ii) one or more classes or series of shares of preferred stock of RailAmerica,
par value $0.001 per share (the "Preferred Stock"); (iii) one or more series of
debt securities of either of the Companies (collectively, the "Debt
Securities"); (iv) guarantees of the Debt Securities by some or all of the
Guarantors (the "Guarantees"); (v) warrants to purchase Common Stock, Preferred
Stock, Debt Securities or any combination of those securities (the "Warrants");
(vi) stock purchase contracts obligating the holders to purchase from
RailAmerica a specified number of shares of Common Stock ("Stock Purchase
Contracts"), which may be issued separately or as part of stock purchase units,
each consisting of a Stock Purchase Contract, and of a beneficial interest in
Debt Securities, Preferred Stock or debt obligations of third parties securing
the holder's obligations to purchase Common Stock under the Stock Purchase
Contracts ("Stock Purchase Units"); and (vii) the Common Stock, Preferred Stock
or Debt Securities that may be issued upon the exercise of the Warrants or in
connection with Stock Purchase Contracts or Stock Purchase Units, whichever is
applicable. The Common Stock, the Preferred Stock, the Debt Securities
(including the Guarantees), the Warrants, the Stock Purchase Contracts and the
Stock Purchase Units are hereinafter referred to collectively as the
"Securities." The Securities may be issued and 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") and pursuant to Rule 415 under the
Act for an aggregate initial offering price not to exceed $400,000,000.
The Debt Securities will be issued pursuant to one or more Indentures
(each, an "Indenture"), each to be between either of the Companies, the
Guarantors, if any, and a financial institution identified therein as the
trustee (the "Trustee").
The Warrants will be issued under one or more Warrant Agreements (each,
a "Warrant Agreement"), each to be between either of the Companies and a
counterparty or counterparties identified therein or a financial institution
identified therein as the Warrant Agent (each, a "Counterparty").
In connection with our representation of the Companies and the
Guarantors, and as a basis for the opinion hereinafter set forth, we have
examined originals, or copies certified or otherwise identified to our
satisfaction, of the following:
(1) the Registration Statement;
(2) the Amended and Restated Certificate of Incorporation of each of the
Companies, as amended to the date hereof, and organizational documents
of each of the Guarantors, as amended to the date hereof (collectively,
the "Organizational Documents");
RailAmerica, Inc.
June 15, 2004
Page 2
(3) the Bylaws of each of the Companies, as amended to the date hereof, and
the Bylaws of each of the Guarantors as amended to the date hereof
(collectively, the "Bylaws");
(4) resolutions adopted by the Board of Directors of each of the Companies
and the Guarantors, relating to the approval of the filing of the
Registration Statement, together with the exhibits thereto, and other
related matters (the "Resolutions"); and
(5) such other documents and records and other certificates and instruments
and matters of law as we have deemed necessary or appropriate to
express the opinions set forth below, subject to the assumptions,
limitations and qualifications stated herein.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as duplicates or certified
or conformed copies and the authenticity of originals or such latter documents.
We have also assumed that (i) at the time of execution, authentication, issuance
and delivery of the Debt Securities, the related Indenture will be the valid and
legally binding obligation of the Trustee and (ii) at the time of execution,
countersignature, issuance and delivery of any Warrants, the related Warrant
Agreement will be the valid and legally binding obligation of each Counterparty
thereto.
As to various questions of fact material to this opinion, we have
relied, to the extent we deemed reasonably appropriate, upon representations or
certificates of officers or directors of the Companies, without independently
verifying the accuracy of such documents, records and instruments.
In connection with the issuance of the Debt Securities and the
Guarantees, we have assumed further that (i) at the time of execution,
authentication, issuance and delivery of the Indenture, the Debt Securities and
the Guarantees will have been duly authorized, executed and delivered by the
Companies and the Guarantors, as the case may be, and (ii) the execution,
delivery and performance by the Companies and the Guarantors of the Indenture,
the Debt Securities and the Guarantees, as the case may be, will not violate the
laws of any jurisdiction (provided that as to the laws of the State of Florida,
the Delaware General Corporation Law and the federal laws of the United States
we make no such assumption).
In connection with the issuance of Warrants, we have assumed further
that (i) at the time of execution, countersignature, issuance and delivery of
any Warrants, the related Warrant Agreement will have been duly authorized,
executed and delivered by the applicable Company and (ii) the execution,
delivery and performance by the applicable Company of such Warrant Agreement and
such Warrants will not violate the laws of any jurisdiction (provided that as to
the laws of the State of Florida, the Delaware General Corporation Law and the
federal laws of the United States we make no such assumption).
Based solely upon and subject to the foregoing, and subject to the
assumptions, limitations and qualifications stated herein, we are of the opinion
that:
(1) With respect to the Common Stock, assuming (i) the
Registration Statement (including any amendments thereto)
shall become effective under the Act; (ii) the taking by the
Board of Directors of RailAmerica of all necessary corporate
action to authorize and approve the issuance of the Common
Stock and the terms of the offering thereof and (iii) the due
issuance and delivery of the Common Stock, upon payment
therefor in accordance with the applicable definitive
underwriting agreement, if applicable, or Prospectus
Supplement approved by the Board of Directors of RailAmerica,
the Common Stock will be validly issued, fully paid and
nonassessable.
(2) With respect to the Preferred Stock, assuming (i) the
Registration Statement (including any amendments thereto)
shall become effective under the Act; (ii) the taking by the
Board of Directors of RailAmerica of all necessary corporate
action to authorize and approve the issuance and terms of the
Preferred Stock and the terms of the offering thereof, (iii)
the due filing of a Certificate of Amendment with the Delaware
Secretary of State setting forth the terms of such Preferred
Stock and (iv) due issuance and delivery of the Preferred
Stock, upon payment therefor in accordance with the applicable
definitive underwriting agreement, if applicable, or
RailAmerica, Inc.
June 15, 2004
Page 3
Prospectus Supplement approved by the Board of Directors of
RailAmerica, the Preferred Stock will be validly issued, fully
paid and nonassessable.
(3) With respect to the Debt Securities, assuming (i) the
Registration Statement (including any amendments thereto)
shall become effective under the Act; (ii) the taking of all
necessary corporate action to approve the issuance and terms
of the Debt Securities, the terms of the offering thereof and
related matters by the Board of Directors of the applicable
Company and (iii) the due execution, authentication, issuance
and delivery of such Debt Securities, upon payment of the
consideration therefor provided for in the applicable
definitive purchase, underwriting or similar agreement, as
applicable, or Prospectus Supplement approved by the Board of
Directors of the applicable Company and otherwise in
accordance with the provisions of the applicable Indenture and
such agreement, such Debt Securities will constitute valid and
legally binding obligations of the applicable Company
enforceable against the applicable Company in accordance with
their terms.
(4) With respect to the Guarantees, assuming (i) the Registration
Statement (including any amendments thereto) shall become
effective under the Act; (ii) the taking of all necessary
corporate action by the Board of Directors of each of the
Guarantors to approve the execution and delivery of the
Guarantees and (iii) the due execution, authentication,
issuance and delivery of such Guarantees, upon payment of the
consideration therefor provided for in the applicable
definitive purchase, underwriting or similar agreement, as
applicable, or Prospectus Supplement approved by the Board of
Directors of the Guarantors and otherwise in accordance with
the provisions of the applicable Indenture and other
documents, if any, evidencing the Guarantees and such
agreement, such Guarantees will constitute valid and legally
binding obligations of each of the Guarantors enforceable
against each of the Guarantors in accordance with their terms.
(5) With respect to the Warrants, assuming (i) the Registration
Statement (including any amendments thereto) shall become
effective under the Act; (ii) the taking of all necessary
corporate action by the Board of Directors of the applicable
Company to approve the execution and delivery of a Warrant
Agreement and (iii) the due execution, countersignature,
issuance and delivery of such Warrants, upon payment of the
consideration therefor provided for in the applicable
definitive purchase, underwriting or similar agreement, as
applicable, or Prospectus Supplement approved by the Board of
Directors of RailAmerica and otherwise in accordance with the
provisions of the applicable Warrant Agreement and such
agreement, such Warrants will constitute valid and legally
binding obligations of RailAmerica enforceable against
RailAmerica in accordance with their terms.
(6) With respect to the Stock Purchase Contracts and the Stock
Purchase Units, assuming (i) the Registration Statement
(including any amendments thereto) shall become effective
under the Act; (ii) the taking of all necessary corporate
action by the Board of Directors of RailAmerica to approve the
execution and delivery of the applicable purchase contract
agreement and any related pledge agreement and (iii) the due
execution, countersignature, issuance and delivery of the
applicable purchase contract agreement and any related pledge
agreement, upon payment of the consideration therefor provided
for in the applicable definitive purchase, underwriting or
similar agreement, as applicable, or Prospectus Supplement
approved by the Board of Directors of RailAmerica and
otherwise in accordance with the provisions of the applicable
purchase contract agreement and such agreement, the Stock
Purchase Contracts and the Stock Purchase Units will
constitute valid and legally binding obligations of the
RailAmerica enforceable against the RailAmerica in accordance
with their terms.
The opinions set forth in paragraphs 3 through 6 above are subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (ii) the effects of
general equitable principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief, whether enforcement
is considered in a proceeding in equity or law, (iii)
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June 15, 2004
Page 4
the discretion of the court before which any proceeding for enforcement may be
brought and (iv) the unenforceability under certain circumstances under law or
court decisions of provisions providing for the indemnification of or
contribution to a party with respect to a liability where such indemnification
or contribution is contrary to the public policy.
Although we have acted as counsel to the Companies and the Guarantors
in connection with certain other matters, our engagement is limited to certain
matters about which we have been consulted. Consequently, there may exist
matters of a legal nature involving the Companies or the Guarantors in
connection with which we have not been consulted and have not represented the
Companies or the Guarantors. This opinion letter is limited to the matters
stated herein and no opinions may be implied or inferred beyond the matters
expressly stated herein. The opinions expressed herein are as of the date
hereof, and we assume no obligation to update or supplement such opinions to
reflect any facts or circumstances that may hereafter come to our attention or
any changes in law that may hereafter occur.
This opinion is being furnished to the Companies and the Guarantors
solely for submission to the Commission as an exhibit to the Registration
Statement and, accordingly, may not be reprinted, reproduced or distributed to,
relied upon by, quoted in any manner to, or delivered to any other person or
entity without, in each instance, our prior written consent, except that we
hereby consent to the filing of this opinion as an exhibit to the Registration
Statement and to the use of the name of our firm therein. In giving this
consent, we do not admit that we are experts within the meaning of Section 11 of
the Act or within the category of persons whose consent is required by Section 7
of the Act.
We are qualified to practice law in the State of Florida and we do not
purport to be experts on the law of any other jurisdiction other than the
federal laws of the United States of America and the Delaware General
Corporation Law. We do not express any opinion herein concerning any law other
than the laws of the State of Florida, the federal laws of the United States
and, to the extent set forth herein, the Delaware General Corporation Law. We
express no opinion and make no representation with respect to the law of any
other jurisdiction.
Very truly yours,
GREENBERG TRAURIG, P.A.
By: /s/ Fern S. Watts
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Fern S. Watts