Exhibit 5.10
[URIA & MENENDEZ LETTERHEAD]
BURNS PHILP FOOD, S.A. (SOCIEDAD UNIPERSONAL)
Calle Levadura, 5
Cordoba
SPAIN
BURNS, PHILP & COMPANY LIMITED
Level 23
56 Pitt Street
Sydney NSW 2000
AUSTRALIA
Attn.: Helen Golding, Company Secretary
Madrid, March 5, 2004
Ladies and Gentlemen:
RE: 9 3/4% SERIES B SENIOR SUBORDINATED NOTES DUE 2012
We have acted as special Spanish legal counsel to BURNS PHILP FOOD, S.A.
(Sociedad Unipersonal), a Spanish limited liability company (sociedad anonima)
(the "COMPANY"), in connection with the Spanish legal issues relating to a
guarantee granted by the Company (the "GUARANTY") of the obligations of BURNS
PHILP CAPITAL PTY LIMITED, an Australian corporation (the "ISSUER") and wholly
owned subsidiary of BURNS, PHILP & COMPANY LIMITED ("BURNS PHILP"), in respect
of U.S. $400.0 million aggregate principal amount of 9 3/4% Series B Senior
Subordinated Notes due 2012 (the "EXCHANGE NOTES"), which are being registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and will be
offered in exchange for its existing 9 3/4% Senior Subordinated Notes due 2012
(the "OLD NOTES").
As described in the Registration Statement on Form F-4 relating to the
Exchange Offer (as amended or supplemented, the "REGISTRATION STATEMENT"),
initially filed with the United States Securities and Exchange Commission (the
"COMMISSION") on August 9, 2002. The Old Notes were issued, and the Exchange
Notes are proposed to be issued, under an indenture dated as of June 21, 2002
(the "INDENTURE"), among the Issuer,
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Burns Philp and certain subsidiaries of Burns Philp (together with the Company,
the "SUBSIDIARY GUARANTORS") and The Bank of New York, a New York banking
corporation, as Trustee (the "TRUSTEE"). The terms of the Exchange Notes to be
issued are substantially identical to the Old Notes, except for certain transfer
restrictions and registration rights relating to the Old Notes. The Old Notes
are, and the Exchange Notes will be, fully and unconditionally guaranteed by the
Company and the Subsidiary Guarantors on a senior subordinated basis. The
Indenture is an exhibit to the Registration Statement.
For the purpose of this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents:
(i) the Indenture, containing the Guaranty, governed by the laws of New York;
(ii) the minutes of the decisions adopted by the Company's sole shareholder,
i.e., the Dutch corporation BURNS PHILP NETHERLANDS EUROPEAN HOLDINGS, BV
(the "COMPANY'S SOLE SHAREHOLDER"), dated June 12, 2002 and of the
resolutions approved by the Company's Board of Directors dated June 12,
2002 (the "Minutes");
(iii) an excerpt (Nota Simple Informativa) of the Mercantile Registry (Registro
Mercantil) of Cordoba, Spain, dated February 26, 2004, relating to the
Company (the "EXCERPT"); and
(iv) a Certificate dated March 5, 2004 issued on behalf of Burns Philp, the
Issuer, the Company and the Company's Sole Shareholder relating to (a) the
ownership of all of the Company's shares by the Company's Sole Shareholder
and due exercise of all voting rights attaching to such shares and the
decisions adopted by the Company's Sole Shareholder; (b) the powers of
attorney, appointments or authorizations granted by the Company or the
Company's Sole Shareholder not being revoked; (c) the filing of all
necessary documents at the Spanish Mercantile Registry (Registro
Mercantil) at the date of the Excerpt; (d) the Company and the Company's
Sole Shareholder not revoking or amending any resolutions in the Minutes
or matters in the Excerpt; and (e) there being no documents or instruments
that would affect or modify conclusions contained herein,
together (the "RELEVANT DOCUMENTS"), as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. In rendering
such opinion, we have relied as to factual matters upon the representations,
warranties and other statements made in the Relevant Documents.
In rendering the opinions expressed below, we have assumed, without any
independent verification:
(a) the genuineness of all signatures, stamps and seals appearing in the
Relevant Documents;
(b) the authenticity of all documents submitted to us as originals;
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(c) the conformity to the originals and the completeness of the Relevant
Documents submitted to us as conformed, facsimile or photostatic copies;
(d) that all representations in the Relevant Documents are true, correct,
accurate and complete when made and will remain true and accurate;
the power and authority to execute of, and the due execution by, all
parties to the Relevant Documents (except to the extent expressly opined
to herein in respect of the Company), that such execution will bind such
parties and that the performance thereof is within the capacity and powers
of each of the parties thereto (except to the extent expressly opined to
herein in respect of the Company);
that a search in respect of matters which are stated in the Spanish
competent Mercantile Registry (Registro Mercantil) since the date of the
Excerpt would not reveal any circumstances which would affect the
conclusions contained herein;
(e) that there are no matters or events of a factual nature within the scope
of our inquiry not disclosed to us which would affect the conclusions
contained herein;
(f) that neither the Old Notes nor the Exchange Notes shall under any
circumstances be issued, offered, sold, purchased, repurchased or
exchanged in Spain, and that any securities whatsoever that are issued
under the Indenture shall not exceed U.S. $400.0 million.
The opinions here rendered are limited to matters of Spanish law. We do
not represent ourselves to be familiar with the laws of any jurisdiction other
than Spain as they stand at present and, therefore, we express no opinion on any
question arising under any laws other than the laws of Spain.
Our involvement in the transaction described herein has been limited to
our role as special Spanish legal counsel to the Company in connection with the
Spanish legal issues relating thereto and, furthermore, we assume no obligation
to advise either you or any other party of changes of law or facts that could
occur after the date of the opinion, even though the change may affect the legal
analysis or conclusions given in this opinion.
Based upon the foregoing, and subject to the further exceptions,
limitations, qualifications and assumptions set forth herein, it is our opinion
that:
1. The Company is duly incorporated and is an existing corporation (sociedad
anonima) under the laws of Spain.
2. The Company has full power and authority, and all necessary consents and
approvals to execute and perform its obligations under the Indenture.
3. The execution by the Company of, and the performance by the Company of its
obligations under, the Indenture has been authorized by all requisite
corporate action on the part of the Company.
4. The Indenture was signed by someone who had actual authority to sign it
under the corporate authorizations of the Company.
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5. The execution by the Company of, and performance by the Company of its
obligations under, the Indenture, and compliance by the Company with all
of the provisions thereof, does not and will not result in a breach or
violation of (a) any of the terms and provisions of, or constitute a
default under, any statute, any rule or any regulation of any governmental
agency or body of Spain, or (b) the by-laws of the Company.
The opinions expressed above are subject to the following qualifications:
(i) Our opinions expressed above are subject to the effects and result of the
operations involved in any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws relating
to or affecting creditors' rights generally and to general equitable
principles.
(ii) Pursuant to Article 6 of the Spanish Civil Code, voluntary waiving of
rights recognized by law shall not be valid if deemed to be contrary to
public policy (orden publico), or made to the prejudice of a third party;
furthermore, under Spanish law, waiver or disposition of future rights not
yet existing or of pure expectations could be deemed null and void, unless
ratified at the time of the existence of the rights.
(iii) Performance by the Company of its obligations under the Indenture may
require that certain notifications or filings be made to or with the
Spanish relevant exchange control and/or tax authorities and certain
formalities be complied with pursuant to Spanish law in connection with
any payments that the Company may be required to make thereunder. Under
Spanish law, banking, financial, investment services and securities
activities are legally restricted to authorized credit entities and other
financial institutions.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name under the caption "Legal
Matters" in the prospectus included therein. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission thereunder. Dewey Ballantine LLP may rely on our opinion with
respect to matters of Spanish law for purposes of its opinion filed as an
exhibit to the Registration Statement, as if our opinion had been addressed to
it.
Very truly yours,
/s/ TERESA PAZ-ARES
Teresa Paz-Ares
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