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Exhibit 5
January 30, 1998
Board of Directors
Dairy Mart Convenience Stores, Inc.
210 Broadway East
Cuyahoga Falls, Ohio 44222
Gentlemen:
We have acted as counsel to you in connection with the registration by
Dairy Mart Convenience Stores, Inc., a Delaware corporation (the "Company") of
$13,500,000 aggregate principal amount of 10 1/4% Senior Subordinated Notes Due
2004, Series B (the "Series B notes"), pursuant to the terms of an amended and
restated indenture (the "Indenture") dated as of December 1, 1995, by and among
the Company, First Bank National Association, as trustee (the "Trustee") and
certain direct and indirect subsidiaries of the Company referred to below. We
have also acted as counsel to certain direct and indirect subsidiary
corporations of the Company set forth on Exhibit A hereto which guaranteed the
obligations of the Company under the Indenture (each such subsidiary corporation
being referred to individually as a "Guarantor" and collectively as the
"Guarantors," and the guarantee of each Guarantor being referred to as a
"Guarantee" and collectively as the "Guarantees"). In connection with the
registration of the Notes and the Guarantees, the Company and the Guarantors
have filed a registration statement on Forms S-1 and S-2 (together will all
amendments thereto, the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended.
As counsel to the Company and each of the Guarantors, and for the purposes
hereof, we have reviewed the following: (i) the amended and restated certificate
of incorporation of the Company, and the certificates of incorporation of each
of the Guarantors, in each case as amended as currently in effect; (ii) the by-
laws of the Company and each of the Guarantors, in each case as amended and as
currently in effect; (iii) the minutes of the meetings of the respective Boards
of Directors and any authorized committees of each of the Company and the
Guarantors relating to the Company's issuance of the Notes and the Guarantees of
the Guarantors; (iv) the Indenture; and (v) such other documents as we have
deemed necessary in order to express the opinions contained herein.
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
In our examinations, we have assumed the genuineness of all signatures, the
due execution of the Series B Notes, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies. The opinions
contained herein are also subject to the assumptions and limitations set forth
in Exhibit B hereto.
Based upon the foregoing, it is our opinion that:
The Notes have been duly and validly authorized and issued as binding
obligations of the Company, and the Guarantees have been duly and validly
authorized and issued as binding obligations of the Guarantors, except that
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance and similar laws affecting the enforcement of the rights of creditors
generally and except that enforcement of remedies and rights is subject to
general principles of equity.
The opinions expressed herein are limited to the laws of the United States
of America, the State of New York and the General Corporation Law of the State
of Delaware. We express no opinion as to the effect or applicability of the laws
of any other jurisdiction.
We hereby consent to the inclusion of this opinion as Exhibit 5 to the
Registration Statement and to the use of our name in the prospectus under the
caption "Certain Legal Matters."
Very truly yours,
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
RMC/mag
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EXHIBIT A
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GUARANTORS
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Dairy Mart East, Inc. Dairy Mart Farms, Inc.
Dairy Mart, Inc. CONNA Corporation
The Lawson Company D.M. Insurance Limited
LMC, Inc. SNG of Southern Minnesota, Inc.
The Lawson Milk Company Golden Stores, Inc.
Lakeside Wholesale, Inc. Quick Shops, Inc.
Open Pantry Properties, Inc. Remote Services, Inc.
Convenient Industries of
America, Inc. Oscar Ewing, Inc.
Convenient Gasoline, Inc. CIA Food Marts, Inc.
Food Merchandisers, Dairy Mart Convenience Stores
Incorporated of Ohio, Inc.
EXHIBIT B
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This opinion is further subject to the following assumptions and
limitations:
(a) There has not been any mutual mistake of fact or misunderstanding,
fraud, duress or undue influence.
(b) The constitutionality or validity of a relevant statute, rule,
regulation or agency action is not in issue unless a reported decision
has specifically addressed but not resolved, or has established, its
unconstitutionality or invalidity.
(c) All parties to the transaction will act in accordance with, and will
refrain from taking any action that is forbidden by, the terms and
conditions of the Notes.
We express no opinion as to the enforceability of any provision (i)
restricting access to legal or equitable remedies and (ii) providing for
non-judicial foreclosure or self-help remedies.
As used herein, "general principles of equity" include, without limitation,
principles:
(a) governing the availability of specific performance, injunctive relief
or other equitable remedies, which generally place the award of such
remedies, subject to certain guidelines, in the discretion of the
court to which application for such relief is made;
(b) affording equitable defenses (e.g., waiver, laches and estoppel)
against a party seeking enforcement;
(c) requiring good faith and fair dealing in the performance and
enforcement of a contract by the party seeking its enforcement;
(d) requiring reasonableness in the performance and enforcement of an
agreement by the party seeking enforcement of the contract;
(e) requiring consideration of the materiality of (i) a breach and (ii)
the consequences of the breach to the party seeking enforcement;
(f) requiring consideration of the impracticability or impossibility of
performance at the time of attempted enforcement; and
(g) affording defenses based upon the unconscionability of the enforcing
party's conduct after the parties have entered into the contract.
The opinions set forth herein do not address any of the following legal
issues:
(a) The statutes and ordinances, administrative decisions, and the rules
and regulations of counties, towns, municipalities and special
political subdivisions, and judicial decisions to the extent that they
deal with any of the foregoing;
(b) fraudulent transfer and fraudulent conveyance laws;
(c) Federal and state environmental laws and regulations;
(d) Federal and state land use and subdivision laws and regulations; and
(e) Federal patent, copyright and trademark, state trademark, and other
Federal and state intellectual property laws and regulations.