Exhibit 5.6
[FRESHFIELDS BRUCKHAUS DERINGER LETTERHEAD]
Burns Philp Deutschland GmbH
Wandsbeker Zollstra(beta)e 59
22041 Hamburg
Burns Philp Deutschland Grundbesitz GmbH
Wandsbeker Zollstra(beta)e 59
22041 Hamburg
Deutsche Hefewerke GmbH
Wandsbeker Zollstra(beta)e 59
22041 Hamburg
Burns Philp Deutschland Export
Nahrungsmittel-Vertriebsgesellschaft mbH
Wandsbeker Zollstra(beta)e 59
22041 Hamburg
5 March 2004
RE: - BURNS PHILP DEUTSCHLAND GMBH, BURNS PHILP DEUTSCHLAND GRUNDBESITZ
GMBH, DEUTSCHE HEFEWERKE GMBH AND BURNS PHILP DEUTSCHLAND EXPORT
NAHRUNGSMITTEL-VERTRIEBSGESELLSCHAFT MBH AS GUARANTORS OF BURNS
PHILP CAPITAL PTY. LTD. US$ 400 MILLION 9 3/4% SENIOR SUBORDINATED
NOTES DUE 2012
- EXHIBIT TO THE REGISTRATION STATEMENT: FILE NO: 333-98141, INITIAL
FILING DATE: 9 AUGUST 2002
Ladies and Gentlemen:
We have acted as special German counsel to Burns Philp & Co. Ltd., Sydney in
connection with the issuance by Burns Philp Capital Pty. Ltd., an Australian
corporation (the "ISSUER"), of US$ 400 million in the aggregate principal amount
of 9 3/4% Senior Subordinated Notes due 2012 (the "NOTES") and the guaranty of
the Notes (the "GUARANTY") by Burns Philp Deutschland GmbH, Hamburg ("BPD"),
Burns Philp Deutschland Grundbesitz GmbH, Hamburg ("BPDG"), Deutsche Hefewerke
GmbH (formerly: Deutsche Hefewerke Verwaltungs GmbH), Hamburg ("DHW") and Burns
Philp Deutschland Export Nahrungsmittel-Vertriebsgesellschaft mbH ("BPDE") (BPD,
BPDG, DHW and BPDE collectively the
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"COMPANIES") pursuant to the Indenture (together with the Guaranty included
therein, the "INDENTURE") dated 21 June 2002 among the Issuer, the guarantors
named therein (the "GUARANTORS") and The Bank of New York, as trustee.
1. DOCUMENTS REVIEWED
In rendering this opinion, we have examined the following documents:
a) the Indenture and the Supplemental Indenture of Additional
Subsidiary Guarantors dated 7 February 2003 ("SUPPLEMENTAL
INDENTURE");
b) a certified copy of an excerpt from the Commercial Register of the
Local Court (Amtsgericht) of Hamburg dated 4 March 2004 on BPD;
c) a certified copy of an excerpt from the Commercial Register of the
Local Court (Amtsgericht) of Hamburg dated 4 March 2004 on BPDG;
d) a certified copy of an excerpt from the Commercial Register of the
Local Court (Amtsgericht) of Hamburg dated 4 March 2004 on DHW;
e) a certified copy of an excerpt from the Commercial Register of the
Local Court (Amtsgericht) of Hamburg dated 4 March 2004 on BPDE;
f) a copy of a shareholders' resolution of BPD dated 12 June 2002;
g) a copy of a shareholders' resolution of BPDG dated 12 June 2002;
h) a copy of a shareholders' resolution of DHW dated 12 June 2002;
i) a copy of a shareholders' resolution of BPDE dated 6 February 2003;
j) a copy of the articles of association of BPD dated 22 September
1997;
k) a copy of the articles of association of BPDG dated 24 September
1997;
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l) a copy of the articles of association of DHW dated 17 February 1998
as amended on 30 June 2003;
m) a copy of the articles of assocation of BPDE dated 26 August 1999;
n) a power of attorney of BPD, BPDG and DHW dated 20 June 2002;
o) a power of attorney of BPDE dated 6 February 2003;
p) a statement of John McKenna dated 5 March 2004 confirming that (i)
the articles of association of BPD, BPDG, DHW and BPDE referred to
in lit. j) to m) have not been changed and (ii) that the
Shareholders' Resolutions referred to in lit. f) to i), the powers
of attorney referred to in lit. n) and o) above and the Indenture
and the Supplemental Indenture referred to in lit. a) above have not
been revoked, rescinded, repealed, terminated, amended or
supplemented by the Companies.
The shareholders' resolutions listed under lit. f) to i) above are
hereinafter collectively referred to as the "SHAREHOLDERS' RESOLUTIONS".
The articles of association listed under lit. j) to m) above are
hereinafter collectively referred to as the "ARTICLES OF ASSOCIATION".
We confirm that we have examined all documents and public records and made
the investigations that we consider appropriate for rendering this
opinion.
2. ASSUMPTIONS
In considering the above documents and rendering this opinion we have with
your consent and without further enquiry assumed:
a) the conformity to originals of documents supplied to us as copies;
b) the genuineness of all signatures on, and the authenticity and
completeness of, all documents submitted to us whether as originals
or copies;
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c) that the Statement of John McKenna referred to in no. 1 lit. p)
above is true, accurate and correct;
d) that the excerpts from the Commercial Register of the Local Court
(Amtsgericht) of Hamburg referred to under no. 1 lit. b) to e) above
are accurate and complete as of their respective dates;
e) the full legal capacity of all individuals who have executed and
delivered the Indenture and the Supplemental Indenture and the
Shareholders' Resolutions on behalf of the parties thereto.
3. LAWS CONSIDERED
The undersigned is admitted to the bar in Dusseldorf, Germany, and
licensed as an attorney in Germany. This opinion is, therefore, limited to
matters of German law as presently in effect. We have not investigated and
do not express or imply an opinion with respect to the laws of any other
jurisdiction.
4. OPINION STATEMENTS
Based on the foregoing and subject to the limitations and qualifications
stated herein and to any factual matters or documents not disclosed to us,
we are of the opinion that:
a) BPD, BPDG, DHW and BPDE are limited liability companies
(Gesellschaften mit beschrankter Haftung) duly incorporated and
registered under German law.
b) The Indenture or the Supplemental Indenture, as the case may be, has
been duly executed on behalf of the Companies and has been duly
authorized by all necessary corporate action on behalf of the
Companies. Subject to para. 4 c) below, BPD, BPDG, DHW and BPDE have
full power and all necessary consents and approvals to execute,
deliver and perform their obligations under the Indenture or the
Supplemental Indenture, as the case may be.
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It should, however, be noted that, under German conflict of laws
rules, the validity and interpretation of a power of attorney
authorizing a contract is normally governed by the law of the
country where the contract is to be executed. Any choice of law
included in the power of attorney may thus be disregarded by German
courts. Hence a German court may disregard the choice of German law
included in the power of attorney and take the opinion that validity
and interpretation of the power of attorney be governed by
Australian law as the law of the country where the Indenture and the
Supplemental Indenture were executed.
c) The execution, delivery and performance of the Indenture and the
Supplemental Indenture does not conflict with the charter and
by-laws of the Companies or German law, provided that the
application of New York law as the law governing the Indenture and
the Supplemental Indenture does not lead to a result which is
incompatible with German public policy (ordre publique).
5. QUALIFICATIONS
The opinion expressed herein is subject to the following limitations and
qualifications:
a) The opinion expressed herein may be affected or limited by the
provisions of any applicable bankruptcy, insolvency, reorganisation,
moratorium, fraudulant conveyance laws, and other or similar laws of
general application affecting the enforcement or protection of
creditor's rights. In particular, a German insolvency administrator
for any of the Companies may challenge the validity of the Guaranty
given by the respective Company in the Indenture or the Supplemental
Indenture, as the case may be, if it has been granted during the
last three months preceding the insolvency application, or at any
time thereafter.
b) This opinion shall be governed by, and construed in accordance with,
the laws of the Federeal Republic of Germany.
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c) Nothing herein should be taken as expressing an opinion with respect
to the representations and warranties, or other factual statements,
contained in any of the documents referred to above.
d) This opinion speaks as of its date and relates only to the laws of
the Federal Republic of Germany in force and as applied as at the
date hereof. It is rendered in connection with the transaction
contemplated in the Indenture and the Supplemental Indenture and is
limited to the matters addressed herein and is not to be read as an
opinion in respect of any other matter. In particular, this opinion
is not to be read as an opinion in respect of the validity and/or
enforceability of the Indenture or the Supplemental Indenture or any
of their terms or provisions.
Dewey Ballantine LLP may also rely on our opinion with respect to matters of
German law for purposes of its opinion filed as an exhibit to the Registration
Statement, as if our opinion had been addressed to it.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement No. 333-98141 filed with the Securities and Exchange
Commission by the Issuer and the Guarantors and to the reference to our name
under the caption "Legal Matters" in the prospectus included therein. In giving
this consent, we do not thereby admit that we are included within the category
of persons whose consent is required under Section 7 of the Securities Act of
the United States, or the rules and the regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
Freshfields Bruckhaus Deringer
By /s/ Dr. Ulrich von Schonfeld
____________________________
Dr. Ulrich von Schonfeld