Exhibit 5.4
BLAKE, CASSELS & GRAYDON LLP
BARRISTERS & SOLICITORS | PATENT & TRADE-MARK AGENTS
Box 25, Commerce Court West
199 Bay Street
Toronto, Ontario, Canada
M5L 1A9
July 10, 2003
Deliveries: 28th Floor
Telephone: 416.863.2400
Facsimile: 416.863.2653
Burns Philp Food Limited www.blakes.com
31 rue Airlie
LaSalle, Quebec
H8R 1Z8
RE: BURNS PHILP FOOD LIMITED AS GUARANTOR OF BURNS PHILP CAPITAL PTY
LIMITED US$400 MILLION 9 3/4% SENIOR SUBORDINATED NOTES DUE 2012
(SECURITIES AND EXCHANGE COMMISSION FILE NO. 333-98141)
Ladies and Gentlemen:
We have acted as special Ontario counsel to Burns, Philp & Company Limited
(the "PARENT") in respect of its Canadian subsidiary, Burns Philp Food Limited,
a corporation incorporated pursuant to the laws of Canada (the "CORPORATION"),
in connection with the issuance by Burns Philp Capital Pty Limited, an
Australian corporation (the "ISSUER"), of 9 3/4% Senior Subordinated Notes due
2012 (the "NOTES"), in the aggregate principal amount of US$ 400 million, and
the guarantee of the Notes (the "GUARANTY") by the Corporation pursuant to the
Indenture (together with the Guaranty included therein, the "INDENTURE") dated
June 21, 2002 among the Issuer, the guarantors named therein (the "GUARANTORS")
and The Bank of New York, as trustee.
This opinion is rendered pursuant to Item 601(b)(5) of Regulation S-K of
the United States Securities and Exchange Commission (the "COMMISSION"), in
connection with the Exchange Offer Registration Statement filed with the
Commission pursuant to Section 1 of the Registration Rights Agreement dated June
21, 2002 (the "REGISTRATION RIGHTS AGREEMENT") among the Issuer, the Guarantors
and Credit Suisse First Boston Corporation and TD Securities (USA) Inc., as the
initial purchasers (the "INITIAL PURCHASERS").
The opinions expressed herein relate only to the laws of the Province of
Ontario and the federal laws of Canada applicable therein and no opinions are
expressed with respect to the laws of any other jurisdiction.
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BLAKE, CASSELS & GRAYDON LLP
BARRISTERS & SOLICITORS | PATENT & TRADE-MARK AGENTS
For the purpose of this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for purposes OF this opinion, including:
(i) the Indenture;
(ii) the purchase agreement dated June 14, 2002 among the Issuer, the
Guarantors and the Initial Purchasers (the "PURCHASE AGREEMENT");
(iii) the Registration Rights Agreement;
(iv) the Exchange Offer Registration Statement, referred to above,
containing a prospectus, which was filed with the U.S Securities and
Exchange Commission on August 9, 2002, which Exchange Offer
Registration Statement was amended and re-filed on October 18, 2002
and December 3, 2002 and has been further amended and is being
re-filed again; and
(v) the Power of Attorney, dated June 14, 2002, executed by the
Corporation (the "POWER OF ATTORNEY").
Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
We have also examined such statutes and regulations, public records,
corporate records, certificates of government officials (including, without
limitation, a certificate of compliance for the Corporation, issued by Industry
Canada on July 9, 2003) and such other similar documents, and we have made such
further investigations and searches and considered such questions of law, as we
have considered relevant and necessary as a basis for the opinions hereinafter
expressed.
We have relied, without independent verification, upon a certificate
(the "OFFICER'S CERTIFICATE") of an officer of the Corporation, dated July 10,
2003, as to factual matters contained in the Officer's Certificate.
ASSUMPTIONS
For the purposes of the opinions expressed herein, we have assumed:
(a) the genuineness of all signatures of all parties and the legal
capacity of all individuals;
(b) the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as
certified or photostatic or electronically transmitted copies or
facsimiles thereof and the authenticity of the
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BLAKE, CASSELS & GRAYDON LLP
BARRISTERS & SOLICITORS | PATENT & TRADE-MARK AGENTS
originals of such certified or photostatic or electronically
transmitted copies or facsimiles;
(c) the accuracy, currency and completeness of the indices and filing
systems maintained by the public offices and registries where we
have searched or enquired or have caused searches or enquiries to be
made and upon the information and advice provided to us by
appropriate government, regulatory or other like officials with
respect to those matters referred to herein;
(d) that each of the parties (other than the Corporation) to the
Indenture has all requisite corporate power and capacity to execute
and deliver the Indenture and to exercise its rights and perform its
obligations thereunder, and has taken all necessary corporate action
to authorize the execution and delivery of the Indenture and the
exercise of its rights and the performance of its obligations
thereunder; and
(e) that each of the parties (other than the Corporation) to the
Indenture has duly executed and delivered the Indenture.
With respect to the opinion given in paragraph 2 below, we have
relied on the opinion of Allens Arthur Robinson attached as Schedule A
hereto to confirm that: (i) Burns Philp Food Overseas Holdings Limited had
all requisite corporate power and capacity to execute and deliver the
Unanimous Shareholder Declaration (the "DECLARATION"), dated June 13,
2002, and the Resolutions of the sole shareholder of the Corporation (the
"RESOLUTIONS"), dated June 14, 2002, which Declaration and Resolutions are
attached as Schedules to the Officer's Certificate, and to exercise its
rights and perform its obligations thereunder; (ii) it took all necessary
corporate action to authorize the execution and delivery of the
Declaration and the Resolutions and the exercise of its rights and the
performance of its obligations thereunder; and (iii) that it duly executed
and delivered the Declaration and the Resolutions. To the extent that the
opinion of Allens Arthur Robinson is based upon any assumptions or is made
subject to any qualifications, our reliance on such opinion is based on
such assumptions and subject to such qualifications.
We have relied on the opinion of Dewey Ballantine LLP attached as
Schedule B hereto to confirm that the law of the State of California
imposes no formalities upon the execution and delivery, in California, of
the Power of Attorney, other than as set forth in such opinion. To the
extent that the opinion of Dewey Ballantine LLP is based upon any
assumptions or is made subject to any qualifications, our reliance on such
opinion is based on such assumptions and subject to such qualifications
other than those that pertain to the laws of Canada.
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BLAKE, CASSELS & GRAYDON LLP
BARRISTERS & SOLICITORS | PATENT & TRADE-MARK AGENTS
Based on the foregoing and subject to the qualification set forth
below, we are of the opinion that:
1. Relying solely on the certificate of compliance referred to above,
as well as to factual matters contained in the Officer's
Certificate, the Corporation is a subsisting corporation under the
federal laws of Canada.
2. The Corporation has taken all necessary corporate action to
authorize the execution and delivery by it of the Indenture and the
performance of its obligations thereunder. The Indenture has been
duly executed by the Corporation as a matter of corporate law in
compliance with the laws of its jurisdiction of incorporation,
namely, the federal laws of Canada, and with the provisions of its
articles and by-laws and the Declaration and Resolutions.
3. The execution and delivery by the Corporation of, and performance by
the Corporation of its obligations under, the Indenture, and
compliance by the Corporation with all of the provisions thereof,
will not result in a breach of, or constitute a default under (a)
any statute or regulation of the Province of Ontario or any federal
statute or regulation of Canada applicable therein which is
applicable to corporations generally, or (b) its articles or
by-laws.
QUALIFICATIONS
The foregoing opinions are subject to the qualification that no
opinion is expressed regarding any taxes which may be imposed upon or exigible
in respect of any transactions contemplated by the Indenture.
CONSENT
We hereby consent to the filing of this opinion as Exhibit 5.4 to
the Exchange Offer Registration Statement and to the reference to Blake, Cassels
& Graydon LLP under the caption "Legal Matters" in the prospectus included in
the Exchange Offer Registration Statement. In giving this consent, we do not
thereby admit that we are included within the meaning of persons whose consent
is required under Section 7 of the US. SECURITIES ACT OF 1933, as amended, or
the rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
* * *
This opinion is strictly limited to the matters stated in it and
does not apply by implication to other matters.
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BLAKE, CASSELS & GRAYDON LLP
BARRISTERS & SOLICITORS | PATENT & TRADE-MARK AGENTS
This opinion is given in respect of the laws of the Province of
Ontario and the federal laws applicable therein which are in effect at 9:00 a.m.
(Toronto time) on the date of this opinion.
Yours truly,
/s/ Blake, Cassels & Graydon LLP
ATTACHMENTS
Schedule A - Opinion of Allens Arthur Robinson
Schedule B - Opinion of Dewey Ballantine LLP
SCHEDULE A
Attached.
Allens Arthur Robinson
10 July 2003 ABN 47 702 595 758
Blake, Cassels & Graydon LLP The Chifley Tower
Box 25, Commerce Court West 2 Chifley Square
199 Bay Street Australia
Toronto, ON M5L 1A9 Tel 61 2 9230 4000
Canada Fax 61 2 9230 5333
CORRESPONDENCE
GPO Box 50
Sydney NSW 2001
Australia
DX 105 Sydney
www.aar.com.au
Dear Sirs
BURNS PHILP FOOD OVERSEAS HOLDINGS LIMITED
FORM F-4 - REGISTRATION STATEMENT SUPPORT OPINION
We have acted as special Australian counsel to Burns Philp Food Overseas
Holdings Limited in connection with certain matters relating to the Form F-4
- -Registration Statement for the 9 3/4% Series B Senior Subordinated Notes due
2012 (File Number 333-98141, initially filed with the Securities and Exchange
Commission of the United States of America on 9 August 2002) (the REGISTRATION
STATEMENT).
Definitions in the Indenture or Registration Statement apply in this opinion
unless the context otherwise requires but RELEVANT COMPANY means Burns Philp
Food Overseas Holdings Limited and RELEVANT JURISDICTION means the Commonwealth
of Australia, New South Wales or the Australian Capital Territory.
No assumption or qualification in this opinion limits any other assumption or
qualification in it.
1. DOCUMENTS
We have examined the following documents:
(a) a certified copy of the constitution of the Relevant Company as at 3
June 2002;
(b) a certificate dated 10 July 2003 certifying that the copy of the
constitution of the Relevant Company has not been amended or
replaced and continues in full force and effect since 3 June 2002
and that documents or authorisations relied on in this opinion
continue in full force and effect;
(c) a copy of the signed resolutions passed by the Board of Directors
dated 11 June 2002 of the Relevant Company (the BOARD RESOLUTIONS);
(d) a copy of the signed Unanimous Shareholders Declaration dated 13
June 2002 (the DECLARATION);
Allens Arthur Robinson
(e) a copy of the signed Resolutions of the Sole Shareholder of Burns
Philp Food Limited dated 14 June 2002 (the RESOLUTIONS);and
(f) a certificate of Helen Golding dated 10 June 2003 certifying as to
certain factual matters and as to the holding of Board Meetings of
the Relevant Company and as to issues of commercial benefit.
We have conducted such searches and investigations as are necessary to
render the opinions given.
2. ASSUMPTIONS
For the purposes of giving this opinion we have assumed the following.
(a) The authenticity of all seals and signatures.
(b) The completeness, and the conformity to original instruments, of all
copies submitted to us.
(c) The Resolutions and Declaration constitute legal, valid and binding
obligations of the Relevant Company under the laws of Canada
enforceable in competent courts of that jurisdiction.
3. QUALIFICATIONS
Our opinion is subject to the following qualifications.
(a) We express no opinion as to any laws other than the laws of each
Relevant Jurisdiction as in force at the date of this opinion.
(b) We have relied on a search of public records of the Australian
Securities and Investments Commission on 3 July 2003. We note that
records disclosed by such search may not be complete or up to date.
(c) We have relied, as to certain matters of fact, on certificates of
officers of the Relevant Company.
4. OPINION
Based on the assumptions and subject to the qualifications set out above
we are of the following opinion.
(a) The Relevant Company is incorporated in Australia.
(b) The Relevant Company has the corporate power to enter into and
perform its obligations under the Resolutions and the Declaration.
(c) The execution, delivery and performance by the Relevant Company of
the Declaration and Resolutions, will not violate in any respect any
existing provision of:
(i) any law of any Relevant Jurisdiction; or
(ii) its constitution.
Allens Arthur Robinson
(d) The Resolutions and Declaration have been duly authorised, executed
and delivered.
(e) All authorisations under the laws of any Relevant Jurisdiction now
obtainable and required in connection with the execution, delivery,
performance, validity or enforceability of the Declarations and
Resolutions have been obtained or effected and are in full force and
effect.
This opinion is addressed to you for your benefit, for the benefit of
potential investors in the Exchange Notes and for the benefit of the
holders of the Exchange Notes from time to time. It is not to be relied on
by any other person or for any other purpose. It is not to be quoted or
referred to in any public document or filed with or disclosed to any
government agency or other person other than:
(a) to the extent required by law or an official directive;
(b) in connection with any litigation relating to the this opinion;
(c) being referred to in, and attached as a schedule to, your opinion
for the purposes of filing your opinion with the Securities and
Exchange Commission of the United States of America as an Exhibit to
the Registration Statement and of the reference made to this firm
under the caption "Legal Matters" in the Registration Statement. In
giving this consent, we do not admit that we are included within the
category of persons whose consent is required under Section 7 of the
Securities Act of 1933 of the United States of America, or the rules
and regulations of the Securities and Exchange Commission; or
(d) with our consent, which we will not withhold unreasonably.
Yours faithfully
/s/ Allens Arthur Robinson
SCHEDULE B
Attached
DEWEY BALLANTINE LLP
1301 AVENUE OF THE AMERICAS
NEW YORK 10019-6092
TEL 212 259-8000 FAX 212 259-6333
July 10, 2003
Blake, Cassels & Graydon LLP
Box 25, Commerce Court West
199 Bay Street
Toronto, Ontario, Canada
M5L 1A9
Burns Philp Food Limited
Ladies and Gentlemen:
We have acted as special U.S. counsel to Burns, Philp & Company Limited
(the "Parent"), Burns Philp Inc., a Delaware corporation ("BPI"), Burns Philp
Food Inc., a California corporation ("BPFI"), Tone Brothers, Inc., an Iowa
corporation ("TBI"), and Burns Philp Capital Pty Limited, an Australian
corporation (the "Issuer"), in connection with the Indenture, dated as of June
21, 2002, among Burns Philp Capital Pty Limited, as issuer, the Parent, the
Subsidiary Guarantors (as defined therein) party thereto, and The Bank of New
York, as trustee (the "2002 Indenture"). Capitalized terms used in this letter
without definition have the meanings ascribed to them in the 2002 Indenture or
in the opinion letter of your firm referred to in the following paragraph.
This letter is delivered to you, at the request of Parent, in connection
with your delivery of a legal opinion, dated today's date, as special Ontario
counsel to Parent in respect of its Canadian subsidiary, Burns Philp Food
Limited, rendered pursuant to Item 601(b)(5) of the United States Securities and
Exchange Commission ("SEC") in connection with the Exchange Offer Registration
Statement, as referred to in your opinion, filed with the SEC pursuant to
Section 1 of the Registration Rights Agreement dated June 21, 2002 among the
Issuer, the Guarantors, and Credit Suisse First Boston Corporation and TD
Securities (USA) Inc., as the initial purchasers.
We have relied, for purposes of the opinion expressed herein, upon a
certificate of an officer of Burns Philp Food Limited to the effect that the
Power of Attorney was executed and delivered in the State of California.
Based upon the foregoing and our examination of such questions of law as
we have deemed necessary or appropriate, and subject to the limitations and
qualifications set forth below, it is our opinion that the law of the State of
California did not on the date(s) the Power of Attorney was executed and
delivered by Burns Philp Food Limited, impose, nor have there been any
subsequent changes which would have the effect of retroactively imposing, any
formalities upon the execution and delivery, in California, of
NEW YORK WASHINGTON LOS ANGELES LONDON HONG KONG BUDAPEST PRAGUE WARSAW
the Power of Attorney, other than the signing of the Power of Attorney on behalf
of Burns Philp Food Limited by an officer duly authorized to do so and physical
delivery of the Power of Attorney, together with such other formalities as may
be required under applicable Canadian law for the execution and delivery by
Burns Philp Food Limited of the Power of Attorney.
Our opinions are limited to the law of the State of California. We express
no opinion with respect to the enforceability of the Power of Attorney under
California law. This letter speaks only as of its date. We undertake no
obligation to advise you or any third party of changes of law or fact that occur
after the date of this letter, even though the change may affect the legal
analysis or a legal conclusion or other matters in this letter.
This letter is furnished solely for your benefit in connection with your
legal opinion being delivered to the SEC in connection with the Exchange Offer
Registration Statement. You may not rely upon our opinion set forth in this
letter for any other purpose or in any other context. Our opinion set forth in
this letter may not be furnished to or relied upon by any other person, firm,
corporation, partnership or other entity without our prior written consent.
Very truly yours,
/s/ Dewey Ballantine LLP
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