Exhibit 5.1
[DEWEY BALLANTINE LLP LETTERHEAD]
March 5, 2004
Burns, Philp & Company Limited
Level 23
56 Pitt Street
Sydney, NSW 2000
Australia
Ladies and Gentlemen:
Re: 9-3/4% Series B Senior Subordinated Notes Due 2012
We have acted as special United States counsel to Burns, Philp &
Company Limited, an Australian corporation (the "Company"), in connection with
the offer to exchange (the "Exchange Offer") by Burns Philp Capital Pty Limited,
an Australian corporation and wholly owned subsidiary of the Company (the
"Issuer"), U.S.$400,000,000 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"), for its
existing 9-3/4% Senior Subordinated Notes due 2012 (the "Old Notes"), as
described in the Registration Statement on Form F-4 (File No. 333-98141)
relating to the Exchange Offer (as amended or supplemented, the "Registration
Statement"), initially filed on August 9, 2002 with the Securities and Exchange
Commission. The Old Notes were issued, and the Exchange Notes are proposed to be
issued, under an indenture dated as of June 21, 2002, and amended by
Supplemental Indentures dated as of October 17, 2002, December 2, 2002, February
7, 2003, June 30, 2003, August 8, 2003 and February 11, 2004 (collectively, the
"Indenture"), among the Issuer, the Company and 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
certain subsidiaries of the Company (the "Subsidiary Guarantors" and, together
with the Company, the "Guarantors"), on a senior subordinated basis (the
"Guarantees"). The Indenture is an exhibit to the Registration Statement.
In rendering the opinion expressed below, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of such
documents, corporate
Burns, Philp & Company Limited
March 5, 2004
Page 2
records, certificates of public officials and officers and other representatives
of the Company and its subsidiaries (including the Subsidiary Guarantors), and
such other agreements, instruments and documents as we have deemed necessary or
appropriate for the purpose of this opinion.
In such examination, we have assumed, without independent
investigation, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity with the originals of all
documents submitted to us as copies and the correctness of all statements of
fact in all documents examined. In rendering the opinion set forth below, we
have relied as to factual matters upon certificates, statements and
representations of the Company and its subsidiaries (including the Subsidiary
Guarantors), their respective officers, directors and representatives and public
officials.
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Exchange Notes, when duly executed, authenticated and
delivered in exchange for the Old Notes in accordance with the terms of the
Indenture and the Exchange Offer, will be valid and binding obligations of the
Issuer enforceable in accordance with their terms.
(ii) The Guarantees provided by the Company and each Subsidiary
Guarantor are valid and binding obligations of the Company and each such
Subsidiary Guarantor, respectively, enforceable against each of them in
accordance with their terms.
Our opinion set forth above is subject to, and the enforcement of
the obligations described therein may be limited by, applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally, public policy
considerations and by general principles of equity and the discretion of the
court before which any proceedings therefore may be brought. Such principles of
equity are of general application and in applying such principles, a court may,
without limitation, include a covenant of good faith and fair dealing and apply
concepts of reasonableness and materiality (regardless of whether enforcement
may be sought in a proceeding in equity or at law). Rights to indemnification
and contribution may be limited by Federal and state securities laws.
In rendering the foregoing opinion, we express no opinion, either
directly or indirectly, as to laws other than the federal laws of the United
States of America, the laws of the State of New York and the State of California
and the General Corporation Law of the State of Delaware (to the extent
applicable to the opinion provided herein) as of the date hereof. With respect
to certain matters of the laws of the State of Iowa and of Argentina, Australia,
Canada, Ecuador, Germany, Guatemala, the Netherlands, New Zealand, Peru, Spain,
the United Kingdom, Uruguay and Venezuela relevant to our opinion, we have
relied with your permission and without independent investigation, upon the
opinions of Dorsey & Whitney, LLP, Brons & Salas, Allens Arthur Robinson,
Freehills, Blake, Cassels & Graydon, LLP, Perez Bustamente & Ponce, Freshfields
Burns, Philp & Company Limited
March 5, 2004
Page 3
Bruckhaus Deringer, Bonilla, Montano & Toriello, Clifford Chance LLP, Russell
McVeagh, Bell Gully, Muniz, Forsyth, Ramirez, Perez-Taiman & Luna-Victoria, Uria
& Menendez, Mayer, Brown, Rowe & Maw LLP, Aroztegui & Asoc., Posadas, Posadas &
Vecino and Macleod Dixon S.C. filed as the exhibits to the Registration
Statement, subject to the assumptions, limitations, qualifications and
exceptions contained therein. The foregoing opinion is rendered as of the date
hereof and we assume no obligation to update such opinion to reflect any facts
or circumstances which may hereafter come to our attention or any changes in the
law which may hereafter occur.
We hereby consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement and to the reference made to us 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 of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Dewey Ballantine LLP