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[LETTERHEAD OF LATHAM & WATKINS]
Exhibit 5.1
May 3, 2001
Fleming Companies, Inc.
1945 Lakepointe Drive
Lewisville, Texas 75057
Re: $355,000,000 Aggregate Principal
Amount of 10 1/8% Senior Notes due 2008
Ladies and Gentlemen:
In connection with the registration of $355,000,000 aggregate
principal amount of 10 1/8% Senior Notes due 2008 (the "Securities") by Fleming
Companies, Inc., an Oklahoma corporation (the "Company"), and the guarantees of
the Securities (the "Guarantees") by the Company's wholly-owned domestic
subsidiaries listed on Schedule A hereto (the "Guarantors"), under the
Securities Act of 1933, as amended, on Form S-4 to be filed with the Securities
and Exchange Commission on May 3, 2001 (the "Registration Statement"), you have
requested our opinion with respect to the matters set forth below. The
Securities and the Guarantees will be issued pursuant to an indenture dated as
of March 15, 2001 (the "Indenture") by and among the Company, the Guarantors and
Bankers Trust Company, as trustee (the "Trustee"). The Securities and the
Guarantees will be issued in exchange for the Company's outstanding 10 1/8%
Senior Notes due 2008 on the terms set forth in the prospectus contained in the
Registration Statement and the Letter of Transmittal to be filed as an exhibit
thereto. The Indenture, the Securities and the Guarantees are sometimes referred
to herein collectively as the "Operative Documents." Capitalized terms used
herein without definition have the meanings assigned to them in the Indenture.
In our capacity as your special counsel in connection with
such registration, we are familiar with the proceedings taken and proposed to be
taken by the Company and the Guarantors in connection with the authorization and
issuance of the Securities and the Guarantees, respectively. In addition, we
have made such legal and factual examinations and inquiries, including an
examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
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Fleming Companies, Inc.
May 3, 2001
Page 2
We are opining herein as to the effect on the subject
transaction only of the internal laws of the State of New York, and, solely with
respect to paragraph 2, the internal laws of the State of California, and we
express no opinion with respect to the applicability thereto, or the effect
thereon, of the laws of any other jurisdiction or as to any matters of municipal
law or the laws of any local agencies within any state. Various matters
concerning the Company and the Guarantors are addressed in the opinion of McAfee
& Taft, which has been separately provided to you, and we express no opinion
with respect to those matters.
Subject to the foregoing and the other matters set forth
herein, it is our opinion that as of the date hereof:
1. Assuming due authorization of the Securities by the
Company, the Securities, when executed, authenticated and delivered by or on
behalf of the Company against payment therefor in accordance with the terms of
the Indenture, will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
2. The Guarantee to be executed and delivered by Richmar
Foods, Inc., a California corporation ("Richmar") has been duly authorized by
all necessary corporate action of Richmar.
3. Assuming due authorization of each of the Guarantees by
each of the Guarantors except Richmar, each of the Guarantees, when executed in
accordance with the terms of the Indenture and upon due execution,
authentication and delivery of the Securities and upon payment therefor, will be
the legally valid and binding obligation of the respective Guarantor,
enforceable against such Guarantor in accordance with its terms.
The opinions rendered in paragraphs 1 and 3 relating to the
enforceability of the Securities and the Guarantees are subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting the rights or remedies of creditors, (ii) the
effect of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law, and the discretion of the court before which any
proceeding therefor may be brought; (iii) the unenforceability under certain
circumstances under law or court decisions of provisions providing for the
indemnification of or contribution to a party with respect to a liability where
such indemnification or contribution is contrary to public policy; (iv) we
express no opinion concerning the enforceability of the waiver of rights or
defenses contained in Section 4.06 of the Indenture; (v) we express no opinion
concerning the enforceability of the Company's obligation to offer to repurchase
the Securities upon the occurrence of a Change of Control (as such term is
defined in the Indenture) pursuant to Section 4.14 of the Indenture; and (vi) we
express no opinion with respect to whether acceleration of the Securities may
affect the collectibility of that portion of the stated principal amount thereof
which might be determined to constitute unearned interest thereon.
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Fleming Companies, Inc.
May 3, 2001
Page 3
We have not been requested to express, and with your knowledge
and consent, do not render any opinion as to the applicability to the
obligations of the Company under the Indenture and the Securities or the
Guarantors under the Indenture or the Guarantees of Section 548 of the United
States Bankruptcy Code or applicable state law (including, without limitation,
Article 10 of the New York Debtor and Creditor Law) relating to fraudulent
transfers and obligations.
To the extent that the obligations of the Company and the
Guarantors under the Operative Documents to which each is a party may be
dependent upon such matters, we have assumed for purposes of this opinion that:
(i) the Company, each of the Guarantors (except Richmar) and the Trustee (a) is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization, (b) has the requisite organizational and legal
power and authority to perform its obligations under each of the Operative
Documents to which it is a party, (c) has duly authorized, executed and
delivered each such Operative Document, and (d) is duly qualified to engage in
the activities contemplated by each such Operative Document; (ii) the Indenture
constitutes the legally valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms; and (iii) the Trustee is in
compliance, generally and with respect to acting as a trustee under the
Indenture, with all applicable laws and regulations.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm contained under the
heading "Legal Matters" in the prospectus contained therein.
Very truly yours,
/s/ LATHAM & WATKINS
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Schedule A
GUARANTORS
Guarantors State of Jurisdiction of Formation
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ABCO Food Group, Inc. Nevada
ABCO Markets, Inc. Arizona
ABCO Realty Corp. Arizona
AG, L.L.C. Oklahoma
American Logistics Group, Inc. Delaware
Baker's Food Group, Inc. Nevada
Dunigan Fuels, Inc. Texas
FAVAR CONCEPTS, LTD. Delaware
Fleming Food Management Co., L.L.C. Oklahoma
Fleming Foods of Texas, L.P. Oklahoma
Fleming International Ltd. Oklahoma
Fleming Supermarkets of Florida, Inc. Florida
Fleming Transportation Service, Inc. Oklahoma
Fleming Wholesale, Inc. Nevada
FuelServ, Inc. Delaware
Gateway Insurance Agency, Inc. Wisconsin
LAS, Inc. Oklahoma
Piggly Wiggly Company Oklahoma
Progressive Realty, Inc. Oklahoma
Rainbow Food Group, Inc. Nevada
Retail Investments, Inc. Nevada
Retail Supermarkets, Inc. Texas
RFS Marketing Services, Inc. Oklahoma
Richmar Foods, Inc. California
Scrivner Transportation, Inc. Oklahoma