Exhibit 5.5
[MAYER, BROWN, ROWE & MAW LLP LETTERHEAD]
11 Pilgrim Street
London EC4V 6RW
The addressees set out in the Appendix Telephone +44 (0)20 7248
4282
www.mayerbrownrowe.com
london@mayerbrownrowe.com
DX 93 LDE
Direct Tel +44 (0)20 7782 8650
Direct Fax +44 (0)20 7782 8774
March 5, 2004
Ladies and Gentlemen:
1. BACKGROUND
We have acted as special English counsel to Burns Philp (U.K.) Plc
(company number 2134749), an English public limited company (the "COMPANY"), in
connection with:
(a) the issuance by Burns Philp Finance Pty Limited, a corporation
incorporated under the laws of the Australian Capital Territory (the
"ISSUER"), of US$400,000,000 in aggregate principal amount of 9-3/4%
Senior Subordinated Notes due 2012 (the "NOTES") pursuant to an
indenture dated 21 June 2002 among the Issuer, the Company and the
other guarantors named therein (the "GUARANTORS") and The Bank of
New York, as trustee (the "INDENTURE");
(b) the guarantee of the Notes by the Company pursuant to Article 11 of
the Indenture (the "GUARANTEE");
(c) the proposed offer (the "REGISTERED EXCHANGE OFFER") to the holders
of the Notes in exchange for the surrender of the Notes, of a like
aggregate principal amount of debt securities of the Issuer, issued
under the Indenture, identical in all material respects to the Notes
and registered under the Securities Act of 1933 (as amended) (the
"ACT"); and
(d) the filing of a registration statement (the "EXCHANGE OFFER
REGISTRATION STATEMENT") with the Securities and Exchange Commission
of the United States (the "Commission") under the Act pursuant to
paragraph 1 of the Registration Rights Agreement (defined at
Paragraph 2(j) below) within 120 days of the purchase of the Notes
by the Initial Purchasers (defined below) pursuant to the Purchase
Agreement (defined at Paragraph 2(i) below).
This is a legal communication, not a financial communication. Neither this
nor any other communication from this firm is intended to be, or should be
construed as, an invitation or inducement (direct or indirect) to any
person to engage in investment activity.
This opinion is rendered pursuant to Item 601(b)(5) of Regulation S-K of
the Commission. Capitalised terms used but not defined herein shall have
the meanings assigned to them in the Purchase Agreement (defined at
Paragraph 2(i) below).
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2. EXAMINATION AND ENQUIRIES
For the purposes of giving this opinion, we have examined copies of the
following:
(a) CONSTITUTIONAL DOCUMENTS: a copy of the certificate of
incorporation, certificate of change of name, memorandum and
articles of association of the Company, certified by the company
secretary as being up-to-date to 5 March 2004;
(b) CORPORATE AUTHORITY: the minutes of a meeting of the board of
directors of the Company held on 11 June 2002 at which these
transactions, and in particular, the execution of the Indenture,
were approved, certified by the chairman of the meeting;
(c) SHAREHOLDER APPROVAL: a written resolution of the shareholders of
the Company passed on 11 June 2002 approving of the Company
executing, among other documents, the Indenture;
(d) OFFICERS CERTIFICATE: an officers certificate signed by a director
of the Company dated 5 March 2004 relating to the meeting referred
to in paragraph 2(b) (Corporate authority) and the shareholders
resolution referred to in paragraph 2(c) (Shareholder approval) of
this opinion and certifying the identity of the officers and
Attorney (as defined in the Power of Attorney referred to in
paragraph 2 (g) (Power of Attorney) of this opinion) of the Company;
(e) COMPANY SEARCH: a copy of the records of the Company from Companies
House Direct on 4 March 2004 (the "COMPANY SEARCH");
(f) GOOD STANDING CERTIFICATE: the faxed copy of a certificate of good
standing in respect of the Company issued by the Registrar of
Companies dated 3 March 2004;
(g) POWER OF ATTORNEY: a power of attorney from the Company appointing
the individuals referred to in the power of attorney to be its
attorney dated 11 June 2002 and executed by the Company (the "POWER
OF ATTORNEY");
(h) INDENTURE: the Indenture executed by, amongst others, the Company
and the Issuer;
(i) PURCHASE AGREEMENT: a purchase agreement dated 14 June 2002 (the
"PURCHASE AGREEMENT") among the Issuer, the Guarantors and Credit
Suisse First Boston Corporation on behalf of itself and as the
representative of itself and TD Securities (USA) Inc., as the
initial purchasers (the "INITIAL PURCHASERS");
(j) REGISTRATION RIGHTS AGREEMENT: an agreement relating to, among other
things, the filing by the Issuer of an exchange offer registration
statement with the Securities and Exchange Commission within 120
days of the date of issue of the Notes dated 21 June 2002 among the
Issuer, the Guarantors and the Initial Purchasers (the "REGISTRATION
RIGHTS AGREEMENT"), which exchange offer registration statement was
filed with the Securities Exchange Commission on 9 August 2002 under
file number 333-98141; and
(k) GLOBAL NOTE: the form of the global note to be issued by the Issuer
pursuant to the Indenture and the Purchase Agreement in the form set
out in Exhibit 1 to the Rule 144A/Regulation S Appendix of the
Indenture.
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As to questions of facts which are material to this opinion, we have, when
the relevant facts were not independently established by us, relied upon
statements made in the documents, records and certificates referred to in
this opinion (in particular, but without limitation, we have relied upon
the statements made in the Officers Certificate and have assumed such
statements are true, correct and not misleading in any respect).
In rendering the opinions set forth below, we have examined such other
documents, corporate records, certificates of public officials and
officers and other representatives of the Company, and such other
agreements, instruments and documents, and made such investigations of law
as we have deemed necessary for the purposes of this opinion.
3. OPINION
Based on the examination and enquiries referred to in Paragraph 2
(Examination and enquiries) above and the assumptions set out in Paragraph
4 (Assumptions) below, we are of the opinion that:
(a) STATUS AND CORPORATE POWER: the Company (i) is duly incorporated and
is an existing corporation in good standing under the laws of
England and Wales and (ii) has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Indenture;
(b) DUE EXECUTION: the Indenture has been duly authorized, executed and
delivered by the Company;
(c) NO CONTRAVENTION: the execution and delivery by the Company of, and
the performance of its obligations under, the Indenture will not
result in a breach or violation of:
(i) any of the terms and provisions of, or constitute a default
under, any statute, any rule or regulation or, any order of
any governmental agency or body or any court of England having
jurisdiction over the Company or any of its properties; or
(ii) the constitutional documents of the Company; and
(d) NO CONSENT: no consent, approval, authorization or order of, or
filing with, any governmental agency or body or court of England is
required for the consummation by the Company of the transactions
contemplated by the Indenture in connection with the issuance or
sale of the Notes.
For the purpose of this opinion, "DULY INCORPORATED" (as used in Paragraph
3(a) (Status and corporate power) in relation to the Company means that
the requirements of the Companies Act(s) applicable at its date of
incorporation in respect of registration and of matters precedent and
incidental to it have been complied with and that the Company is
authorised to be registered and is duly registered under that or those
Acts.
For the purposes of this opinion, "EXISTING CORPORATION IN GOOD STANDING"
(as used in Paragraph 3(a) (Status) in relation to the Company means that
it is subsisting at the date of this opinion and has not been struck off
the register maintained by the Registrar of Companies for England and
Wales, dissolved, nor ceased to exist by reason of any merger or
consolidation or limitation on the duration of its existence.
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4. ASSUMPTIONS
In giving this opinion, we have assumed:
(a) GENUINENESS OF ALL SIGNATURES AND DOCUMENTS: the genuineness of all
signatures, the authenticity of documents submitted to us as
originals, the conformity with the original documents of all
documents submitted to us as copies and that the statements in the
Officers Certificate are true, correct and not misleading in any
respect;
(b) OTHER PARTIES: that the Indenture:
(i) is within the capacity and powers of each of the parties to it
(other than the Company);
(ii) has been validly authorised and duly executed and delivered by
each such party; and
(iii) constitutes the valid, binding and enforceable obligations
(under the laws of each applicable jurisdiction) of each such
party;
(c) ACCURATE INFORMATION: that all information supplied to us (orally or
in writing) by the Company (through any of its employees or agents),
by any other lawyers involved in the transaction or otherwise is
true and accurate in all material respects;
(d) ACCURACY OF SEARCHES: that the information provided to us in, or in
response to, the Company Search and the Good Standing Certificate
was when provided, and remains at the date of this opinion,
accurate, complete and up to date in all respects;
(e) NO OTHER FACT: that there is no fact or matter (such as a mistake or
misrepresentation before or at the time the Indenture was entered
into, a subsequent release, waiver or variation of any right or
provision or any action having been taken in respect of the Company
which is not filed or registered with the Registrar of Companies)
which would or might affect this opinion and which was not revealed
to us by the steps taken by us in connection with this opinion; and
(f) INDENTURE: that for the purposes of our opinion in Paragraph 3(c)
(No contravention), the Indenture is and will be construed and
enforced in the same way as it would have been construed and
enforced had it been construed in accordance with and governed by
English law.
5. LAW AND RELIANCE
(a) This opinion relates only to the laws of England and Wales in force
at today's date. We express no opinion with regard to the laws of
any other jurisdictions. This opinion shall be governed by and
construed in accordance with English law.
(b) We hereby consent:
(i) to the filing of this legal opinion with the Commission as an
exhibit to the Exchange Offer Registration Statement;
(ii) to the reference made to this firm therein; and
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(iii) to Dewey Ballantine LLP relying on this legal opinion with
respect to matters of English law for the purposes of its
opinion filed as an exhibit to the Exchange Offer Registration
Statement.
In giving these consents, we do not thereby admit that we are
included within the category of persons whose consent is required
under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder.
(c) This opinion is strictly limited to the matters set out above and
does not extend to and is not to be read as extending by implication
to any other matter.
Yours faithfully
/s/ Mayer, Brown, Rowe & Maw LLP
MAYER, BROWN, ROWE & MAW LLP
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THE APPENDIX
Burns Philp (U.K.) Plc
Victoria House
15 Gay Street
Bath
Avon BA1 2PH
Burns Philp & Company Limited
Level 23
56 Pitt Street
Sydney
NSW 2000