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Exhibit 2.1
EXECUTION COPY
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AmeriServe Food Distribution, Inc.
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$500,000,000
10 1/8% Senior Subordinated Notes due 2007
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PURCHASE AGREEMENT
DATED AS OF JULY 9, 1997
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Donaldson, Lufkin & Jenrette
Securities Corporation
BancAmerica Securities, Inc.
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AmeriServe Food Distribution, Inc.
$500,000,000 Principal Amount of
10 1/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
July 9, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
BANCAMERICA SECURITIES, INC.
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
AmeriServe Food Distribution, Inc., a Nebraska corporation (the
"Company"), proposes to issue and sell an aggregate of $500,000,000 in principal
amount of 10 1/8% Senior Subordinated Notes due 2007 (the "Senior Subordinated
Notes") of the Company, to Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") and BancAmerica Securities, Inc. ("BancAmerica" and, together with DLJ,
the "Initial Purchasers") to be issued pursuant to an indenture (the
"Indenture") between the Company, each of the subsidiaries of the Company noted
on Schedule I hereto (the "Subsidiary Guarantors") and State Street Bank and
Trust Company of Connecticut, N.A., as trustee (the "Trustee"). The Senior
Subordinated Notes and the New Senior Subordinated Notes (as defined below)
issuable in exchange therefor are collectively referred to herein as the
"Notes." The Notes will be guaranteed on a senior subordinated basis by the
Subsidiary Guarantors pursuant to their guarantee (the "Note Guarantees"). The
Notes and the Note Guarantees are hereinafter collectively referred to as the
"Securities." Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture.
The Senior Subordinated Notes are being issued and sold in connection with
an Asset Purchase Agreement (the "Asset Purchase Agreement") dated as of May 23,
1997, as amended, by and between the Company and the Pepsi Food Service division
of PepsiCo, Inc. ("PFS"). The Asset Purchase Agreement provides that, subject to
certain conditions as described therein, the Company will acquire substantially
all of the assets of PFS (the "Acquisition") for a purchase price of $830
million in cash and the assumption of certain liabilities (the "Asset Purchase
Consideration").
The proceeds to the Company from the sale to the Initial Purchasers
of the Senior Subordinated Notes (the "Proceeds") will be used to partially fund
the Asset Purchase Consideration.
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In addition to the Proceeds, the Company will generate funding for the
Acquisition through (i) borrowings under a credit facility (the "New Credit
Facility") with the financial institutions which are party thereto (the
"Lenders") and Bank of America National Trust and Savings Association, as agent
for the Lenders, to be entered into concurrently with the closing of the
Acquisition, (ii) Accounts Receivable Transactions and (iii) an equity
contribution from Nebco Evans Holding Company ("NEHC"), the corporate parent of
the Company.
1. ISSUANCE OF SECURITIES. The Senior Subordinated Notes will be offered
and sold to the Initial Purchasers pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company has prepared a preliminary offering memorandum, dated June
23, 1997 (the "Preliminary Offering Memorandum") and a final offering
memorandum, dated July 9, 1997 (the "Offering Memorandum" and, together with the
Preliminary Offering Memorandum, the "Offering Documents"), relating to the
Senior Subordinated Notes.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Senior
Subordinated Notes (and all securities issued in exchange therefor, in
substitution thereof or upon conversion thereof) shall bear the following
legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) INSIDE THE UNITED STATES TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED
STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 904 UNDER THE SECURITIES ACT, (d) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF THE SECURITIES
ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $100,000, AN OPINION OF COUNSEL THAT SUCH TRANSFER IS
IN COMPLIANCE WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND,
IN THE CASE OF CLAUSE (b), (c), (d), or (e), BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR (3) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
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2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to the terms
and conditions contained herein, the Company agrees to issue and sell to the
Initial Purchasers, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Company, the principal amounts of Senior
Subordinated Notes set forth opposite the name of such Initial Purchaser on
Schedule II hereto at a purchase price equal to 97% of the principal amount
thereof (the "Purchase Price").
3. TERMS OF OFFERING. The Initial Purchasers will make offers (the
"Exempt Resales") of the Senior Subordinated Notes purchased hereunder on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to persons (each, a "144A Purchaser") whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers" as defined in Rule 144A under the
Act ("QIBs") or persons otherwise exempt under Regulation S of the Securities
Act (together with QIBs, "Eligible Purchasers"). The Initial Purchasers will
offer the Senior Subordinated Notes to Eligible Purchasers initially at a price
equal to 100% of the principal amount thereof. Such price may be changed at any
time without notice.
Holders (including subsequent transferees) of the Senior Subordinated
Notes will have the registration rights set forth in the registration rights
agreement (the "Registration Rights Agreement"), to be dated the Closing Date
(as defined below), in substantially the form of Exhibit A hereto, for so long
as such Senior Subordinated Notes constitute "Transfer Restricted Securities"
(as defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Company will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, (i) a registration statement under the Act (the "Exchange Offer
Registration Statement") relating to (A) Company's 10 1/8% new Senior
Subordinated Notes due 2007 (the "New Senior Subordinated Notes") to be offered
in exchange for the Senior Subordinated Notes, (such offer to exchange being
referred to as the "Registered Exchange Offer") and (ii) a shelf registration
statement pursuant to Rule 415 under the Act (the "Shelf Registration Statement"
and, together with the Exchange Offer Registration Statement, the "Registration
Statements") relating to the resale by certain holders of the Senior
Subordinated Notes, and to use their best efforts to cause such Registration
Statements to be declared effective and consummate the Registered Exchange
Offer. This Agreement, the Indenture, the Notes, the Note Guarantees and the
Registration Rights Agreement are hereinafter referred to collectively as the
"Operative Documents."
4. DELIVERY AND PAYMENT. (a) Delivery of, and payment of the Purchase
Price for, the Senior Subordinated Notes shall be made at the offices of
Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street New York, New York 10019 or
at such other location as may be mutually acceptable. Such delivery and payment
shall be made at 9:00 a.m. New York City time, on July 11, 1997 or at such other
time as shall be agreed upon by the Company and the Initial Purchasers. The time
and date of such delivery and the payment are herein called the "Closing Date."
(b) One or more Senior Subordinated Notes in definitive form, registered
in the name of Cede & Co., as nominee of the Depository Trust Company ("DTC"),
or such other names as the Initial Purchasers may request upon at least one
business day's notice to the Company, having an aggregate principal amount
corresponding to the aggregate principal amount of Senior Subordinated Notes
sold pursuant to Exempt Resales to Eligible Purchasers (collectively, the
"Master Notes"), shall be delivered by the Company to the Initial Purchasers (or
as the Initial Purchasers direct) in each case with any taxes
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thereon duly paid by the Company, against payment by the Initial Purchasers of
the Purchase Price thereof by wire transfer in same day funds to the order of
the Company or as the Company may direct. The Master Notes shall be made
available to the Initial Purchasers for inspection not later than 9:30 a.m., New
York City time, on the business day immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS. The Company
and the Subsidiary Guarantors, jointly and severally, covenant and agree with
the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, to confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending
the qualification or exemption from qualification of any of the Senior
Subordinated Notes for offering or sale in any jurisdiction designated by
the Initial Purchasers pursuant to Section 5(e) hereof, or the initiation
of any proceeding for such purpose by any state securities commission or
other regulatory authority and (ii) of the happening of any event that
makes any statement of a material fact made in the Offering Documents (or
any amendment or supplement thereto) untrue or that requires the making of
any additions to or changes in the Offering Documents (or any amendment or
supplement thereto) in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading. The
Company shall use its best efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption from
qualification of the Senior Subordinated Notes under any state securities
or Blue Sky laws, and, if at any time any state securities commission or
other regulatory authority shall issue any stop order or order suspending
the qualification or exemption from qualification of any of the Senior
Subordinated Notes under any state securities or Blue Sky laws, the
Company shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers to the Company, without charge, as many copies
of the Offering Documents, and any amendments or supplements thereto, as
the Initial Purchasers may reasonably request. The Company consents to the
use of the Offering Documents, and any amendments or supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) During such period as in the written opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be
delivered in connection with the Exempt Resales by the Initial Purchasers
and in connection with market-making activities of the Initial Purchasers
for so long as the Senior Subordinated Notes are outstanding (i) not to
amend or supplement the Offering Documents, whether before or after the
Closing Date, unless the Initial Purchasers shall previously have been
advised thereof, and shall not have objected thereto within a reasonable
time after being furnished a copy thereof, and (ii) to promptly prepare,
upon the Initial Purchasers' reasonable request, any amendment or
supplement to the Offering Documents that the Initial Purchasers
reasonably believe necessary or advisable in connection with Exempt
Resales or such market-making activities.
(d) If, after the date hereof and prior to the earlier of the
completion of all Exempt Resales by the Initial Purchasers and the 90th
day after the Closing Date, any event shall occur as a result of which, in
the judgment of the Company or counsel to the Initial Purchasers, it
becomes necessary to amend or supplement the Offering Memorandum in order
to make the
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statements therein, in the light of the circumstances when such Offering
Memorandum is delivered to an Eligible Purchaser, not misleading or if it
is necessary to amend or supplement the Offering Memorandum to comply with
any law, statute, rule or regulation, to forthwith prepare an appropriate
amendment or supplement to such Offering Memorandum so that the statements
therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such
Offering Memorandum will comply with applicable law.
(e) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the registration or qualification of
the Senior Subordinated Notes under the state securities or Blue Sky laws
of such jurisdictions as the Initial Purchasers may request, to continue
such registration or qualification in effect so long as required for the
Exempt Resales and to file such consents to service of process or other
documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required
in connection therewith to register or qualify as a foreign corporation in
any jurisdiction in which the Company is not now so qualified, or take any
action that would subject the Company to general consent to service of
process or taxation, other than as to matters and transactions relating to
Exempt Resales, in any jurisdiction in which the Company is not now so
subject.
(f) For so long as the Notes are outstanding, to furnish without
charge to the Initial Purchasers promptly upon their becoming available
(i) all reports or other publicly available information that the Company
shall mail or otherwise make available to the Company's stockholders and
(ii) all reports, financial statements and proxy or information statements
filed by the Company or its subsidiaries with the Commission or any
national securities exchange and such other publicly available information
concerning the business and financial condition of the Company or its
subsidiaries, including without limitation, press releases, as the Initial
Purchasers may reasonably request.
(g) To use the net proceeds from the sale of the Senior Subordinated
Notes in the manner described in the Offering Memorandum (and any
amendments or supplements thereto) under the caption "Use of Proceeds."
(h) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
(i) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated to
pay and be responsible for all costs, expenses, fees and taxes in
connection with or incident to:
(1) the preparation, printing, processing, duplicating, filing
and distribution of the Offering Documents (including, without
limitation, financial statements and exhibits) and all amendments
and supplements thereto;
(2) the preparation, printing and delivery of the Operative
Documents, the preliminary and final Blue Sky memoranda and all
other agreements, memoranda, correspondence and other documents
printed, distributed and delivered in connection herewith and with
the Exempt Resales (including in each case any disbursements of
counsel to the Initial Purchasers relating to such printing and
delivery);
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(3) the issuance, transfer and delivery by the Company and the
Subsidiary Guarantors of the Senior Subordinated Notes and the Note
Guarantees to the Initial Purchasers;
(4) the registration or qualification of the Notes and the
Note Guarantees for offer and sale under the securities or Blue Sky
laws of the jurisdictions referred to in Section 5(e) (including,
in each case, the fees and disbursements of counsel to the Initial
Purchasers relating to such registration or qualification and
memoranda relating thereto);
(5) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be requested for use in connection with
the Exempt Resales;
(6) the preparation of certificates for the Notes (including,
without limitation, printing and engraving thereof);
(7) the rating of the Notes by investment rating agencies;
(8) the fees, disbursements and expenses of the Company's and
the Subsidiary Guarantors' counsel and accountants;
(9) all expenses and listing fees in connection with the
application for quotation of the Senior Subordinated Notes in the
National Association of Securities Dealers, Inc. ("NASD") Automated
Quotation System - PORTAL ("PORTAL");
(10) the fees and expenses of the Trustee and the Trustee's
counsel in connection with the Indenture and the Notes;
(11) all fees and expenses (including fees and expenses of
counsel to the Company) of the Company in connection with approval
of the Notes by DTC for "book-entry" transfer; and
(12) the performance by the Company of its other obligations
under this Agreement and the other Operative Documents.
(j) If this Agreement shall be terminated pursuant to any of the
provisions hereof (other than a default by the Initial Purchasers) or if
for any reason the Company shall be unable or unwilling to perform their
obligations hereunder, the Company shall, except as otherwise agreed by
the parties hereto, reimburse the Initial Purchasers for the fees and
expenses to be paid or reimbursed pursuant to Section 5(i) above, and
reimburse the Initial Purchasers for all out-of-pocket expenses (including
the fees and expenses of counsel to the Initial Purchasers) reasonably
incurred by the Initial Purchasers in connection with the transactions
contemplated by this Agreement.
(k) Prior to the consummation of the Exchange Offer, to furnish to
the Initial Purchasers, as soon as they have been prepared by the Company,
a copy of any consolidated financial statements of the Company for any
period subsequent to the period covered by the financial statements
appearing in the Offering Memorandum.
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(l) Not to distribute prior to the Closing Date any offering
material in connection with the offering and sale of the Senior
Subordinated Notes other than the Offering Memorandum.
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Senior Subordinated Notes in
a manner that would require the registration under the Act of the sale to
the Initial Purchasers or the Eligible Purchasers of the Senior
Subordinated Notes.
(n) For so long as any of the Notes remain outstanding and during
any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available to any holder of Notes in connection
with any sale thereof and any prospective purchaser of such Notes from
such holder, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Act.
(o) To comply with all of their agreements set forth in the
Registration Rights Agreement, and all agreements set forth in the
representation letters of the Company to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer.
(p) To cause the Exchange Offer to be made in the appropriate form
to permit registered New Senior Subordinated Notes to be offered in
exchange for the Senior Subordinated Notes and to comply with all
applicable federal and state securities laws in connection with the
Registered Exchange Offer.
(q) To use their respective best efforts to cause the Notes to be
eligible for trading through PORTAL and to obtain approval of the Notes by
DTC for "book-entry" transfer.
6. REPRESENTATIONS AND WARRANTIES. The Company and the Subsidiary
Guarantors represent and warrant to each of the Initial Purchasers that:
(a) The Offering Documents have been prepared in connection with the
Exempt Resales. The Preliminary Offering Memorandum and the Offering
Memorandum do not and any supplement or amendment thereto will not,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or
omissions from the Offering Documents (or any amendment or supplement
thereto) made in reliance upon information relating to the Initial
Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use therein. The Company acknowledges for all purposes under
this Agreement that the statements set forth in the last paragraph on the
cover page, the legend on the bottom of the inside cover page and in the
first sentence of the third paragraph, the first sentence of the fourth
paragraph and the third sentences of the seventh and ninth paragraphs
under the caption "Plan of Distribution" in the Offering Memorandum
constitute the only written information furnished to the Company by the
Initial Purchasers expressly for use in the Offering Documents (or any
amendment or supplement thereto). No stop order preventing the use of the
Offering Documents, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued.
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(b) Each of the Company and its subsidiaries (i) has been, and after
giving effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement will be, duly organized and validly existing as a
corporation in good standing under the laws of its respective
jurisdiction, (ii) has, and after giving effect to the Acquisition
pursuant to the terms of the Asset Purchase Agreement will have, all
requisite corporate power and authority to carry on its business as
described in the Offering Memorandum and to own, lease and operate its
properties, and (iii) is, and after giving effect to the Acquisition
pursuant to the terms of the Asset Purchase Agreement will be, duly
qualified and in good standing as a foreign corporation authorized to do
business in each other jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect. As used herein, "Material Adverse Effect" shall mean, with respect
to any Person, any effect or group of related or unrelated effects that
(i) would be reasonably expected to result in a material adverse effect on
the assets, properties, business, results of operations, condition
(financial or otherwise) or prospects of the Company and its subsidiaries,
taken as a whole or (ii) would reasonably be expected to interfere with,
adversely affect or question the validity of the execution, delivery and
performance of any of the Operative Documents, the issuance of the Notes
and the Note Guarantees or the consummation of this Agreement.
(c) All of the issued and outstanding shares of capital stock of the
Company and each of its subsidiaries have been duly and validly authorized
and issued, and all of the shares of capital stock of each such subsidiary
are owned, directly or indirectly, by the Company. All such shares of
capital stock are fully paid and non-assessable and have not been issued
in violation of any preemptive or similar rights and are owned free and
clear of any security interest, mortgage, pledge, claim, lien, limitation
on voting rights or encumbrance (each, a "Lien"), except for Liens granted
pursuant to the New Credit Facility. There are not currently, and will not
be as a result of the Offering or the consummation of the Acquisition
pursuant to the terms of the Asset Purchase Agreement, any outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or Liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of, or
other securities evidencing equity ownership interests in, the Company or
any of its subsidiaries.
(d) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under the Operative Documents
to which it is a party, and to consummate the transactions contemplated
hereby and thereby, including, without limitation, the corporate power and
authority to issue, sell and deliver the Senior Subordinated Notes to the
Initial Purchasers.
(e) The Subsidiary Guarantors have all necessary corporate power and
authority to enter into and perform their obligations under the Operative
Documents to which they are parties, and to issue, sell and deliver the
Note Guarantees to the Initial Purchasers.
(f) Neither the Company nor any of its subsidiaries is, and after
giving effect to the Offering and the Acquisition pursuant to the terms of
the Asset Purchase Agreement will be, (i) in violation of its charter or
bylaws, (ii) in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument, in each
case, which is material to the conduct of the business of the Company, to
which the Company is a party or by which it or any of the Company's
subsidiaries or their respective property is bound, or (iii) in violation
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of any local, state or federal law, statute, ordinance, rule, regulation,
requirement, judgment or court decree (including, without limitation,
environmental laws, statutes, ordinances, rules, regulations, judgments or
court decrees) applicable to the Company, its subsidiaries or any of its
assets or properties (whether owned or leased), other than violations or
defaults that would not reasonably be expected to have a Material Adverse
Effect. To the best knowledge of the Company, there exists no condition
that, with notice, the passage of time or otherwise, would constitute a
default under any such document or instrument, except for such defaults
that could not reasonably be expected to have a Material Adverse Effect.
(g) None of (i) the execution, delivery or performance by the
Company or the Subsidiary Guarantors of this Agreement and the other
Operative Documents, (ii) the performance by the Company of the Asset
Purchase Agreement and consummation of the Acquisition pursuant to the
terms of the Asset Purchase Agreement, (iii) the issuance and sale of the
Notes by the Company or the issuance of the Note Guarantees by the
Subsidiary Guarantors and (iv) the consummation by the Company of the
transactions described in the Offering Memorandum under the caption "Use
of Proceeds," will conflict with or constitute a breach of any of the
terms or provisions of, or, after giving effect to the Acquisition
pursuant to the terms of the Asset Purchase Agreement, will violate,
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, or result in the imposition of a lien or encumbrance
on any properties of the Company or the Subsidiary Guarantors, as the case
may be, or an acceleration of indebtedness pursuant to, (1) the respective
charter or bylaws of the Company or the Subsidiary Guarantors, as the case
may be, (2) any bond, debenture, note, indenture, mortgage, deed of trust
or other agreement or instrument to which the Company or the Subsidiary
Guarantors, as the case may be, is a party or by which any of their
respective property is bound, or (3) any law or administrative regulation
applicable to the Company or the Subsidiary Guarantors, as the case may
be, or any of their assets or properties, or any judgment, order or decree
of any court or governmental agency or authority entered in any proceeding
to which the Company or the Subsidiary Guarantors, as the case may be, was
or is now a party or to which any of their respective properties may be
subject. No consent, approval, authorization or order of, or filing or
registration with, any regulatory body, administrative agency, or other
governmental agency (except as securities or Blue Sky laws of the various
states may require) is required for the execution, delivery and
performance of the Operative Documents and the valid issuance and sale of
the Securities. No consents or waivers from any person are required to
consummate the transactions contemplated by the Operative Documents or the
Offering Documents, other than such consents and waivers as have been or
will be obtained prior to the Closing Date or, in the case of the
Registration Rights Agreement and the transactions contemplated thereby,
will be obtained and made under the Act, the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act") and state securities or Blue Sky
laws and regulations.
(h) This Agreement has been duly authorized and, when validly
executed by the Company and the Subsidiary Guarantors and (assuming the
due execution and delivery thereof by the Initial Purchasers) is a legally
valid and binding obligation of the Company and the Subsidiary Guarantors,
enforceable against each in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally, (ii) limited by
general principles of equity (whether considered in a proceeding at law or
in equity) and (iii) limited by securities laws prohibiting or limiting
the availability of, and public policy against, indemnification or
contribution.
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(i) The Company and the Subsidiary Guarantors have duly authorized
the Indenture, and when the Company and the Subsidiary Guarantors have
duly executed and delivered the Indenture (assuming the due
authorization, execution and delivery thereof by the Trustee), the
Indenture will be the legally valid and binding obligation of each,
enforceable against each in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at law or
in equity).
(j) The Company has duly authorized the Senior Subordinated Notes
and, when issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms hereof, will be the legally valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be (i) subject
to applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors' rights
generally and (ii) limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(k) The Subsidiary Guarantors have duly authorized the Note
Guarantees to be endorsed on the Senior Subordinated Notes and, when the
Senior Subordinated Notes are issued and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms hereof, the Note Guarantees will
be the legally valid and binding obligations of the Subsidiary Guarantors,
enforceable against the Subsidiary Guarantors in accordance with their
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors' rights generally
and (ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(l) The Company has duly authorized the New Senior Subordinated
Notes and, when issued and authenticated in accordance with the terms of
the Registered Exchange Offer and the Indenture, the New Senior
Subordinated Notes will be the legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors' rights generally
and (ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(m) The Subsidiary Guarantors have duly authorized the Note
Guarantees to be endorsed on the New Senior Subordinated Notes and, when
the New Senior Subordinated Notes are issued and authenticated in
accordance with the terms of the Registered Exchange Offer and the
Indenture, the Note Guarantees will be the legally valid and binding
obligations of the Subsidiary Guarantors, enforceable against the
Subsidiary Guarantors in accordance with their terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at law or
in equity).
(n) The Registration Rights Agreement has been duly authorized and
when validly executed by the Company and the Subsidiary Guarantors will be
(assuming the due execution and
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delivery thereof by the Initial Purchasers) the legally valid and binding
obligation of each, enforceable against each in accordance with its terms,
except as the enforceability thereof may be (i) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors' rights generally and
(ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(o) The Asset Purchase Agreement has been duly and validly
authorized by the Company and is a legally valid and binding agreement of
the Company, enforceable against it in accordance with its terms, except
as enforcement may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, moratorium, reorganization or other similar laws
and court decisions affecting or relating to the rights of creditors
generally or by general principles of equity, and except as rights to
indemnification may be limited by applicable law.
(p) The New Credit Facility has been duly authorized and when
validly executed by the Company and the subsidiaries of the Company that
are obligors thereunder will be the legally valid and binding obligation
of each, enforceable against each in accordance with its terms, except as
the enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at law or
in equity).
(q) There is, and after giving effect to the Acquisition pursuant to
the terms of the Asset Purchase Agreement will be, (i) no action, suit,
proceeding or investigation before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending,
threatened, or, to the knowledge of the Company, contemplated to which the
Company or the Subsidiary Guarantors is or may be a party or to which the
business or property of the Company or the Subsidiary Guarantors is or,
after giving effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement, may be subject, (ii) no statute, rule, regulation or
order that has been enacted, adopted or issued by any governmental agency
or, to the best knowledge of the Company, proposed by any governmental
body or (iii) no injunction, restraining order or order of any nature
issued by a federal or state court of competent jurisdiction to which the
Company or the Subsidiary Guarantors is or may be subject that, in the
case of clauses (i), (ii) and (iii) above, (1) is required to be disclosed
in the Offering Memorandum and that is not so disclosed, (2) could
reasonably be expected to have a Material Adverse Effect or (3) would
interfere with or adversely affect the issuance of the Senior Subordinated
Notes or the Note Guarantees.
(r) There are no holders of any security of the Company or the
Subsidiary Guarantors who by reason of the execution by the Company and
the Subsidiary Guarantors of this Agreement or any other Operative
Document or the consummation of the transactions contemplated hereby and
thereby, have the right to request or demand that the Company or the
Subsidiary Guarantors register under the Act, or analogous foreign laws
and regulations, securities held by them.
(s) The Company has delivered to the Initial Purchasers true and
correct executed copies of the Asset Purchase Agreement and all documents
and agreements related thereto and there have been no amendments,
alterations, modifications or waivers thereto or in the exhibits or
schedules thereto, except as have been delivered to the Initial
Purchasers.
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(t) The Company is not, and after giving effect to the Acquisition
pursuant to the terms of the Asset Purchase Agreement will not be,
involved in any material labor dispute nor, to the knowledge of the
Company, is any material dispute threatened which, if such dispute were to
occur, could have a Material Adverse Effect.
(u) The Company has not violated any safety or similar law
applicable to its business, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or the rules and regulations promulgated thereunder, except for such
instances of noncompliance that, either singly or in the aggregate, could
not have a Material Adverse Effect.
(v) The Company is, and after giving effect to the Acquisition
pursuant to the terms of the Asset Purchase Agreement will be, in
compliance with all applicable existing federal, state, local and foreign
laws and regulations (collectively, "Environmental Laws") relating to the
protection of human health or the environment or imposing liability or
standards of conduct concerning any Hazardous Material (as defined below),
except for such instances of noncompliance that, either singly or in the
aggregate, could not have a Material Adverse Effect. The term "Hazardous
Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (ii) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (iii) any petroleum or
petroleum product, (iv) any polychlorinated biphenyl and (v) any pollutant
or contaminant or hazardous, dangerous or toxic chemical, material, waste
or substance regulated under or within the meaning of any other
Environmental Law. Except as set forth in the Offering Memorandum, there
is no alleged liability, or, to the best knowledge and information of the
Company, potential liability (including, without limitation, alleged or
potential liability for investigatory costs, cleanup costs, governmental
response costs, natural resource damages, property damages, personal
injuries, or penalties) of the Company or any of its subsidiaries arising
out of, based on, or resulting from (1) the presence or release into the
environment of any Hazardous Material at any location currently or
previously owned by the Company or any of its subsidiaries or at any
location currently or previously used or leased by the Company or any of
its subsidiaries, or (2) any violation or alleged violation of any
Environmental Law, except in each case with respect to clause (1) and (2),
alleged or potential liabilities that, singly or in the aggregate, could
not have a Material Adverse Effect.
(w) The Company and each of its Subsidiaries has and, after giving
effect to the Acquisition pursuant to the terms of the Asset Purchase
Agreement, will have, such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws, as
are necessary or will be necessary, to own, lease and operate their
respective properties and to conduct their respective businesses in the
manner described in the Offering Memorandum, except for those permits the
absence of which could not reasonably be expected to have a Material
Adverse Effect; the Company and each of its Subsidiaries has and, after
giving effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement, will have, fulfilled and performed all of its
obligations with respect to such permits, except for such obligations the
failure of which to be fulfilled or performed could not reasonably be
expected to have a Material Adverse Effect and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit, except for such event, that,
individually or in the aggregate, could not reasonably
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be expected to have a Material Adverse Effect; and, except as described in
the Offering Memorandum, such permits contain no restrictions that are or
will be materially burdensome to the Company or any of its Subsidiaries.
(x) In connection with the Acquisition, the Company has reviewed the
effect of Environmental Laws and the disposal of hazardous or toxic
substances or wastes, pollutants or contaminants on the business, assets,
operations and properties of PFS and identified and evaluated associated
costs and liabilities (including, without limitation, all material capital
and operating expenditures required for clean-up, closure of properties
and compliance with Environmental Laws, all permits, licenses and
approvals, all related constraints on operating activities and all
potential liabilities to third parties). On the basis of such reviews,
including the indemnification provided by the Asset Purchase Agreement,
the Company has reasonably concluded that such associated costs and
liabilities could not reasonably be expected to have a Material Adverse
Effect.
(y) The Company and its subsidiaries own or possess free and clear
of all Liens or has the right to use free and clear of any rights of third
parties that adversely affect such use by the Company and its subsidiaries
and, after giving effect to the Acquisition pursuant to the terms of the
Asset Purchase Agreement, will own or possess free and clear of all Liens
or have the right to use free and clear of any rights of third parties
that adversely affect such use by the Company and its subsidiaries, all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by either of them or which are proposed to
be employed by either of them in connection with the businesses now
operated by either of them or which are proposed to be operated by them,
except where the failure to own or possess such Intellectual Property
could not, either singly or in the aggregate, have a Material Adverse
Effect. The use of such Intellectual Property in connection with the
business and operations of the Company and its subsidiaries does not to
the Company's knowledge, infringe on the rights or claimed rights of any
person. No other person is, to the Company's knowledge, infringing upon
any of the Intellectual Property of the Company or has notified the
Company or any of its subsidiaries that it is claiming ownership of, or
the right to use any Intellectual Property owned by the Company or its
subsidiaries. The Company and its subsidiaries have taken all reasonable
steps to protect the Intellectual Property from infringement by any other
person, except where the failure to take such steps would not,
individually or in the aggregate, have a Material Adverse Effect on the
Company. Other than in connection with the use of so-called
"off-the-shelf" software and except as otherwise disclosed in the Offering
Memorandum, neither the Company nor its subsidiaries are obligated or
under any liability whatsoever to make any payment in excess of $150,000
per fiscal year, in the aggregate, by way of royalties, fees or otherwise
to any persons with respect to the use of the Intellectual Property.
Neither the Company nor any of its subsidiaries has received (i) any
notice of infringement of or conflict with assessed rights of others with
respect to any Intellectual Property or (ii) any notice of an action or
proceeding seeking to limit, cancel or question the validity of any
Intellectual Property, which singly or in the aggregate, if the subject of
any unfavorable decision, ruling or finding, might have a Material Adverse
Effect on the Company.
(z) All tax returns required to be filed by the Company or any of
its subsidiaries in any jurisdiction have been filed, and all material
taxes (including, without limitation, withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be due
from
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any taxing authority) have been paid other than those being contested in
good faith and for which adequate reserves have been provided. To the
knowledge of the Company, there are, and after giving effect to the
Acquisition pursuant to the terms of the Asset Purchase Agreement will be,
no material proposed additional tax assessments against the Company, any
of its subsidiaries or the assets or property of the Company or any of its
subsidiaries.
(aa) The Company and its subsidiaries have and, after giving effect
to the Acquisition pursuant to the terms of the Asset Purchase Agreement,
will have all certificates, consents, exemptions, orders, permits,
franchises, licenses, authorizations, or other approvals (each, an
"Authorization") of and from, and has made all declarations and filings
with and notices to, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, necessary or required to own, lease, license, operate and use
their respective properties and assets and to conduct their business in
the manner described in the Offering Memorandum except for such
Authorizations the absence of which could not reasonably be expected to
have a Material Adverse Effect on the Company; all such Authorizations are
and, after giving effect to the Acquisition pursuant to the terms of the
Asset Purchase Agreement, will be valid and in full force and effect; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Authorizations and with the rules and regulations
of the regulatory authorities and governing bodies having jurisdiction
with respect thereto; and neither the Company nor any of its subsidiaries
has received any notice, or has any knowledge or belief (or any basis
therefor), that any governmental body or agency is considering limiting,
suspending or revoking any such Authorization.
(ab) Except as set forth in the Offering Memorandum and except as
could not reasonably be expected to have a Material Adverse Effect on the
Company, (i) the Company and its subsidiaries has and, after giving effect
to the Acquisition pursuant to the terms of the Asset Purchase Agreement,
will have good and marketable title, free and clear of all Liens except
Liens for taxes not yet due and payable and Liens granted pursuant to the
New Credit Facility, to all property and assets described in the Offering
Memorandum as being owned by each of them. All leases to which the Company
or any of its subsidiaries is a party are and, after giving effect to the
Acquisition pursuant to the terms of the Asset Purchase Agreement, will be
legally valid and binding and, to the best of the Company's knowledge, no
default has occurred or is continuing thereunder which could reasonably be
expected to have a Material Adverse Effect on the Company, and the Company
and its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which the Company and its subsidiaries are a party as
lessee with such exceptions as do not materially interfere with the use
currently made by the Company or its subsidiaries, as the case may be.
(ac) The Company maintains and, after giving effect to the
Acquisition pursuant to the terms of the Asset Purchase Agreement, will
endeavor to maintain adequate insurance for its business and the value of
its properties (including, without limitation, public liability insurance,
third party property damage insurance and replacement value insurance),
and, to the best of the Company's knowledge, all such insurance is
outstanding and in force as of the date hereof.
(ad) The financial statements, together with related notes forming
part of the Offering Documents (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations
and changes in financial position of the Company on the basis stated in
the Offering Documents at the respective dates or for the respective
periods to which they apply, and such financial statements and related
schedules and notes have been prepared in
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accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein and
the other financial and statistical information and data set forth in the
Offering Documents (and any amendment or supplement thereto) is, in all
material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company.
The pro forma financial data are, in all material respects, accurately
presented and prepared in good faith on the basis of the assumptions
described therein, and such assumptions are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(ae) The Company and the Subsidiary Guarantors maintain and, after
giving effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement, will maintain a system of internal accounting controls
sufficient to provide assurance that: (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and
to maintain accountability for assets; and (iii) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect thereto.
(af) Subsequent to the dates for which information is given in the
Offering Documents and up to the Closing Date, unless set forth in the
Offering Memorandum or the Company has notified the Initial Purchasers:
(i) neither the Company nor the Subsidiary Guarantors has incurred any
liabilities or obligations, direct or contingent, which are or, after
giving effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement, could reasonably be expected to have a Material
Adverse Effect on the Company or the Subsidiary Guarantors, nor has either
entered into any material transactions not in the ordinary course of
business; (ii) there has not been any decrease in the Company's or the
Subsidiary Guarantors' capital stock or any increase in long-term
indebtedness to meet working capital requirements or any material increase
in short-term indebtedness of the Company or the Subsidiary Guarantors or
any payment of or declaration to pay any dividends or any other
distribution with respect to the Company's or the Subsidiary Guarantors'
capital stock; and (iii) there has not been any event or series of events
that could reasonably be expected to have a Material Adverse Effect.
(ag) Prior to and immediately after the issuance of the Senior
Subordinated Notes and, after giving effect to the Acquisition pursuant to
the terms of the Asset Purchase Agreement, (i) the present fair saleable
value of the assets of the Company and its subsidiaries exceeded and will
exceed the amount that will be required to be paid on, or in respect of,
the debts and other liabilities (including contingent liabilities) of the
Company and its subsidiaries as they become absolute and matured, (ii) the
assets of the Company and its subsidiaries do not constitute and will not
constitute unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted, and (iii) the Company and its
subsidiaries do not intend to, or believe that it will, incur debts or
other liabilities beyond its ability to pay such debts and liabilities as
they mature. In computing the amount of such contingent liabilities at any
time, it is intended that such liabilities will be computed at the amount
that, in light of all the facts and circumstances existing at such time,
represents the amount than can reasonably be expected to become an actual
or matured liability.
(ah) Except as would not otherwise be unlawful, the Company has not
(i) taken, directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably be expected
to constitute, the stabilization or manipulation of the price of any
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security of the Company to facilitate the sale or resale of the Notes or
(ii) since the date of the Preliminary Offering Memorandum (A) sold, bid
for, purchased, or paid anyone other than the Initial Purchasers any
compensation for soliciting purchases of, the Senior Subordinated Notes or
(B) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(ai) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them, has taken or will take any action
that might cause this Agreement or the issuance or sale of the Notes to
violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part
220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part
224) of the Board of Governors of the Federal Reserve System, in each case
as in effect now or as the same may hereafter be in effect on the Closing
Date.
(aj) Neither the Company nor any of its subsidiaries is or, after
giving effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement, will be an "investment company" or a company
"controlled" by an investment company within the meaning of the Investment
Company Act of 1940, as amended.
(ak) The accountants, Ernst & Young LLP, that have certified the
financial statements and supporting schedules included in the Offering
Memorandum are independent public accountants, as required by the Act and
the Exchange Act. The historical financial statements, together with
related schedules and notes, set forth in the Offering Memorandum comply
as to form in all material respects with the requirements applicable to
registration statements on Form S-1 under the Act.
(al) When the Senior Subordinated Notes are issued and delivered
pursuant to this Agreement, such Senior Subordinated Notes will not be of
the same class (within the meaning of Rule 144A under the Act) as
securities of the Company that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted
in a United States automated inter-dealer quotation system.
(am) Assuming (i) that the representations and warranties of the
Initial Purchasers in Section 7 hereof are true, (ii) that the Initial
Purchasers complied with their covenants as set forth in Section 7 hereof,
(iii) that none of the Eligible Purchasers is an affiliate of the Company
and (iv) that each of the Eligible Purchasers is a QIB or is purchasing
the Senior Subordinated Notes pursuant to the exemption provided for under
Regulation S, the purchase and resale of the Senior Subordinated Notes
pursuant hereto (including pursuant to the Exempt Resales) is exempt from
the registration requirements of the Act. No form of general solicitation
or general advertising was used by the Company or any of its
representatives (other than the Initial Purchasers, as to whom the Company
makes no representation) in connection with the offer and sale of the
Senior Subordinated Notes, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class as the Senior
Subordinated Notes have been issued and sold by the Company within the
six-month period immediately prior to the date hereof.
(an) The execution and delivery of this Agreement, the other
Operative Documents and the sale of the Securities to be purchased by the
Eligible Purchasers will not involve any prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code
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with respect to any employee benefit plan of the Company. The
representation made by the Company in the preceding sentence is made in
reliance upon and subject to the accuracy of, and compliance with, the
representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Documents under the Section
entitled "Notice to Investors."
(ao) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date contains, and as of the Closing Date will
contain, all the information specified in, and meeting the requirements
of, Rule 144A(d)(4) under the Act.
(ap) None of the Company, its subsidiaries or any of its or their
affiliates or any person acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Regulation S
with respect to the Senior Subordinated Notes, and the Company, its
subsidiaries and its or their affiliates and all persons acting on its or
their behalf have complied or will comply with the offering restrictions
requirements of Regulation S in connection with the offering of the Senior
Subordinated Notes outside the United States.
(aq) There is no "substantial U.S. market interest" as defined in
rule 902(n) of Regulation S for the Senior Subordinated Notes or any
security of the same class as the Senior Subordinated Notes.
(ar) The sale of the Senior Subordinated Notes in offshore
transactions pursuant to Regulation S is not part of a plan or scheme to
evade the registration provisions of the Act.
(as) The Company and its subsidiaries have complied with all of the
provisions of Florida H.B. 1771, codified as Section 517.075, of the
Florida statutes, and all regulations promulgated thereunder relating to
issuers doing business with the Government of Cuba or with any person or
any affiliate located in Cuba.
7. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE INITIAL
PURCHASERS. Each of the Initial Purchasers, severally and not jointly,
represents and warrants to the Company as follows:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Senior Subordinated
Notes.
(b) Such Initial Purchaser (i) is not acquiring the Senior
Subordinated Notes with a view to any distribution thereof that would
violate the Act or the securities laws of any state of the United States
or any other applicable jurisdiction and (ii) will be reoffering and
reselling the Senior Subordinated Notes only to QIBs in reliance on the
exemption from the registration requirements of the Act provided by Rule
144A and to persons outside the United States in reliance on the exemption
from the registration requirements of the Act provided by Regulation S.
(c) No form of general solicitation or general advertising (within
the meaning of Regulation D under the Act) has been or will be used by
such Initial Purchaser or any of its
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representatives in connection with the offer and sale of any of the Senior
Subordinated Notes, including, but not limited to, articles, notices or
other communications published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting
whose attendees have been invited by any general solicitation or general
advertising.
(d) Such Initial Purchaser agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Senior Subordinated
Notes only from, and will offer to sell the Senior Subordinated Notes only
to, Eligible Purchasers. Such Initial Purchaser further agrees that it
will offer to sell the Senior Subordinated Notes only to, and will solicit
offers to buy the Senior Subordinated Notes only from, persons who in
purchasing such Senior Subordinated Notes will be deemed to have
represented and agreed (i) if such Eligible Purchasers are QIBs, that they
are purchasing the Senior Subordinated Notes for their own account or
accounts with respect to which they exercise sole investment discretion
and that they or such accounts are QIBs, (ii) that such Senior
Subordinated Notes will not have been registered under the Act and may be
resold, pledged or otherwise transferred, only (1) (a) inside the United
States to a person who the seller reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A under the Act in a
transaction meeting the requirements of Rule 144A, (b) in a transaction
meeting the requirements of Rule 144 under the Act, (c) outside the United
States to a foreign person in a transaction meeting the requirements of
Rule 904 under the Act or (d) in accordance with another exemption from
the registration requirements of the Act (and based in the case of clauses
(b) and (c) above upon an opinion of counsel if the Company so requests),
(2) to the Company or (3) pursuant to an effective registration statement
under the Act, in each case, in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction, and (iii) that the holder will, and each subsequent holder
is required to, notify any purchaser from it of the security evidenced
thereby of the resale restrictions set forth in (ii) above. Accordingly,
the Initial Purchaser represents and agrees that neither it, its
affiliates nor any persons acting on its or their behalf has engaged or
will engage in any directed selling efforts within the meaning of Rule
90l(b) of Regulation S with respect to the Senior Subordinated Notes, and
it, or its affiliates and all persons acting on its or their behalf have
complied and will comply with the offering restrictions requirements of
Regulation S.
(e) Such Initial Purchaser represents and agrees that the Senior
Subordinated Notes offered and sold in reliance on Regulation S have been
and will be offered and sold only in offshore transactions and that such
securities have been and will be represented upon issuance by a global
security that may not be exchanged for definitive securities until the
expiration of the Restricted Period and only upon certification of
beneficial ownership of the securities by a non-U.S. person or a U.S.
person who purchased such securities in a transaction that was exempt from
the registration requirements of the Act, which U.S. person will acquire
an interest in a Transfer Restricted Security.
(f) Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Senior Subordinated Notes (other than a sale pursuant to Rule
144A), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Senior
Subordinated Notes from it during the Restricted Period a confirmation or
notice to substantially the following effect:
"The Senior Subordinated Notes covered hereby have not been
registered under the U.S. Securities Act of 1933, as amended (the
"Securities Act") and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons (i) as
part
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of their distribution at any time or (ii) otherwise until 40 days
after the later of the commencement of the offering and the closing
date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above
have the same meanings assigned to them in Regulation S."
The Initial Purchaser further agrees that it has not entered and
will not enter into any contractual arrangement with respect to the
distribution or delivery of the Senior Subordinated Notes, except with its
affiliates or with the prior written consent of the Company.
(g) Such Initial Purchaser further represents and agrees that (i) it
has not offered or sold and will not offer or sell any Senior Subordinated
Notes to persons in the United Kingdom prior to the expiry of the period
of six months from the issue date of the Senior Subordinated Notes, except
to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied and will comply with all applicable provisions
of the Financial Services Act 1986 with respect to anything done by it in
relation to the Senior Subordinated Notes in, from or otherwise involving
the United Kingdom, and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issuance of the Senior Subordinated Notes to a person
who is of a kind described in Article 11(3) of the Financial Services Act
1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom the document may otherwise lawfully be issued or passed on.
(h) Such Initial Purchaser agrees that it will not offer, sell or
deliver any of the Senior Subordinated Notes in any jurisdiction outside
the United States except under circumstances that will result in
compliance with the applicable laws thereof, and that it will take at its
own expense whatever action is required to permit its purchase and resale
of the Senior Subordinated Notes in such jurisdictions. Such Initial
Purchaser understands that no action has been taken to permit a public
offering in any jurisdiction outside the United States where action would
be required for such purpose.
(i) Such Initial Purchaser agrees not to cause any advertisement of
the Senior Subordinated Notes to be published in any newspaper or
periodical or posted in any public place and not to issue any circular
relating to the Senior Subordinated Notes, except such advertisements as
include the statements required by Regulation S.
(j) The sale of the Senior Subordinated Notes in offshore
transactions pursuant to Regulation S is not part of a plan or scheme to
evade the registration provisions of the Act.
(k) Such Initial Purchaser is not a pension or welfare plan (as
defined in Section 3 of ERISA) and is not acquiring the Senior
Subordinated Notes on behalf of a pension or welfare plan.
(l) Prior to consummating the Eligible Resales, the Initial
Purchasers shall have delivered a copy of the Offering Memorandum and any
supplements or amendments thereto to each Eligible Purchaser.
(m) Such Initial Purchaser also understands that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 9(d) and (e) hereof,
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counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and such
Initial Purchaser hereby consents to such reliance.
8. INDEMNIFICATION.
(a) The Company and the Subsidiary Guarantors agree, jointly and
severally, to indemnify and hold harmless (i) each Initial Purchaser, (ii)
each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) any Initial Purchaser (any of the
persons referred to in this clause (ii) being hereinafter referred to as a
"controlling person"), and (iii) the respective officers, directors,
partners, employees, representatives and agents of the Initial Purchasers
or any controlling person (any person referred to in clause (i), (ii) or
(iii) in such capacity may hereinafter be referred to as an "Indemnified
Person") to the fullest extent lawful, from and against any and all
losses, claims, damages, liabilities, judgments, actions and expenses
(including, without limitation and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Person) directly or indirectly
caused by, related to, based upon, arising out of or in connection with
any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum, the Offering Memorandum
or any Rule 144A Information provided by the Company or the Subsidiary
Guarantors to any holder or prospective purchaser of Senior Subordinated
Notes pursuant to Section 5(n) (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
(in the light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities,
judgments, actions or expenses are caused by an untrue statement or
omission or alleged untrue statement or omission that is made in reliance
upon and in conformity with information relating to any of the Initial
Purchasers furnished in writing to the Company by any of the Initial
Purchasers expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum (or any amendment or supplement thereto); provided
however, that the indemnification contained in this paragraph (a) with
respect to the Preliminary Offering Memorandum shall not inure to the
benefit of any Initial Purchaser (or to the benefit of any person
controlling any Initial Purchaser) on account of any such loss, claim,
damage, liability, judgment, action or expense arising from the sale of
Senior Subordinated Notes by such Initial Purchaser to any person if a
copy of the Offering Memorandum, as it may be amended or supplemented,
shall not have been delivered or sent to such person, at or prior to the
confirmation of such sale, and the untrue statement or alleged untrue
statement or omission or alleged omission of a material fact contained in
the Preliminary Offering Memorandum was corrected in the Offering
Memorandum, as it may have been amended or supplemented; provided that the
Company delivered the Offering Memorandum, as it may be amended or
supplemented, to such Initial Purchaser in requisite quantity on a timely
basis to permit such delivery or sending. The Company and the Subsidiary
Guarantors also agree, jointly and severally, to reimburse each
Indemnified Person for any and all reasonable fees and expenses
(including, without limitation, the reasonable fees and expenses of
counsel) as they are incurred in connection with enforcing such
Indemnified Person's rights under this Agreement (including, without
limitation, its rights under this Section 8). The Company shall notify the
Initial Purchasers promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation)
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or litigation in connection with the matters addressed by this Agreement
which involves the Company or an Indemnified Person.
(b) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any of the Indemnified Persons with respect to which indemnity may
be sought against the Company or the Subsidiary Guarantors, such
Indemnified Person shall promptly notify the Company in writing (provided,
that the failure to give such notice shall not relieve the Company of its
obligations pursuant to this Agreement) and the Company shall assume the
defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all reasonable fees
and expenses (regardless of whether it is ultimately determined that an
Indemnified Person is not entitled to indemnification hereunder). Such
Indemnified Person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both
such Indemnified Person and the Company and such Indemnified Person shall
have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company or the Subsidiary Guarantors (in which case the
Company shall not have the right to assume the defense of such action on
behalf of such Indemnified Person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for all such Indemnified Persons, which firm shall
be designated in writing by the Initial Purchasers and that all such
reasonable fees and expenses shall be reimbursed as they are incurred).
None of the Company nor the Subsidiary Guarantors shall be liable for any
settlement of any such action or proceeding effected without the prior
written consent of the Company, but if settled with the written consent of
the Company, which consent will not be unreasonably withheld, the Company
and the Subsidiary Guarantors agree, jointly and severally, to indemnify
and hold harmless any Indemnified Person from and against any loss, claim,
damage, liability or expense by reason of any such settlement.
Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested the Company or the Subsidiary Guarantors to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, the Company and the
Subsidiary Guarantors agree that they shall be liable for any settlement
of any proceeding effected without the Company's written consent if (i)
such settlement is entered into more than thirty (30) business days after
receipt by the Company of the aforesaid request, and (ii) none of the
Company nor the Subsidiary Guarantors shall have reimbursed the
Indemnified Person in accordance with such request prior to the date of
such settlement or contested the reasonableness of such fees and expenses
prior to the date of such settlement. Neither the Company nor the
Subsidiary Guarantors shall, without the prior written consent of each
Indemnified Person (which consent shall not unreasonably be withheld),
settle or compromise or consent to the entry of judgment in or otherwise
seek to terminate any pending or threatened action, claim, litigation or
proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not any Indemnified Person is a party
thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Person from all
liability arising out of such action, claim, litigation or proceeding.
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(c) Each of the Initial Purchasers agrees, severally and not
jointly, to indemnify and hold harmless the Company, any person
controlling (within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act) the Company and the officers, directors, partners,
employees, representatives and agents of each such person to the same
extent as the foregoing indemnity from the Company and the Subsidiary
Guarantors to each of the Indemnified Persons, but only with respect to
claims and actions, losses, damages, liabilities, judgments or expenses,
based on information relating to such Initial Purchasers furnished in
writing by such Initial Purchasers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum (or any amendments or
modifications thereto); provided however, that in no case shall any
Initial Purchaser be liable or responsible for any amount in excess of the
discounts and commissions received by such Initial Purchaser, as set forth
on the cover page of the Offering Memorandum.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, judgments,
actions and expenses (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party (or parties, as
applicable) on the one hand and the indemnified party (or parties, as
applicable) on the other hand from the offering of the Senior Subordinated
Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party (or parties, as
applicable) and the indemnified party, (or parties, as applicable) as well
as any other relevant equitable considerations. The relative benefits
received by the Company and the Subsidiary Guarantors on the one hand, and
the Initial Purchasers, on the other hand, shall be deemed to be in the
same proportion as the total proceeds from the Offering (net of Initial
Purchasers' discounts and commissions but before deducting expenses)
received by the Company bear to the total discounts and commissions
received by the Initial Purchasers, in each case, as set forth on the
table on the cover page of the Offering Memorandum. The relative fault of
the Company and the Subsidiary Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact related to information supplied by the Company and the Subsidiary
Guarantors, on the one hand, or the Initial Purchasers, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company, the Subsidiary Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to
this Section 8(d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, judgments, actions or expenses referred to
in the immediately preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8, the Initial Purchasers (and the Initial Purchasers' related
Indemnified Persons) shall not be required to contribute, in the
aggregate, any amount in excess of the amount by which the total discount
applicable to the Senior Subordinated Notes purchased by such Initial
Purchaser pursuant to this Agreement exceeds the amount equal to (i) the
amount of any damages which the Initial Purchaser has otherwise been
required to pay by
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reason of such untrue or alleged untrue statement or omission or alleged
omission plus (ii) any amount paid or contributed by the Initial Purchaser
pursuant to the Registration Rights Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(e) The indemnity and contribution agreements of the Company and the
Subsidiary Guarantors contained in this Section 8 are in addition to any
liability or obligation which the Company and the Subsidiary Guarantors
may otherwise have to the Indemnified Persons and the indemnity and
contribution agreements of the Initial Purchasers contained in this
Section 8 are in addition to any liability or obligation which the Initial
Purchasers may otherwise have to the Company, any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act) the Company and the officers, directors, partners, employees,
representatives and agents of each such person.
9. CONDITIONS OF THE INITIAL PURCHASERS' OBLIGATIONS. The several
obligations of the Initial Purchasers to purchase and pay for the Senior
Subordinated Notes as provided herein, shall be subject to the satisfaction of
each of the following conditions:
(a) All the representations and warranties of the Company and the
Subsidiary Guarantors contained in this Agreement shall be true and
correct on the Closing Date, with the same force and effect as if made on
and as of the date hereof and the Closing Date, respectively. Each of the
Company and the Subsidiary Guarantors shall have performed or complied
with its obligations and agreements and satisfied the conditions to be
performed, complied with or satisfied by it on or prior to the Closing
Date.
(b) (1) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 9:00 a.m., New
York City time, on the day following the date of this Agreement, or
at such later date and time as to which the Initial Purchasers may
approve;
(2) no action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by
any governmental agency that would, as of the Closing Date, prevent
the issuance of the Senior Subordinated Notes or the Note
Guarantees;
(3) no injunction, restraining order or order of any nature by
a federal or state court of competent jurisdiction shall have been
issued as of the Closing Date or, to the best knowledge of the
Company, threatened against, the Company or the Subsidiary
Guarantors which would prevent the issuance of the Senior
Subordinated Notes or the Note Guarantors; and
(4) no stop order preventing the use of the Offering
Documents, or any amendment or supplement thereto, or suspending the
qualification or exemption from qualification of the Senior
Subordinated Notes for sale in any jurisdiction designated by the
Initial Purchasers pursuant to Section 5(f) hereof shall have been
issued and no proceedings for that purpose shall have been commenced
or shall be pending, threatened or, to the Company's knowledge
contemplated.
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(c) (1) (i)Since the date of the latest balance sheet in the
Offering Memorandum, there shall not have been any material adverse
change, or any development involving a prospective material adverse
change, in the assets, properties, business, results of operations,
condition (financial or otherwise) or prospects, whether or not
arising in the ordinary course of business, of the Company and its
subsidiaries, taken as a whole, (ii) since the date of the latest
balance sheet included in the Offering Memorandum, there shall not
have been any material change, or any development that is reasonably
likely to result in a material change, in the capital stock or in
the long-term debt, or material increase in short-term debt, of the
Company and its subsidiaries, taken as a whole, from that set forth
in the Offering Memorandum and (iii) except as set forth in the
Offering Memorandum, neither the Company nor any of its subsidiaries
shall have any liability or obligation, direct or contingent, which
is material to the Company;
(2) The Company and the Subsidiary Guarantors shall not have
any material liability or obligation, direct or contingent, other
than those reflected in the Offering Memorandum; and
(3) the Initial Purchasers shall have received certificates
dated the Closing Date, signed on behalf of the Company and each of
the Subsidiary Guarantors by (i) the President and (ii) the Chief
Financial Officer of the Company and the Subsidiary Guarantors,
confirming all matters set forth in Sections 9(a), (b) and (c)
hereof.
(d) On the Closing Date, the Initial Purchasers shall have received
an opinion (satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers) dated the Closing Date, of Wachtell, Lipton, Rosen &
Katz, counsel for the Company and the Subsidiary Guarantors, substantially
to the effect that:
(1) AmeriServ Food Company ("AmeriServ") (i) is duly organized
and validly existing as a corporation in good standing under the
laws of its jurisdiction, (ii) has all requisite corporate power and
authority to carry on its business as described in the Offering
Memorandum and to own, lease and operate its properties, and (iii)
is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires
such qualification except where the failure to be so qualified would
not have a Material Adverse Effect.
(2) All of the issued and outstanding shares of capital stock
of, or other securities evidencing equity ownership interests in,
AmeriServ or its subsidiaries have been duly and validly authorized
and issued, and, except as otherwise disclosed in the Offering
Memorandum, all of the shares of capital stock of, or other
securities evidencing equity ownership interests in, each such
subsidiary are owned, directly or indirectly, by AmeriServ. All such
shares of capital stock are fully paid and non-assessable and have
not been issued in violation of any preemptive or similar rights and
are owned free and clear of any Lien, except for Liens granted
pursuant to the New Credit Facility. There are not currently, and
will not be as a result of the Offering any outstanding
subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or Liens related to or entitling any
person to purchase or otherwise to acquire any shares of the capital
stock of, or other securities evidencing equity ownership interests
in, AmeriServ or any of its subsidiaries.
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(3) AmeriServ has all necessary corporate power and authority
to enter into and perform its obligations under the Operative
Documents, and to issue, sell and deliver the Note Guarantees to
the Initial Purchasers.
(4) Neither AmeriServ nor any of its subsidiaries is, and
after giving effect to the Offering will be, (i) in violation of its
charter or bylaws or partnership agreement, as the case may be, (ii)
in default in the performance of any obligation, agreement or
condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or
instrument, in each case which is material to the conduct of the
business of AmeriServ, to which AmeriServ is a party or by which it
or any of its subsidiaries or their respective property is bound, or
(iii) in violation of any local, state or federal law, statute,
ordinance, rule, regulation, requirement, judgment or court decree
(including, without limitation, environmental laws, statutes,
ordinances, rules, regulations, judgments or court decrees)
applicable to AmeriServ, its subsidiaries or any of its assets or
properties (whether owned or leased), other than violations or
defaults that would not reasonably be expected to have a Material
Adverse Effect. To the best knowledge of AmeriServ, there exists no
condition that, with notice, the passage of time or otherwise, would
constitute a default under any such document or instrument, except
for such defaults that could not reasonably be expected to have a
Material Adverse Effect.
(5) None of (i) the execution, delivery or performance by
AmeriServ of this Agreement and the other Operative Documents and
(ii) the issuance of the Note Guarantees by AmeriServ will conflict
with or constitute a breach of any of the terms or provisions of any
of the terms or provisions of, or a default under, or result in the
imposition of a lien or encumbrance on any properties of AmeriServ,
or an acceleration of indebtedness pursuant to, (1) the charter or
bylaws of AmeriServ, (2) to the best of its knowledge, any bond,
debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which AmeriServ is a party or by which
any of its property is bound, or (3) any law or administrative
regulation applicable to AmeriServ or any of its assets or
properties, or any judgment, order or decree of any court or
governmental agency or authority entered in any proceeding to which
AmeriServ was or is now a party or to which any of its properties
may be subject except as would not have a Material Adverse Effect.
No consent, approval, authorization or order of, or filing or
registration with, any regulatory body, administrative agency, or
other governmental agency (except as securities or Blue Sky laws of
the various states may require) is required for the execution,
delivery and performance of the Operative Documents and the valid
issuance and sale of the Securities. No consents or waivers from any
person are required to consummate the transactions contemplated by
the Operative Documents or the Offering Documents, other than such
consents and waivers as have been or will be obtained prior to the
Closing Date or, in the case of the Registration Rights Agreement
and the transactions contemplated thereby, will be obtained and made
under the Act, the Trust Indenture Act and state securities or Blue
Sky laws and regulations.
(6) This Agreement has been duly authorized and, when validly
executed by AmeriServ and (assuming the due execution and delivery
thereof by the Initial Purchasers) is a legally valid and binding
obligation of AmeriServ, enforceable against AmeriServ in accordance
with its terms, except as the enforceability thereof may be (i)
subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws
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in effect which affect the enforcement of creditors' rights
generally, (ii) limited by general principles of equity (whether
considered in a proceeding at law or in equity) and (iii) limited by
securities laws prohibiting or limiting the availability of and
public policy against, indemnification or contribution.
(7) AmeriServ has duly authorized the Indenture, and when
AmeriServ has duly executed and delivered the Indenture (assuming
the due authorization, execution and delivery thereof by the
Trustee), the Indenture will be the legally valid and binding
obligation of AmeriServ, enforceable against AmeriServ in accordance
with its terms, except as the enforceability thereof may be (i)
subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at
law or in equity).
(8) AmeriServ has duly authorized the Note Guarantees to be
endorsed on the Senior Subordinated Notes and, when the Senior
Subordinated Notes are issued and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms hereof, the Note
Guarantees will be the legally valid and binding obligations of
AmeriServ, enforceable against AmeriServ in accordance with their
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors'
rights generally and (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(9) AmeriServ has duly authorized the Note Guarantees to be
endorsed on the New Senior Subordinated Notes and, when the New
Senior Subordinated Notes are issued and authenticated in accordance
with the terms of the Registered Exchange Offer and the Indenture,
the Note Guarantees will be the legally valid and binding
obligations of AmeriServ, enforceable against AmeriServ in
accordance with their terms, except as the enforceability thereof
may be (i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at
law or in equity).
(10) The Registration Rights Agreement has been duly
authorized and when validly executed by AmeriServ will be (assuming
the due execution and delivery thereof by the Initial Purchasers)
the legally valid and binding obligation of AmeriServ, enforceable
against AmeriServ in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect
which affect the enforcement of creditors' rights generally and (ii)
limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(11) The New Credit Facility has been duly authorized and when
validly executed by AmeriServ will be the legally valid and binding
obligation of AmeriServ, enforceable against AmeriServ in accordance
with its terms, except as the enforceability thereof may be (i)
subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights
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generally and (ii) limited by general principles of equity (whether
considered in a proceeding at law or in equity).
(12) To the best knowledge of such counsel, there is and,
after giving effect to the Acquisition pursuant to the terms of the
Asset Purchase Agreement, will be (i) no action, suit, proceeding or
investigation before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending,
threatened, or contemplated to which the Company or the Subsidiary
Guarantors is or may be a party or to which the business or property
of the Company or the Subsidiary Guarantors is or, after giving
effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement, may be subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or proposed by any governmental body or (iii) no
injunction, restraining order or order of any nature issued by a
federal or state court of competent jurisdiction to which the
Company or the Subsidiary Guarantors is or may be subject that, in
the case of clauses (i), (ii) and (iii) above, (1) is required to be
disclosed in the Offering Memorandum and that is not so disclosed,
(2) might have a Material Adverse Effect or (3) would interfere with
or adversely affect the issuance of the Senior Subordinated Notes or
the Note Guarantees.
(13) To the best knowledge of such counsel, there is no
contract or document concerning the Company of a character required
to be described in the Offering Memorandum that is not so described.
(14) To the best knowledge of such counsel, there are no
holders of any security of the Company or the Subsidiary Guarantors
who by reason of the execution by the Company and the Subsidiary
Guarantors of this Agreement or any other Operative Document or the
consummation of the transactions contemplated hereby and thereby,
have the right to request or demand that the Company or the
Subsidiary Guarantors register under the Act, or analogous foreign
laws and regulations, securities held by them.
(15) The statements under the captions "Description of Notes,"
"Description of Indebtedness," "The Acquisition," "The
Transactions--The Acquisition" and "The Business--Litigation" in the
Offering Memorandum, insofar as such statements constitute a summary
of legal matters, documents or proceedings referred to therein, are
correct in all material respects.
(16) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them, has taken or will take
any action that might cause this Agreement or the issuance or sale
of the Notes to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of
the Federal Reserve System, in each case as in effect now or as the
same may hereafter be in effect on the Closing Date.
(17) Neither the Company nor any of its subsidiaries is or,
after giving effect to the Acquisition pursuant to the terms of the
Asset Purchase Agreement, will be an "investment company" or a
company "controlled" by an investment company within the meaning of
the Investment Company Act of 1940, as amended.
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(18) When the Senior Subordinated Notes are issued and
delivered pursuant to this Agreement, such Senior Subordinated Notes
will not be of the same class (within the meaning of Rule 144A under
the Act) as securities of the Company that are listed on a national
securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated inter-dealer
quotation system.
(19) The Indenture is not required to be qualified under the
Trust Indenture Act prior to the first to occur of (i) the
Registered Exchange Offer and (ii) the effectiveness of the Shelf
Registration Statement.
(20) Assuming (i) that the representations and warranties of
the Initial Purchasers in Section 7 hereof are true, (ii) that the
Initial Purchasers complied with their covenants as set forth in
Section 7 hereof, (iii) that none of the Eligible Purchasers is an
affiliate of the Company and (iv) that each of the Eligible
Purchasers is a QIB or is purchasing in a transaction pursuant to
Regulation S, the purchase and resale of the Senior Subordinated
Notes pursuant hereto (including pursuant to the Exempt Resales) is
exempt from the registration requirements of the Act.
(21) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, and each amendment or
supplement thereto, as of its date (except for the financial
statement and the notes thereto and schedules and other financial,
statistical and accounting data included therein, as to which no
opinion need be expressed), complied as to form in all material
respects with the requirements of Rule 144A of the Act.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company, representatives of the
Company's accountants, the Initial Purchasers' representatives and counsel
for the Initial Purchasers, at which conferences the contents of the
Offering Documents and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and assumes
no responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Documents (other than those that such
counsel must opine on pursuant to Section 9(d)(15) of this Agreement), no
facts have come to such counsel's attention which led it to believe that
the Offering Memorandum, on the date thereof or on the date of such
opinion, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express
no view with respect to the financial statements and data and related
notes, the financial statement schedules and other financial, statistical
and accounting data included in the Offering Documents).
(e) On the Closing Date, the Initial Purchasers shall have received
an opinion (satisfactory to the Initial Purchasers and counsel to the
Initial Purchasers) dated the Closing Date, of Cassem, Tierney, Adams,
Gotch and Douglas, counsel for the Company and the Subsidiary Guarantors,
substantially to the effect that:
(1) Each of the Company and the non-Delaware Subsidiary
Guarantors (i) is, and after giving effect to the Acquisition
pursuant to the terms of the Asset Purchase Agreement will be, duly
organized and validly existing as a corporation in good standing
under the laws of its respective jurisdiction, (ii) has, and after
giving effect to the
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Acquisition pursuant to the terms of the Asset Purchase Agreement
will have, all requisite corporate power and authority to carry on
its business as described in the Offering Memorandum and to own,
lease and operate its properties, and (iii) is, and after giving
effect to the Acquisition pursuant to the terms of the Asset
Purchase Agreement will be, duly qualified and is in good standing
as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification except where the
failure to be so qualified would not have a Material Adverse Effect.
(2) All of the issued and outstanding shares of capital stock
of, or other securities evidencing equity ownership interests in,
the Company and each of its subsidiaries have been duly and validly
authorized and issued, and, except as otherwise disclosed in the
Offering Memorandum, all of the shares of capital stock of, or other
securities evidencing equity ownership interests in, each such
subsidiary are owned, directly or indirectly, by the Company. All
such shares of capital stock are fully paid and non-assessable and
have not been issued in violation of any preemptive or similar
rights and are owned free and clear of any Lien, except for Liens
granted pursuant to the New Credit Facility. There are not
currently, and will not be as a result of the Offering or the
consummation of the Acquisition pursuant to the terms of the Asset
Purchase Agreement, any outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other securities
evidencing equity ownership interests in, the Company or any of its
subsidiaries.
(3) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Operative Documents to which it is a party, and to consummate the
transactions contemplated thereby, including, without limitation,
the corporate power and authority to issue, sell and deliver the
Senior Subordinated Notes to the Initial Purchasers.
(4) The non-Delaware Subsidiary Guarantors have all necessary
corporate power and authority to enter into and perform their
obligations under the Operative Documents, and to issue, sell and
deliver the Note Guarantees to the Initial Purchasers.
(5) Neither the Company nor any of its non-Delaware Subsidiary
Guarantors is, and after giving effect to the Offering and the
Acquisition pursuant to the terms of the Asset Purchase Agreement
will be, (i) in violation of its charter or bylaws or partnership
agreement, as the case may be, (ii) in default in the performance of
any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument, in each case which is
material to the conduct of the business of the Company, to which the
Company is a party or by which it or any of the Company's
non-Delaware Subsidiary Guarantors or their respective property is
bound, or (iii) in violation of any local, state or federal law,
statute, ordinance, rule, regulation, requirement, judgment or court
decree (including, without limitation, environmental laws, statutes,
ordinances, rules, regulations, judgments or court decrees)
applicable to the Company, its non-Delaware Subsidiary Guarantors or
any of its assets or properties (whether owned or leased), other
than violations or defaults that could not reasonably be expected to
have a Material Adverse Effect. To the best knowledge of the
Company, there exists no condition that, with notice, the passage of
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time or otherwise, would constitute a default under any such
document or instrument, except for such defaults that could not
reasonably be expected to have a Material Adverse Effect.
(6) None of (i) the execution, delivery or performance by the
Company or the non-Delaware Subsidiary Guarantors of this Agreement
and the other Operative Documents, (ii) the performance by the
Company of the Asset Purchase Agreement and consummation of the
Acquisition pursuant to the terms of the Asset Purchase Agreement,
(iii) the issuance and sale of the Notes by the Company or the
issuance of the Note Guarantees by the non-Delaware Subsidiary
Guarantors and (iv) the consummation by the Company of the
transactions described in the Offering Memorandum under the caption
"Use of Proceeds," will conflict with or constitute a breach of any
of the terms or provisions of, or, after giving effect to the
Acquisition pursuant to the terms of the Asset Purchase Agreement,
will violate, conflict with or constitute a breach of any of the
terms or provisions of, or a default under, or result in the
imposition of a lien or encumbrance on any properties of the Company
or the non-Delaware Subsidiary Guarantors, as the case may be, or an
acceleration of indebtedness pursuant to, (1) the respective charter
or bylaws of the Company or the non-Delaware Subsidiary Guarantors,
as the case may be, (2) to the best of its knowledge, any bond,
debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or the non-Delaware
Subsidiary Guarantors, as the case may be, is a party or by which
any of their respective property is bound, or (3) any law or
administrative regulation applicable to the Company or the
non-Delaware Subsidiary Guarantors, as the case may be, or any of
their assets or properties, or any judgment, order or decree of any
court or governmental agency or authority entered in any proceeding
to which the Company or the non-Delaware Subsidiary Guarantors, as
the case may be, was or is now a party or to which any of their
respective properties may be subject except as would not have a
Material Adverse Effect. No consent, approval, authorization or
order of, or filing or registration with, any regulatory body,
administrative agency, or other governmental agency (except as
securities or Blue Sky laws of the various states may require) is
required for the execution, delivery and performance of the
Operative Documents and the valid issuance and sale of the
Securities. No consents or waivers from any person are required to
consummate the transactions contemplated by the Operative Documents
or the Offering Documents, other than such consents and waivers as
have been or will be obtained prior to the Closing Date or, in the
case of the Registration Rights Agreement and the transactions
contemplated thereby, will be obtained and made under the Act, the
Trust Indenture Act and state securities or Blue Sky laws and
regulations.
(7) This Agreement has been duly authorized and, when validly
executed by the Company and the non-Delaware Subsidiary Guarantors
and (assuming the due execution and delivery thereof by the Initial
Purchasers) is a legally valid and binding obligation of the Company
and the non-Delaware Subsidiary Guarantors, enforceable against each
in accordance with its terms, except as the enforceability thereof
may be (i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally, (ii) limited by general
principles of equity (whether considered in a proceeding at law or
in equity) and (iii) limited by securities laws prohibiting or
limiting the availability of, and public policy against,
indemnification or contribution.
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(8) The Company and the non-Delaware Subsidiary Guarantors
have duly authorized the Indenture, and when the Company and the
non-Delaware Subsidiary Guarantors have duly executed and delivered
the Indenture (assuming the due authorization, execution and
delivery thereof by the Trustee), the Indenture will be the legally
valid and binding obligation of each, enforceable against each in
accordance with its terms, except as the enforceability thereof may
be (i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at
law or in equity).
(9) The Company has duly authorized the Senior Subordinated
Notes and, when issued and authenticated in accordance with the
terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms hereof, will be the legally
valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect
which affect the enforcement of creditors' rights generally and (ii)
limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(10) The non-Delaware Subsidiary Guarantors have duly
authorized the Note Guarantees to be endorsed on the Senior
Subordinated Notes and, when the Senior Subordinated Notes are
issued and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms hereof, the Note Guarantees will be the
legally valid and binding obligations of the non-Delaware Subsidiary
Guarantors, enforceable against the non-Delaware Subsidiary
Guarantors in accordance with their terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect
which affect the enforcement of creditors' rights generally and (ii)
limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(11) The Company has duly authorized the New Senior
Subordinated Notes and, when issued and authenticated in accordance
with the terms of the Registered Exchange Offer and the Indenture,
the New Senior Subordinated Notes will be the legally valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforceability thereof
may be (i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at
law or in equity).
(12) The non-Delaware Subsidiary Guarantors have duly
authorized the Note Guarantees to be endorsed on the New Senior
Subordinated Notes and, when the New Senior Subordinated Notes are
issued and authenticated in accordance with the terms of the
Registered Exchange Offer and the Indenture, the Note Guarantees
will be the legally valid and binding obligations of the
non-Delaware Subsidiary Guarantors, enforceable against the
non-Delaware Subsidiary Guarantors in accordance with their terms,
except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors'
rights generally and (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity).
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(13) The Registration Rights Agreement has been duly
authorized and when validly executed by the Company and the
non-Delaware Subsidiary Guarantors will be (assuming the due
execution and delivery thereof by the Initial Purchasers) the
legally valid and binding obligation of each, enforceable against
each in accordance with its terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect
the enforcement of creditors' rights generally and (ii) limited by
general principles of equity (whether considered in a proceeding at
law or in equity).
(14) The Asset Purchase Agreement has been duly and validly
authorized by the Company and is a legally valid and binding
agreement of the Company, enforceable against it in accordance with
its terms, except as the enforceability thereof may be (i) subject
to applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors'
rights generally, (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity) and (iii)
limited by securities laws prohibiting or limiting the availability
of, and public policy against, indemnification or contribution.
(15) The New Credit Facility has been duly authorized and when
validly executed by the Company and the subsidiaries of the Company
that are obligors thereunder will be the legally valid and binding
obligation of each, enforceable against each in accordance with its
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors'
rights generally and (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(16) To the best knowledge of such counsel, there is and,
after giving effect to the Acquisition pursuant to the terms of the
Asset Purchase Agreement, will be (i) no action, suit, proceeding or
investigation before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending,
threatened, or, to the knowledge of the Company, contemplated to
which the Company or the non-Delaware Subsidiary Guarantors is or
may be a party or to which the business or property of the Company
or the non-Delaware Subsidiary Guarantors is or, after giving effect
to the Acquisition pursuant to the terms of the Asset Purchase
Agreement, may be subject, (ii) no statute, rule, regulation or
order that has been enacted, adopted or issued by any governmental
agency or, to the best knowledge of the Company, proposed by any
governmental body or (iii) no injunction, restraining order or order
of any nature issued by a federal or state court of competent
jurisdiction to which the Company or the non-Delaware Subsidiary
Guarantors is or may be subject that, in the case of clauses (i),
(ii) and (iii) above, (1) is required to be disclosed in the
Offering Memorandum and that is not so disclosed, (2) might have a
Material Adverse Effect or (3) would interfere with or adversely
affect the issuance of the Senior Subordinated Notes or the Note
Guarantees.
(17) To the best knowledge of such counsel, there are no
holders of any security of the Company or the non-Delaware
Subsidiary Guarantors who by reason of the execution by the Company
and the non-Delaware Subsidiary Guarantors of this Agreement or any
other Operative Document or the consummation of the transactions
contemplated hereby and thereby, have the right to request or demand
that the Company
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or the non-Delaware Subsidiary Guarantors register under the Act, or
analogous foreign laws and regulations, securities held by them.
In addition, such counsel shall state that it has participated in
conferences with representatives of the Company, representatives of the
Company's accountants, the Initial Purchasers' representatives and counsel
for the Initial Purchasers, at which conferences the contents of the
Offering Documents and related matters were discussed, and, although such
counsel has not independently verified and is not passing upon and assumes
no responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Documents, no facts have come to such
counsel's attention which led it to believe that the Offering Memorandum,
on the date thereof or on the date of such opinion, contained or contains
an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no view with respect to
the financial statements and data and related notes, the financial
statement schedules and other financial, statistical and accounting data
included in the Offering Documents).
(f) The Initial Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, of Latham & Watkins, in form and
substance satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received customary comfort
letters from (i) Ernst & Young LLP, independent public accountants for the
Company and (ii) KPMG Peat Marwick LLP, independent public accountants for
PFS, in each case, dated as of the date of this Agreement and as of the
Closing Date, in form and substance satisfactory to the Initial Purchaser
and counsel to the Initial Purchasers, with respect to the financial
statements and certain financial information contained in the Offering
Memorandum.
(h) The Company, the Subsidiary Guarantors and the Trustee shall
have entered into the Indenture and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(i) The Company, the Subsidiary Guarantors and the Initial
Purchasers shall have entered into the Registration Rights Agreement for
the benefit of the Initial Purchasers and the benefit of the other
purchasers, in the form attached hereto as Exhibit A, and the Initial
Purchasers shall have received counterparts, conformed as executed,
thereof.
(j) The Company shall have entered into the New Credit Facility (the
form and substance of which shall be acceptable to the Initial Purchasers)
and the Initial Purchasers shall have received counterparts, conformed as
executed thereof and of all other documents and agreements entered into in
connection therewith.
(k) The Company shall have fully performed or complied with any of
the agreements herein contained and required to be performed or complied
with by the Company on or prior to the Closing Date.
(l) Latham & Watkins shall have been furnished with such documents
and opinions, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 9 and in order to evidence the
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accuracy, completeness or satisfaction in all material respects of any of
the representations, warranties or conditions herein contained.
10. EFFECTIVE DATE OF AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective upon the execution and
delivery of this Agreement by the parties hereto. The Initial Purchasers
may terminate this Agreement at any time prior to the Closing Date by
written notice to the Company if any of the following has occurred: (i)
since the respective dates as of which information is given in the
Offering Documents, any adverse change or development involving a
prospective adverse change which would cause a Material Adverse Effect on
the Company, whether or not arising in the ordinary course of business,
which would, in the Initial Purchasers' reasonable judgment, make it
impracticable to market the Senior Subordinated Notes on the terms and in
the manner contemplated in the Offering Documents; (ii) any outbreak or
escalation of hostilities or other national or international calamity or
crisis or material change in economic conditions, if the effect of such
outbreak, escalation, calamity, crisis or change on the financial markets
of the United States or elsewhere would, in the Initial Purchasers'
reasonable judgment, be material and adverse and make it impracticable to
market the Senior Subordinated Notes on the terms and in the manner
contemplated in the Offering Documents; (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market System or limitation
on prices for securities on any such exchange or national market system;
(iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in the Initial Purchasers' reasonable opinion
causes or will cause a Material Adverse Effect; (v) the declaration of a
banking moratorium by either federal or New York State authorities; or
(vi) the taking of any action by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in the Initial
Purchasers' reasonable opinion has a material adverse effect on the
financial markets in the United States.
(b) If on the Closing Date, any of the Initial Purchasers shall fail
or refuse to purchase Senior Subordinated Notes which it has agreed to
purchase hereunder on such date, and the aggregate principal amount of
such Senior Subordinated Notes that such defaulting Initial Purchaser
agreed but failed or refused to purchase does not exceed 10% of the total
principal amount of such Senior Subordinated Notes that all of the Initial
Purchasers are obligated to purchase on such Closing Date, the
non-defaulting Initial Purchasers shall be obligated to purchase the
Senior Subordinated Notes that such defaulting Initial Purchasers agreed
but failed or refused to purchase on such date. If, on the Closing Date,
any of the Initial Purchasers shall fail or refuse to purchase Senior
Subordinated Notes in an aggregate principal amount that exceeds 10% of
such total principal amount of the Senior Subordinated Notes and
arrangements satisfactory to the other Initial Purchasers and the Company
for the purchase of such Senior Subordinated Notes are not made within 48
hours after such default, this Agreement shall terminate without liability
on the part of the non-defaulting Initial Purchasers or the Company,
except as otherwise provided in this Section 10. In any such case that
does not result in termination of this Agreement, the Initial Purchasers
or the Company may postpone the Closing Date for not longer than seven
days, in order that the required changes, if any, in the Offering
Memorandum or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve a defaulting Initial
Purchaser from liability in respect of any default by any such Initial
Purchaser under this Agreement.
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(c) If this Agreement shall be terminated by the Initial Purchasers
pursuant to clause (i) of paragraph (a) of this Section 10 or because of
the failure or refusal on the part of the Company to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company agrees
to reimburse the Initial Purchasers for all out-of-pocket expenses
(including, without limitation, the reasonable fees and disbursements of
counsel) reasonably incurred by the Initial Purchasers. Notwithstanding
any termination of this Agreement, the Company shall be liable for all
expenses which it has agreed to pay pursuant to Section 5(i) hereof.
11. AGREEMENT OF THE INITIAL PURCHASERS.
Each Initial Purchaser agrees, severally and not jointly, that, upon its
receipt of any written notice from the Company of the existence of any fact or
the happening of any event that requires the making of any additions to or
changes in any offering memorandum, registration statement or prospectus, or
amendment or supplement thereto, referred to in Section 5(d) hereof in order
that such document will not contain any untrue statement of a material fact or
omission to state any material fact necessary in order to make the statements
therein, in the light of the circumstances existing as of the date such document
was delivered, not misleading, such Initial Purchaser shall forthwith
discontinue disposition of the applicable Notes pursuant to such document until
(i) such Initial Purchaser receives from the Company copies of an amended or
supplemented document that the Company states in writing may be used by such
Initial Purchaser or (ii) such Initial Purchaser is advised in writing by the
Company that the use of such document may be resumed.
12. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this Agreement shall
be addressed as follows: (i) if to the Company, to AmeriServe Food
Distribution, Inc., Brookfield Lake Corporate Center, 17975 W. Sarah Lane,
Suite 100, Brookfield, Wisconsin 53045, Attention: President, (ii) if to
the Initial Purchasers, c/o Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention:
Syndicate Department, and (iii) if to the Initial Purchasers pursuant to
Section 11 hereof, (A) to Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention:
Syndicate Department & Compliance Department and (B) to BancAmerica
Securities, Inc., 231 South LaSalle Street, Chicago, Illinois 60697,
Attention: Syndicate Department & Compliance Department or in any case to
such other address as the person to be notified may have requested in
writing.
(b) The respective indemnities, contribution agreements,
representations, warranties and other statements set forth in or made
pursuant to this Agreement shall remain operative and in full force and
effect, and will survive delivery of and payment for the Senior
Subordinated Notes, regardless of (i) any investigation, or statement as
to the results thereof, made by or on behalf of any such person, (ii)
acceptance of the Senior Subordinated Notes and payment for them hereunder
and (iii) termination of this Agreement.
(c) Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Subsidiary Guarantors, the Initial Purchasers, any controlling persons
referred to herein and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall
acquire or have any
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right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Senior Subordinated
Notes from any of the Initial Purchasers merely because of such purchase.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
(e) This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument. Please confirm that
the foregoing correctly sets forth the agreement between the Company, the
Subsidiary Guarantors and the Initial Purchasers.
(f) In any provision hereunder purporting to give effect to the
Acquisition, such statements are made with respect to facts known as of
the date hereof (and not future events other than the consummation of the
Acquisition) and are meant only to account for consummation of the
Acquisition in accordance with the terms of the Asset Purchase Agreement.
(g) All representations and warranties hereunder made by the Company
or the Subsidiary Guarantors, and the opinions of Wachtell, Lipton, Rosen
& Katz and Cassem, Tierney, Adams, Gotch and Douglas are qualified by the
information contained in the Preliminary Offering Memorandum and the
Offering Memorandum.
[signature pages follow]
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Very truly yours,
AMERISERVE FOOD DISTRIBUTION, INC.
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
AMERISERV FOOD COMPANY
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
CHICAGO CONSOLIDATED CORPORATION
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
NORTHLAND TRANSPORTATION SERVICES, INC.
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
THE HARRY H. POST COMPANY
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
DELTA TRANSPORTATION, LTD.
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
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AMERISERVE TRANSPORTATION, INC.
By: /s/ Raymond E. Marshall
-------------------------------
Name: Raymond E. Marshall
Title: President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written
by Donaldson, Lufkin & Jenrette
Securities Corporation on behalf
of the Initial Purchasers.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Tyler T. Wolfram
-----------------------------
Name: Tyler T. Wolfram
Title: Vice President
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SCHEDULE I
Subsidiary Guarantors
AmeriServ Food Company
Chicago Consolidated Corporation
Northland Transportation Services, Inc.
The Harry H. Post Company
Delta Transportation, Ltd.
AmeriServe Transportation, Inc.
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SCHEDULE II
PRINCIPAL AMOUNT
OF SENIOR SUBORDINATED NOTES
INITIAL PURCHASERS TO BE PURCHASED
- ------------------ ---------------
Donaldson, Lufkin & Jenrette
Securities Corporation ......................................... $400,000,000
BancAmerica Securities, Inc. ..................................... $100,000,000
$500,000,000
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EXHIBIT A
Form of Registration Rights Agreement