Exhibit 5.9
[ALLENS ARTHUR ROBINSON LETTERHEAD]
5 March 2004
Burns, Philp & Company Limited
Level 23
56 Pitt Street
Sydney NSW 2000
Dear Sirs
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 5 March 2004 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 since incorporation (in
the case of the New Guarantors) and that
Allens Arthur Robinson +
- --------------------------------------------------------------------------------
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 5 March 2004 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 on or
about 5 March 2004 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.
(e) As of the date of the searches referred to in paragraph 3(c), all
information required by law to be notified to the Australian
Securities and Investment Commission (the ASIC) in relation to each
Relevant Company (whether or not any period for notification had
expired) had been so notified, the records of the ASIC were, in
relation to each Relevant Company, accurate, complete and up-to-date
and those records were correctly recorded in the documents arising
from the searches referred to in paragraph 3(c).
(f) The Indenture is within the capacity and powers of, and has been
validly authorised, executed and delivered by and is binding on, the
parties to it other than each Relevant Company.
(g) Insofar as any obligation under the Indenture is to be performed in
any jurisdiction other than a Relevant Jurisdiction, its performance
will not be illegal or unenforceable under the law of that
jurisdiction.
Page 2
Allens Arthur Robinson +
- --------------------------------------------------------------------------------
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 on or
about 5 March 2004 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 March 2004.
(d) We have relied, as to certain matters of fact, on certificates of
officers of the Guarantors and Issuer.
(e) Insofar as our opinions in paragraph 4 relate to the performance of
the Indenture, those opinions are limited to the obligations
specifically arising under the Indenture (such as the issuance and
repayment of notes and giving of guarantees). They do not extend to
the performance of obligations under other documents referred to in
the Indenture.
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 and the Indenture.
(c) The Issuer has the corporate power to enter into and perform its
obligations under the Exchange Notes and the Indenture.
(d) The execution, delivery and performance by each Guarantor of the
Guarantee, by the Issuer of the Exchange Notes and by each Guarantor
and the Issuer of the Indenture will not violate in any respect any
existing provision of its constitution.
(e) The Indenture is validly executed by each Relevant Company in
accordance with the law of each Relevant Jurisdiction.
(f) All corporate authorisations 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:
1. potential investors in the Exchange Notes;
2. the holders of the Exchange Notes from time to time; and
3. Dewey Ballantine LLP, who may rely on this opinion (subject to the
assumptions. limitations, qualifications and exceptions contained in it)
for the purposes of its opinion filed
Page 3
Allens Arthur Robinson +
- --------------------------------------------------------------------------------
as an exhibit to the Registration Statement as to matters of the laws of
each Relevant Jurisdiction as if this opinion had been addressed to it.
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
(d) with our consent, which we will not withhold unreasonably.
Yours faithfully
/s/ Allens Arthur Robinson
IAN WALLACE
Partner
Page 4
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
Page 5