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Exhibit 5.1
[LETTERHEAD OF WACHTELL, LIPTON, ROSEN & KATZ]
October 17, 1997
AmeriServe Food Distribution, Inc.
AmeriServ Food Company
Chicago Consolidated Corporation
Delta Transportation, Ltd.
Northland Transportation Services, Inc.
The Harry H. Post Company
17975 West Sarah Lane, Suite 100
Brookfield, Wisconsin 53045
AmeriServe Transportation, Inc.
14841 Dallas Parkway
Dallas, Texas 75240
Ladies and Gentlemen:
We have acted as special counsel to AmeriServe Food Distribution,
Inc., a Nebraska corporation (the "Company"), in connection with the
preparation of the Company's Registration Statement on Form S-4 (the
"Registration Statement"), under the Securities Act of 1933, as amended (the
"Securities Act"), first filed with the Securities and Exchange Commission on
August 8, 1997, and as amended on October 17, 1997, relating to an offer to
exchange (the "Exchange Offer") the Company's 8 7/8% New Senior Notes due
2006 (the "New Notes") for an equal principal amount of the Company's
outstanding 8 7/8 % Senior Notes due 2006 (the "Notes"). The New Notes will
be fully and unconditionally guaranteed on a senior unsecured basis (the "New
Note Guarantees") by, and will be joint and several obligations of, AmeriServ
Food Company, a Delaware corporation and a subsidiary of the Company, Chicago
Consolidated Corporation, an Illinois corporation and a subsidiary of the
Company, Northland Transportation Services, Inc., a Nebraska corporation and
a subsidiary of the Company, The Harry H. Post Company, a Colorado
corporation and a subsidiary of the Company, Delta Transportation, Ltd., a
Wisconsin corporation and a subsidiary of the Company and AmeriServe
Transportation, Inc., a Nebraska corporation and a subsidiary of the Company
(the above being referred to herein as the "Subsidiary Guarantors").
The Notes were issued, and the New Notes will be issued, under an
Indenture (the "Indenture") dated as of October 15, 1997, among the Company,
the Subsidiary Guarantors, and State Street Bank and Trust Company, as
Trustee (the "Trustee").
In connection with this opinion, we have examined the
Registration Statement, the Indenture, (included as Exhibit 4.1 to the
Registration Statement), the form of the New Notes (included as Exhibit 4.2
to the Registration Statement), and originals or copies certified or
otherwise identified to our satisfaction of such other documents, corporate
records and other instruments as we have deemed necessary or appropriate for
the purposes of the opinion set forth herein.
We have, with your approval, assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
the conformity to authentic original documents of all documents submitted to
us as certified, facsimile, conformed, electronic, or photostatic copies and
the authenticity of the originals of such copies, and we have assumed the
legal capacity of all individuals executing such documents. In addition, as
to all questions of fact material to this opinion that have not been
independently established, we have relied upon certificates or comparable
documents, and oral and written statements and representations of, officers
and representatives of the Company and the Subsidiary Guarantors. We have
not
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AmeriServe Food Distribution, Inc.
October 17, 1997
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independently verified such information and assumptions. Capitalized
terms used and not defined herein shall have the meanings ascribed to such
terms in the Purchase Agreement (included as Exhibit 2.1 to the Registration
Statement).
Based upon and subject to the foregoing, assuming that the
Indenture has been duly authorized, executed and delivered by, and represents
the valid and binding obligation of, the Trustee, and when the Registration
Statement, including any amendment thereto, shall have become effective under
the Securities Act and the Indenture shall have been duly qualified under the
Trust Indenture Act, and subject to the limitations and qualifications set
forth herein, we are of the opinion that:
(1) the New Notes, when duly executed and delivered by or on behalf
of the Company in the form contemplated by the Indenture upon the
terms set forth in the Exchange Offer and authenticated by the
Trustee or an authenticating agent appointed by the Trustee in
accordance with the terms of the Indenture, will constitute the
legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms; and
(2) the New Note Guarantees, when duly executed and delivered by or
on behalf of the Subsidiary Guarantors in the form contemplated
by the Indenture upon the terms set forth in the Exchange Offer,
will constitute the legal, valid and binding obligations of the
Subsidiary Guarantors, enforceable against the Subsidiary
Guarantors in accordance with their terms;
subject, in each case, to (a) bankruptcy, insolvency, moratorium,
reorganization and other laws of general applicability, relating to or
affecting creditors' rights from time to time in effect, (b) application of
general principles of equity (regardless of whether considered in proceedings
in equity or at law) and the discretion of the court before which any
proceeding therefor may be brought, (c) standards of commercial
reasonableness and the implied covenant of good faith, and (d) public policy.
In addition, the opinions expressed herein are subject to the
following assumptions, exceptions, limitations, qualifications and comments:
A. We express no opinion as to the effect of the laws of any
jurisdiction other than the laws of the State of New York and
the laws of the United States, wherein any holder of the New
Notes may be located which limit rates of interest that may be
charged or collected by such holder.
B. We express no opinion with respect to the lawfulness or
enforceability of:
(i) provisions relating to delay or omission of enforcement of
rights or remedies, waivers of defenses, or waivers of
benefits of any usury,
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appraisal, valuation, stay, extension, moratorium, redemption,
statutes of limitation or other non-waivable benefits bestowed
by operation of law;
(ii) exculpation provisions, provisions relating to releases of
unmatured claims, provisions purporting to waive immaterial
rights, severability provisions and provisions similar in
substance and nature to those described in the foregoing
clause (i) and this clause (ii), insofar as any of the
foregoing are contained in the Indenture; and
(iii) indemnification or contribution provisions to the extent
they purport to relate to liabilities from or based upon
negligence or any violation of, or relate to rights of
contribution or indemnification that are violative of, any
law, rule or regulation of the public policy underlying any
law, rule or regulation (including any federal, state or
foreign securities law, rule or regulation).
C. Certain of the remedial provisions and waivers with respect to
the New Note Guarantees contained in the Indenture may be
unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the New Note
Guarantees, taken as a whole, and the New Note Guarantees, taken
as a whole, together with the laws of the State of New York,
contain adequate provision for the practical realization of the
benefits of the guarantees created thereby.
D. We express no opinion as to the effect on the Indenture, the New
Notes, the New Note Guarantees or on the opinions expressed
herein, of any fraudulent conveyance laws. In addition, we
express no opinion as to the effects of either (i) Section 548 of
Title 11 of the United States Code or (ii) Article 10 of the New
York Debtor and Creditor Law, relating to fraudulent transfers,
on any obligation under the New Note Guarantees of the Subsidiary
Guarantors that are direct or indirect subsidiaries of the
Company.
We are admitted to practice only in the State of New York and
express no opinion as to the effect on the matters covered by this opinion of
the laws of any jurisdiction other than the laws of the State of New York
and the laws of the United States.
This opinion is rendered to you and is solely for your benefit in
connection with the Exchange Offer. This opinion may not be used or relied
upon by you for any other purpose, or furnished to, quoted to, or relied upon
by any other person, firm or corporation for any purpose, without our prior
written consent, except that we hereby consent (i) to the use of this opinion
as an Exhibit to the Registration Statement and to the reference to our firm
under the caption "Legal Matters" in the prospectus that is a part of the
Registration Statement and (ii) to your filing copies of this opinion as an
Exhibit to the Registration Statement with agencies of such states
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as you deem necessary in the course of complying with the laws of such states
regarding the Exchange Offer. In giving any such consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz