Exhibit 5.9
Allens Arthur Robinson
10 July 2003 ABN 47 702 595 758
The Chifley Tower
Burns, Philp & Company Limited 2 Chifley Square
Level 23 Sydney NSW 2000
56 Pitt Street Australia
Sydney NSW 2000 Tel 61 2 9230 4000
Fax 61 2 9230 5333
Correspondence
GPO Box 50
Sydney NSW 2001
Australia
DX 105 Sydney
Dear Sirs
www.aar.com.au
BURNS, PHILP & COMPANY LIMITED
FORM F-4 - REGISTRATION STATEMENT
We have acted as special Australian counsel to the Guarantors and the Issuer 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 (THE COMMISSION)on 9 August 2002) (the REGISTRATION
STATEMENT).
Definitions in the Indenture or Registration Statement apply in this opinion
unless the context otherwise requires but ISSUER means Burns Philp Capital Pty
Limited, GUARANTOR means the companies listed in the Schedule to this letter,
GUARANTEE means the unconditional guarantees as to payment of principal and
interest of the Exchange Notes 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 copy of the Indenture (and reference to the Indenture in this
opinion includes the Supplemental Indenture defined below);
(b) certified copies of the constitution of each Guarantor (other than
of BPC1 Pty Limited, Burns Philp Australia Pty Limited and Burns
Philp Food Overseas Investments Pty Limited (the NEW GUARANTORS)) as
at 3 June 2002 and of the Issuer as at 21 June 2002;
(c) originals of the constitutions of each of the New Guarantors as at
incorporation;
(d) a certificate dated 10 July 2003 certifying that the copies of the
constitution of each Guarantor have not been amended or replaced and
continue in full force and effect since provided (in the case of the
Guarantors other than the New Guarantors) or
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since incorporation (in the case of the New Guarantors) and that
documents or authorisations relied on in this opinion continue in
full force and effect;
(e) a copy of the Supplemental Indenture dated 17 October 2002 between
the Issuer, the Bank of New York and the Guarantors (the
SUPPLEMENTAL INDENTURE);
(f) copies of resolutions or certified extracts of resolutions passed by
the Board of Directors of each Guarantor and the Issuer;
(g) executed powers of attorney in connection with the execution of the
Indenture and Supplemental Indenture by the Guarantors and the
Issuer;
(h) a certificate of Helen Golding dated 10 July 2003 certifying as to
certain factual matters as to the holding of board meetings of each
Guarantor and the Issuer and as to issues of commercial benefit; and
(i) a copy of the legal opinion of Dewey Ballantine LLP dated 10 July
2003 and filed with the Commission as Exhibit 5.1 to the
Registration Statement.
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 Exchange Notes and Guarantees noted on the Exchange Notes, will
be duly executed, issued, authenticated and delivered in compliance
with the terms of the Indenture.
(d) The Exchange Notes will be offered and sold in accordance with the
restrictions set forth in the prospectus included in the
Registration Statement.
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 the opinion of Dewey Ballantine LLP dated 10 July
2003 and filed with the Commission as Exhibit 5.1 to the
Registration Statement as to matters of New York law.
(c) 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.
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(d) We have relied, as to certain matters of fact, on certificates of
officers of the Guarantors and Issuer.
(e) The specific prior approval of the Reserve Bank of Australia or the
Minister for Foreign Affairs must be obtained for certain payments
or other dealings involving or connected in certain ways with Iraq,
certain Yugoslav entities or individuals, the Taliban, parties
identified with terrorism and UNITA, or associated parties, or other
parties to whom financial sanctions apply.
4. OPINION
Based on the assumptions and subject to the qualifications set out above
we are of the following opinion.
(a) Each of the Guarantors and the Issuer are incorporated in Australia.
(b) Each Guarantor has the corporate power to enter into and perform its
obligations under the Guarantee.
(c) The Issuer has the corporate power to enter into and perform its
obligations under the Exchange Notes.
(d) The execution, delivery and performance by each Guarantor of the
Guarantee, and by the Issuer of the Exchange Notes, will not violate
in any respect any existing provision of:
(i) any law of any Relevant Jurisdiction; or
(ii) its constitution.
(e) All authorisations under the laws of any Relevant Jurisdiction now
obtainable and required in connection with the execution, delivery,
performance or validity of the Guarantee and the Exchange Notes 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 Guarantees,
Exchange Notes or this opinion;
(c) for the purposes of filing with the Securities and Exchange
Commission of the United States of America as Exhibit 5 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
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(d) with our consent, which we will not withhold unreasonably.
Yours faithfully
/s/ Allens Arthur Robinson
Allens Arthur Robinson
SCHEDULE
GUARANTORS
BPC1 Pty Limited
Burns, Philp & Company Limited
Burns Philp Australia Pty Limited
Burns Philp Camellia Pty Limited
Burns Philp Food Holdings Pty Limited
Burns Philp Food Overseas Holdings Limited
Burns Philp Food Overseas Investments Pty Limited
Burns Philp Food Properties Pty Limited
Burns Philp Food Services Pty Limited
Burns Philp South America Pty Limited
Burns Philp Middle East Pty Limited
Burns Philp Overseas Holdings Limited
Burns Philp Pakistan Pty Limited
Burns Philp Technology and Development Pty Limited
Burns Philp Technology Pty Limited
Burns Philp Treasury (Australia) Limited
Indonesian Yeast Company Pty Limited
Mauri Fermentation Argentina Pty Limited
Mauri Fermentation Brazil Pty Limited
Mauri Fermentation Chile Pty Limited
Mauri Fermentation China Pty Limited
Mauri Fermentation India Pty Limited
Mauri Fermentation Indonesia Pty Limited
Mauri Fermentation Malaysia Pty Limited
Mauri Fermentation Philippines Pty Limited
Mauri Fermentation Vietnam Pty Limited
Mauri Yeast Australia Pty Limited