Exhibit 5.4
(BLAKE, CASSELS & GRAYDON LLP LETTERHEAD)
Box 25, Commerce Court West
199 Bay Street
Toronto, Ontario, Canada
M5L 1A9
March 5, 2004
Deliveries: 28th Floor
Telephone: 416.863.2400
Facsimile: 461.863.2653
www.blakes.com
Burns Philp Food Limited
31 rue Airlie
LaSalle, Quebec
H8R 1Z8
RE: BURNS PHILP FOOD LIMITED AS GUARANTOR OF BURNS PHILP CAPITAL
PTY LIMITED US$400 MILLION 9 3/4% SENIOR SUBORDINATED NOTES
DUE 2012 (SECURITIES AND EXCHANGE COMMISSION FILE NO.
333-98141)
Ladies and Gentlemen:
We have acted as special Ontario counsel to Burns, Philp & Company
Limited (the "PARENT") in respect of its Canadian subsidiary, Burns Philp Food
Limited, a corporation incorporated pursuant to the laws of Canada (the
"CORPORATION"), in connection with the issuance by Burns Philp Capital Pty
Limited, an Australian corporation (the "ISSUER"), of 9 3/4% Senior
Subordinated Notes due 2012 (the "NOTES"), in the aggregate principal amount of
US$400 million, and the guarantee of the Notes (the "GUARANTY") by the
Corporation pursuant to the Indenture (together with the Guaranty included
therein, the "INDENTURE") dated June 21, 2002 among the Issuer, the guarantors
named therein (the "GUARANTORS") and The Bank of New York, as trustee.
This opinion is rendered pursuant to Item 601(b)(5) of Regulation
S-K of the United States Securities and Exchange Commission (the "COMMISSION"),
in connection with the Exchange Offer Registration Statement filed with the
Commission pursuant to Section 1 of the Registration Rights Agreement dated June
21, 2002 (the "REGISTRATION RIGHTS AGREEMENT") among the Issuer, the Guarantors
and Credit Suisse First Boston Corporation and TD Securities (USA) Inc., as the
initial purchasers (the "INITIAL PURCHASERS").
The opinions expressed herein relate only to the laws of the
Province of Ontario and the federal laws of Canada applicable therein and no
opinions are expressed with respect to the laws of any other jurisdiction.
Capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
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For the purpose of this opinion, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
statutes, public records, corporate records, certificates of government offices
or officials, and such other instruments as we have deemed necessary or
appropriate for purposes of this opinion, including:
(i) the Indenture;
(ii) the purchase agreement dated June 14, 2002 among the Issuer, the
Guarantors and the Initial Purchasers (the "PURCHASE AGREEMENT");
(iii) the Registration Rights Agreement;
(iv) the Exchange Offer Registration Statement, referred to above,
containing a prospectus, which was filed with the U.S. Securities
and Exchange Commission on August 9, 2002, amended and re-filed on
October 18, 2002, December 3, 2002, July 16, 2003, and January 22,
2004, and has been further amended and is being re-filed again;
(v) the Power of Attorney, dated June 14, 2002, executed by the
Corporation (the "POWER OF ATTORNEY");
(vi) a certificate of compliance for the Corporation, issued by Industry
Canada on March 4, 2004 (the "CERTIFICATE OF COMPLIANCE"); and
(vii) a certificate of an officer of the Corporation, dated March 5, 2004
(the "OFFICER'S CERTIFICATE").
We have also made such further investigations and searches and
considered such questions of law, as we have considered relevant and necessary
as a basis for the opinions hereinafter expressed.
We have relied, without independent verification, upon the Officer's
Certificate, as to factual matters contained in the Officer's Certificate, and
on the Certificate of Compliance.
With respect to the opinion given in paragraph 2 below, we have
relied on the opinion of Allens Arthur Robinson attached as Schedule A
hereto to confirm that: (i) Burns Philp Food Overseas Holdings Limited had all
requisite corporate power and capacity to execute and deliver the Unanimous
Shareholder Declaration (the "DECLARATION"), dated June 13, 2002, and the
Resolutions of the sole shareholder of the Corporation (the "RESOLUTIONS"),
dated June 14, 2002, which Declaration and Resolutions are attached as Schedules
to the Officer's Certificate, and to exercise its rights and perform its
obligations thereunder; (ii) it took all necessary corporate action to authorize
the execution and delivery of the Declaration and the Resolutions and the
exercise of its rights and the performance of its obligations thereunder; and
(iii) that it duly executed and delivered the Declaration and the Resolutions.
To the extent that the opinion
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of Allens Arthur Robinson is based upon any assumptions or is made subject to
any qualifications, our reliance on such opinion is based on such assumptions
and subject to such qualifications.
We have relied on the opinion of Dewey Ballantine LLP attached as
Schedule B hereto to confirm that the law of the State of California imposes no
formalities upon the execution and delivery, in California, of the Power of
Attorney, other than as set forth in such opinion. To the extent that the
opinion of Dewey Ballantine LLP is based upon any assumptions or is made subject
to any qualifications, our reliance on such opinion is based on such assumptions
and subject to such qualifications other than those that pertain to the laws of
Canada.
ASSUMPTIONS
For the purposes of the opinions expressed herein, we have assumed:
(a) the genuineness of all signatures of all parties and the legal
capacity of all individuals;
(b) the authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as
certified or photostatic or electronically transmitted copies or
facsimiles thereof and the authenticity of the originals of such
certified or photostatic or electronically transmitted copies or
facsimiles;
(c) the accuracy, currency and completeness of the indices and filing
systems maintained by the public offices and registries where we
have searched or enquired or have caused searches or enquiries to be
made and upon the information and advice provided to us by
appropriate government, regulatory or other like officials with
respect to those matters referred to herein;
(d) that each of the parties (other than the Corporation) to the
Indenture has all requisite corporate power and capacity to execute
and deliver the Indenture and to exercise its rights and perform its
obligations thereunder, and has taken all necessary corporate action
to authorize the execution and delivery of the Indenture and the
exercise of its rights and the performance of its obligations
thereunder; and
(e) that each of the parties (other than the Corporation) to the
Indenture has duly executed and delivered the Indenture.
Based on the foregoing, we are of the opinion that:
1. The Corporation is a subsisting corporation under the federal laws
of Canada.
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2. The Corporation has taken all necessary corporate action to
authorize the execution and delivery by it of the Indenture and the
performance of its obligations thereunder. The Indenture has been
duly executed by the Corporation as a matter of corporate law in
compliance with the laws of its jurisdiction of incorporation,
namely, the federal laws of Canada, and with the provisions of its
articles and by-laws and the Declaration and Resolutions.
3. The execution and delivery by the Corporation of, and performance by
the Corporation of its obligations under, the Indenture, and
compliance by the Corporation with all of the provisions thereof,
will not result in a breach of, or constitute a default under its
articles or by-laws.
CONSENT
We hereby consent to the filing of this opinion as Exhibit 5.4 to
the Exchange Offer Registration Statement and to the reference to Blake, Cassels
& Graydon LLP under the caption "Legal Matters" in the prospectus included in
the Exchange Offer Registration Statement. In giving this consent, we do not
thereby admit that we are included within the meaning of persons whose consent
is required under Section 7 of the U.S. Securities Act of 1933, as amended, or
the rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
Dewey Ballantine LLP may rely on this opinion with respect to
matters regarding the laws of the province of Ontario and the federal laws
applicable therein for purposes of its opinion filed as an exhibit to the
Exchange Offer Registration Statement.
* * *
This opinion is strictly limited to the matters stated in it and
does not apply by implication to other matters.
This opinion is given in respect of the laws of the Province of
Ontario and the federal laws applicable therein which are in effect at 9:00 a.m.
(Toronto time) on the date of this opinion.
Yours truly,
/s/ Blake, Cassels & Grayton LLP
ATTACHMENTS
Schedule A - Opinion of Allens Arthur Robinson
Schedule B - Opinion of Dewey Ballantine LLP
SCHEDULE A
Attached.
[Allens Arthur Robinson Letterhead]
5 March 2004
Blake, Cassels & Graydon LLP
Box 25, Commerce Court West
199 Bay Street
Toronto, ON M5L 1A9
Canada
Dear Sirs
BURNS PHILP FOOD OVERSEAS HOLDINGS LIMITED
FORM F-4 - REGISTRATION STATEMENT SUPPORT OPINION
We have acted as special Australian counsel to Burns Philp Food Overseas
Holdings Limited 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 on 9 August 2002) (the REGISTRATION
STATEMENT).
Definitions in the Indenture or Registration Statement apply in this opinion
unless the context otherwise requires but RELEVANT COMPANY means Burns Philp
Food Overseas Holdings Limited 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 certified copy of the constitution of the Relevant Company as at 3
June 2002;
(b) a certificate dated 5 March 2004 certifying that the copy of the
constitution of the Relevant Company has not been amended or
replaced and continues in full force and effect since 3 June 2002
and that documents or authorisations relied on in this opinion
continue in full force and effect;
(c) a copy of the signed resolutions passed by the Board of Directors
dated 11 June 2002 of the Relevant Company (the BOARD RESOLUTIONS);
(d) a copy of the signed Unanimous Shareholders Declaration dated 13
June 2002 (the DECLARATION);
(e) a copy of the signed Resolutions of the Sole Shareholder of Burns
Philp Food Limited dated 14 June 2002 (the RESOLUTIONS); and
(f) a certificate of Helen Golding dated 5 March 2004 certifying as to
certain factual matters and as to the holding of Board Meetings of
the Relevant Company and as to issues of commercial benefit.
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 Resolutions and Declaration constitute legal, valid and binding
obligations of the Relevant Company under the laws of Canada
enforceable in competent courts of that jurisdiction.
(d) As of the date of the searches referred to in paragraph 3(b), all
information required by law to be notified to the Australian
Securities and Investment Commission (the ASIC) in relation to the
Relevant Company (whether or not any period for notification had
expired) had been so notified, the records of the ASIC were, in
relation to the 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(b).
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 a search of public records of the Australian
Securities and Investments Commission on 3 March 2004.
(c) We have relied, as to certain matters of fact, on certificates of
officers of the Relevant Company.
4. OPINION
Based on the assumptions and subject to the qualifications set out above
we are of the following opinion.
(a) The Relevant Company is incorporated in Australia.
(b) The Relevant Company has the corporate power to enter into and
perform its obligations under the Resolutions and the Declaration.
(c) The execution, delivery and performance by the Relevant Company of
the Declaration and Resolutions, will not violate in any respect any
existing provision of:
(i) any law of any Relevant Jurisdiction; or
(ii) its constitution.
(d) The Resolutions and Declaration have been duly authorised, executed
and delivered.
(e) All authorisations under the laws of any Relevant Jurisdiction now
obtainable and required in connection with the execution, delivery,
performance, validity or enforceability of the Declarations and
Resolutions 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 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 this opinion;
(c) being referred to in, and attached as a schedule to, your opinion for the
purposes of filing your opinion with the Securities and Exchange
Commission of the United States of America as an Exhibit 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
SCHEDULE B
Attached.
[Dewey Ballantine LLP Letterhead]
March 5, 2004
Blake, Cassels & Graydon LLP
Box 25, Commerce Court West
199 Bay Street
Toronto, Ontario, Canada
M5L 1A9
Burns Philp Food Limited
Ladies and Gentlemen:
We have acted as special U.S. counsel to Burns, Philp & Company
Limited (the "Parent"), Burns Philp Inc., a Delaware corporation ("BPI"), Burns
Philp Food Inc., a California corporation ("BPFI"), Tone Brothers, Inc., an Iowa
corporation ("TBI"), and Burns Philp Capital Pty Limited, an Australian
corporation (the "Issuer"), in connection with the Indenture, dated as of June
21, 2002, among Burns Philp Capital Pty Limited, as issuer, the Parent, the
Subsidiary Guarantors (as defined therein) party thereto, and The Bank of New
York, as trustee (the "2002 Indenture"). Capitalized terms used in this letter
without definition have the meanings ascribed to them in the 2002 Indenture or
in the opinion letter of your firm referred to in the following paragraph.
This letter is delivered to you, at the request of Parent, in
connection with your delivery of a legal opinion, dated today's date, as special
Ontario counsel to Parent in respect of its Canadian subsidiary, Burns Philp
Food Limited, rendered pursuant to Item 601(b)(5) of the United States
Securities and Exchange Commission ("SEC") in connection with the Exchange Offer
Registration Statement, as referred to in your opinion, filed with the SEC
pursuant to Section 1 of the Registration Rights Agreement dated June 21, 2002
among the Issuer, the Guarantors, and Credit Suisse First Boston Corporation and
TD Securities (USA) Inc., as the initial purchasers.
We have relied, for purposes of the opinion expressed herein, upon a
certificate of an officer of Burns Philp Food Limited to the effect that the
Power of Attorney was executed and delivered in the State of California.
Based upon the foregoing and our examination of such questions of
law as we have deemed necessary or appropriate, and subject to the limitations
and qualifications set forth below, it is our opinion that the law of the State
of California did not on the date(s) the Power of Attorney was executed and
delivered by Burns Philp Food Limited, impose, nor have there been any
subsequent changes which would have the effect of retroactively imposing, any
formalities upon the execution and delivery, in California, of the Power of
Attorney, other than the signing of the Power of Attorney on behalf of Burns
Philp Food Limited by an officer duly authorized to
do so and physical delivery of the Power of Attorney, together with such other
formalities as may be required under applicable Canadian law for the execution
and delivery by Burns Philp Food Limited of the Power of Attorney.
Our opinions are limited to the law of the State of California. We
express no opinion with respect to the enforceability of the Power of Attorney
under California law. This letter speaks only as of its date. We undertake no
obligation to advise you or any third party of changes of law or fact that occur
after the date of this letter, even though the change may affect the legal
analysis or a legal conclusion or other matters in this letter.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form F-4 (File No. 333-98141) as amended or
supplemented, initially filed with the Securities and Exchange Commission on
August 9, 2002, and to the reference to our name under the caption "Legal
Matters" in the prospectus contained 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