[FREEHILLS LETTERHEAD]
Exhibit 5.17
5 March, 2004
Burns, Philp & Company Limited
Burns Philp Capital Pty Limited
Each Subsidiary Guarantor listed in Schedule 1
Level 23
56 Pitt Street
SYDNEY NSW 2000
Dear Sirs
BURNS PHILP CAPITAL PTY LIMITED - ISSUE OF US$400 MILLION SENIOR
SUBORDINATED SECURITIES DUE 2012
We have acted as Australian legal advisors to Burns, Philp & Company Limited
(ACN 000 000 359) (PARENT) in connection with an offer to exchange (EXCHANGE
OFFER) by Burns Philp Capital Pty Limited (ACN 100 768 803) (ISSUER) of US$400
million Senior Subordinated Notes due 2012 (EXCHANGE NOTES) which are being
registered under the Securities Act of 1933 of the United States of America
(SECURITIES ACT) for its existing Senior Subordinated Notes due 2012 (OLD
NOTES), as described in the Registration Statement on Form F-4 relating to the
Exchange Offer (REGISTRATION STATEMENT) initially filed with the United States
Securities and Exchange Commission (COMMISSION) on 9 August 2002. The Old Notes
were issued and the Exchange Notes are proposed to be issued under an Indenture
dated 21 June 2002 between the Issuer, the Parent, certain "Subsidiary
Guarantors" as defined therein and The Bank of New York (INDENTURE). We note
that our role in connection with the Exchange Offer has been limited to the
rendering of this opinion (together with another opinion dated on or about the
same date as this opinion to be filed with the Registration Statement) and that
we have not been involved in the preparation of the Registration Statement and
make no comment on it.
1 DOCUMENTS
We have searched the records referred to in paragraph 1(g) and 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:
(a) a copy of the Indenture;
(b) a copy of a supplemental indenture dated 8 August 2003 between the Issuer,
the Parent, certain "Subsidiary Guarantors" as defined therein and certain
"Additional Subsidiary Guarantors" as defined therein (SUPPLEMENTAL
INDENTURE);
(c) a copy of:
(1) a circular resolution of the board of directors of Goodman Fielder
adopted on 19 June 2003;
(2) extracts of minutes of meetings of the board of directors of each
Relevant Party other than Goodman Fielder held on 19 June 2003;
(3) an extract from a circular resolution of the board of directors of
Goodman Fielder, and extracts of minutes of meeting of the board of
directors of each Relevant Party other than Goodman Fielder, held or
adopted (as the case may be) on 5 August 2003;
(4) records of resolutions of all the members of Goodman Fielder passed
on 19 September 2003 and of each other Relevant Party passed on 13
October 2003;
(5) a circular resolution of the board of directors of Goodman Fielder
adopted on 19 September 2003, and minutes of meetings of the board
of directors of each Relevant Party other than Goodman Fielder held
on 13 October 2003;
(6) a Ratification Deed:
(A) dated 22 September 2003 and executed by Goodman Fielder; and
(B) dated 16 October 2003 and executed by each Relevant Party
other than Goodman Fielder;
(d) an original certificate signed by an officer of each Relevant Party dated
5 March 2004 and the attachments referred to in it;
(e) a copy of the power of attorney of each Relevant Party dated 23 June 2003;
(f) a certified copy of:
(1) the constitution of Goodman Fielder as at 19 June 2003; and
(2) the current constitution of each Relevant Party;
(g) documents arising from on-line searches of records at the ASIC made on
4 March 2004 and 5 March 2004 in relation to each Relevant Party; and
(h) a certified extract from the register of members of each Relevant Party.
2 DEFINITIONS
In this Opinion expressions defined in this Opinion have the meanings given and:
(a) ASIC means the Australian Securities and Investments Commission;
(b) AUSTRALIA means the Commonwealth of Australia;
(c) CONSTITUTIONS means the documents referred to in paragraph 1(f)(2);
(d) COMPANY EXTRACT means the documents referred to in paragraph 1(g);
(e) CORPORATIONS ACT means the Corporations Act 2001 (Cth);
PAGE 2
(f) DOCUMENT means the document referred to in paragraph 1(b) and, in respect
of each Relevant Party, that document;
(g) POWER OF ATTORNEY means the power of attorney referred to in paragraph
1(e);
(h) RELEVANT JURISDICTION means, as the context requires, the State of New
South Wales and Australia;
(i) RELEVANT LAWS means the laws of the Relevant Jurisdictions;
(j) RELEVANT PARTY means each of the Subsidiary Guarantors listed in schedule
1;
(k) RESOLUTION means a resolution of the board of directors or the members of
a Relevant Party referred to in the documents referred to in paragraph
1(c);
(l) SECURITY has the meaning given in the Indenture;
(m) SUBSIDIARY GUARANTORS means each of the Guarantors listed in schedule 1.
3 OPINION
Based on the documents referred to in paragraph 1 and subject to the assumptions
and qualifications set out in this Opinion, we are of the opinion that:
(a) each Relevant Party is registered and validly existing under the laws of
the Relevant Jurisdictions;
(b) each Relevant Party has the corporate power to enter into and perform its
obligations under its Document;
(c) each Relevant Party has taken all necessary corporate action to authorise
or ratify the execution of, and the performance of its obligations under,
its Document;
(d) each Relevant Party has validly executed, or ratified its execution of,
its Document; and
(e) the execution or ratification by a Relevant Party of, and the performance
by the Relevant Party of its obligations under, its Document does not and
will not result in a breach or violation by the Relevant Party of any of
the terms or provisions of the constitution of the Relevant Party.
4 ASSUMPTIONS
In this Opinion we have assumed the following matters, and we have not made any
independent investigation of, or enquiries in respect of, those matters:
(a) in relation to the Document and each other document examined by us:
(1) all signatories, seals, dates, duty stamps and markings are
authentic;
(2) if a copy or a specimen, it conforms in all respects to the
original;
(3) it is accurate, complete and up-to-date;
(4) it has been duly authorised, executed and delivered by all parties
to it under, and its execution, delivery and performance by all
parties
PAGE 3
to it complies with, all applicable laws (other than, in respect of
a Relevant Party and its Document, the Relevant Laws);
(b) as of the date of the searches referred to in paragraph 1(g), all
information required by law to be notified to the ASIC in relation to the
Relevant Parties (whether or not any period for notification had expired)
had been so notified, the records of the ASIC were in relation to the
Relevant Parties accurate, complete and up-to-date and those records were
correctly recorded in the Company Extracts;
(c) the Securities will not be offered, issued or sold in a manner contrary to
the selling restrictions relating to Australia set forth on page (ii) of
the prospectus included in the Registration Statement;
(d) in relation to the execution, delivery and performance by each Relevant
Party of its Document, including each Resolution, the directors,
secretaries and agents of the Relevant Party properly performed their
duties to the Relevant Party;
(e) each Relevant Party and each other party to a Document is solvent at the
time of, and after giving effect to, the entry into of each Document to
which it is a party; and
(f) the correctness of each statement, determination or resolution set out in:
(1) the certificate referred to in paragraph 1(d);
(2) the documents referred to in paragraph 1(c).
5 QUALIFICATIONS
This Opinion is subject to the following qualifications:
(a) this Opinion relates only to the laws of the Relevant Jurisdictions in
force at the time of giving this Opinion. We neither express nor imply any
opinion as to, and have not made any investigation of, the laws of any
other jurisdiction. We are under, and assume, no obligation to inform any
person of, or of the effect of, any future changes to those or any other
laws;
(b) we express no opinion as to the enforceability of any Document;
(c) in rendering this Opinion we have construed the Documents and made the
statements set out in this Opinion as lawyers admitted to practice in the
State of New South Wales without reference to the meaning or effect they
may have in any other jurisdiction or anything other than their plain
words.
This Opinion is strictly limited to the matters stated in it and does not apply
by implication to other matters.
This Opinion is only given:
(a) in respect of and is limited to the Relevant Laws as applied by the courts
of the Relevant Jurisdictions which are in force at 9.00 am Sydney time on
the date of this letter;
(b) on the basis that it will be governed by and construed in accordance with
the laws of the Relevant Jurisdictions.
PAGE 4
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the prospectus included therein as
having provided this opinion. 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.
Yours faithfully
FREEHILLS
/s/ Freehills
Patrick Lowden
Partner
PAGE 5
SCHEDULE 1
RELEVANT PARTY REGISTRATION NUMBER
- -------------- -------------------
BCW Hotplate Bakery Pty Limited ACN 081 688 011
Country Bake Bakeries Pty Limited ACN 009 423 769
Ernest Adams Australia Pty Limited ACN 002 626 137
ETA Foods Pty Limited ACN 000 982 007
Fielder Gillespie Davis Finance Pty Limited ACN 078 216 065
G F Australia Pty Limited ACN 000 082 324
G F D Australia Pty Limited ACN 004 106 129
G F Defiance Pty Limited ACN 054 283 706
GF Finance International Pty Limited ACN 053 916 733
GF Finance Pty Limited ACN 009 979 471
GF Fresh Pty Limited ACN 083 952 283
GF Group Services Pty Limited ACN 003 889 996
GF Trade Finance Pty Limited ACN 086 651 390
G Wood Son and Company Proprietary Limited ACN 007 870 797
Gillespie Bros Holdings Pty Limited ACN 008 407 109
Goodman Fielder Consumer Foods Pty Limited ACN 000 024 546
Goodman Fielder Field Operations Pty ACN 082 246 437
Limited
Goodman Fielder Food Services Pty Limited ACN 009 480 906
Goodman Fielder Ingredients Pty Limited ACN 000 147 580
Goodman Fielder International Pty Limited ACN 000 095 509
Goodman Fielder Pty Limited ACN 000 003 958
ML (WA) Export Pty Limited ACN 000 173 964
Mowbray Industries Pty Limited ACN 008 401 198
Namregtown International Pty Limited ACN 003 995 506
Provincial Traders Foods Pty Limited ACN 008 593 253
QBA Properties Pty Limited ACN 000 357 111
Quality Bakers Australia Pty Limited ACN 004 205 449
Rochna Pty Limited ACN 007 558 947
Stuart Bakery Pty Limited ACN 009 596 730
Sunicrust Bakeries Pty Limited ACN 004 402 582
The Uncle Tobys Company Pty Limited ACN 000 008 962
Uncle Tobys Properties Pty Limited ACN 004 211 812
William Jackett & Son Pty Limited ACN 007 874 213
PAGE 6
[FREEHILLS LETTERHEAD]
5 March 2004 Our ref Patrick Lowden:36G
Doc no Sydney\004504696
Burns, Philp & Company Limited
Burns Philp Capital Pty Limited
Each Subsidiary Guarantor listed in Schedule 1
Level 23
56 Pitt Street
SYDNEY NSW 2000
Dear Sirs
BURNS PHILP CAPITAL PTY LIMITED - ISSUE OF US$400 MILLION SENIOR SUBORDINATED
SECURITIES DUE 2012
We have acted as Australian legal advisors to Burns, Philp & Company Limited
(ACN 000 000 359) (PARENT) in connection with an offer to exchange (EXCHANGE
OFFER) by Burns Philp Capital Pty Limited (ACN 100 768 803) (ISSUER) of US$400
million Senior Subordinated Notes due 2012 (EXCHANGE NOTES) which are being
registered under the Securities Act of 1933 of the United States of America
(SECURITIES ACT) for its existing Senior Subordinated Notes due 2012 (OLD
NOTES), as described in the Registration Statement on Form F-4 relating to the
Exchange Offer (REGISTRATION STATEMENT) initially filed with the United States
Securities and Exchange Commission (COMMISSION) on 9 August 2002. The Old Notes
were issued and the Exchange Notes are proposed to be issued under an Indenture
dated 21 June 2002 between the Issuer, the Parent, certain `Subsidiary
Guarantors" as defined therein and The Bank of New York (INDENTURE). We note
that our role in connection with the Exchange Offer has been limited to the
rendering of this opinion (together with another opinion dated on or about the
same date as this opinion to be filed with the Registration Statement) and that
we have not been involved in the preparation of the Registration Statement and
make no comment on it.
1 DOCUMENTS
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 the
following documents (the POWERS OF ATTORNEY):
(a) a Power of Attorney dated 20 June 2002 executed by Burns Philp Deutschland
GmbH, Burns Philp Deutschland Grundbesitz GmbH,
Deutsche Hefewerke GmbH & Co OHG and Deutsche Hefewerke Verwaltungs GmbH;
and
(b) a Power of Attorney dated 6 February 2003 executed by Burns Philp
Deutschland Export Nahrungsmittel-Vertriebsgesellschaft mbH.
2 DEFINITIONS
In this Opinion:
(a) AUSTRALIA means the Commonwealth of Australia; and
(b) RELEVANT JURISDICTION means, as the context requires, the State of New
South Wales and Australia.
3 OPINION
Based on the documents referred to in paragraph 1 and subject to the assumptions
and qualifications set out in this Opinion, we are of the opinion that the
appropriate federal courts of Australia or the Supreme Court of New South
Wales, in each case having or exercising jurisdiction, would give effect
to the choice of laws specified in each Power of Attorney to govern the
Power of Attorney.
4 ASSUMPTIONS
In this Opinion we have assumed the following matters and have not any
independent investigation of, or enquiries in respect of, those matters:
(a) the copies of the Powers of Attorney provided to us are accurate, complete
and up-to-date;
(b) the Powers of Attorney are in full force and effect, have been validly
executed by and are binding on and enforceable against each party to them
in accordance with their terms and those parties are duly incorporated
under all applicable laws; and
(c) the choice of laws specified in each Power of Attorney is bona fides and
not unconnected with the commercial realities of the transactions
contemplated by the Power of Attorney.
5 QUALIFICATIONS
This Opinion is subject to the following qualifications:
(a) this Opinion relates only to the laws of the Relevant Jurisdictions in
force at the time of giving this Opinion. We neither express nor imply any
opinion as to, and have not made any investigation of, the laws of any
other jurisdiction. We are under, and assume, no obligation to inform any
person of, or of the effect of, any future changes to those or any other
laws;
(b) the courts of the Relevant Jurisdictions will not give effect to a choice
of law to govern a document if to do so would be contrary to public policy
(but there is nothing on the face of the Powers of Attorney that causes us
to believe that giving effect to the choice of law contained in the Powers
of Attorney would be contrary to public policy); and
(c) in rendering this Opinion we have construed the Powers of Attorney and
made the statements set out in this Opinion as lawyers admitted to
practice in the State of New South Wales without reference to the meaning
or
effect they may have in any other jurisdiction or anything other than
their plain words.
This Opinion is strictly limited to the matters stated in it and does not apply
by implication to other matters.
This Opinion is only given:
(a) in respect of and is limited to the laws of the Relevant Jurisdictions as
applied by the courts of the Relevant Jurisdictions which are in force at
9.00 am Sydney time on the date of this letter;
(b) on the basis that it will be governed by and construed in accordance with
the laws of the Relevant Jurisdictions.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the prospectus included therein as
having provided this opinion. 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.
Yours faithfully
FREEHILLS
/s/ Freehills
Patrick Lowden
Partner