EXHIBIT 5.10
[URIA & MENENDEZ LETTERHEAD]
Direct tel.: + 34 91 586 0409
Direct fax: + 34 91 586 0080
E-mail: tpa@uria.com
BURNS PHILP FOOD, S.A. (SOCIEDAD UNIPERSONAL)
Calle Levadura, 5
Cordoba
SPAIN
BURNS, PHILP & COMPANY LIMITED
Level 23
56 Pitt Street
Sydney NSW 2000
AUSTRALIA
Attn.: Helen Golding, Company Secretary
Madrid, March 5, 2004
Ladies and Gentlemen:
RE: 10-3/4% SERIES B SENIOR SUBORDINATED NOTES DUE 2011
We have acted as special Spanish legal counsel to BURNS PHILP FOOD,
S.A. (Sociedad Unipersonal), a Spanish limited liability company (sociedad
anonima) (the "COMPANY"), in connection with the Spanish legal issues relating
to a guarantee granted by the Company (the "GUARANTY") of the obligations of
BURNS PHILP CAPITAL PTY LIMITED, an Australian corporation, and BURNS PHILP
CAPITAL (U.S.) INC., a Delaware corporation (the "ISSUERS"), wholly owned
subsidiaries of BURNS, PHILP & COMPANY LIMITED ("BURNS PHILP"), in respect of
U.S. $210.0 million aggregate principal amount of 10-3/4% Series B Senior
Subordinated Notes due 2011 (the "EXCHANGE NOTES"), which are being registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), and will be
offered in exchange for their existing 10-3/4% Senior Subordinated Notes due
2011 (the "OLD NOTES").
As described in the Registration Statement on Form F-4 relating to the
Exchange Offer (as amended or supplemented, the "REGISTRATION STATEMENT"),
initially filed with the United States Securities and Exchange Commission (the
"COMMISSION") on July 16, 2003. The Old Notes were issued, and the Exchange
Notes are proposed to be
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issued, under an indenture dated as of February 20, 2003 (the "INDENTURE"),
among the Issuers, Burns Philp and certain subsidiaries of Burns Philp (together
with the Company, the "GUARANTORS") and Wells Fargo Bank, National Association,
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 the Guarantors on a senior subordinated basis. The Indenture is an
exhibit to the Registration Statement.
For the purpose of this opinion, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents:
(i) the Indenture, containing the Guaranty, governed by the laws of New
York;
(ii) the minutes of the decisions adopted by the Company's sole shareholder,
i.e., the Dutch corporation BURNS PHILP NETHERLANDS EUROPEAN HOLDINGS,
BV (the "COMPANY'S SOLE SHAREHOLDER"), dated January 29, 2003 and of
the resolutions approved by the Company's Board of Directors dated
January 29, 2003 (the "MINUTES");
(iii) an excerpt (Nota Simple Informativa) of the Mercantile Registry
(Registro Mercantil) of Cordoba, Spain, dated February 26, 2004,
relating to the Company (the "EXCERPT"); and
(iv) a Certificate dated March 5, 2004 issued on behalf of Burns Philp, the
Issuers, the Company and the Company's Sole Shareholder relating to (a)
the ownership of all of the Company's shares by the Company's Sole
Shareholder and due exercise of all voting rights attaching to such
shares and the decisions adopted by the Company's Sole Shareholder; (b)
the powers of attorney, appointments or authorizations granted by the
Company or the Company's Sole Shareholder not being revoked; (c) the
filing of all necessary documents at the Spanish Mercantile Registry
(Registro Mercantil) at the date of the Excerpt; (d) the Company and
the Company's Sole Shareholder not revoking or amending any resolutions
in the Minutes or matters in the Excerpt; and (e) there being no
documents or instruments that would affect or modify conclusions
contained herein,
together (the "RELEVANT DOCUMENTS"), as in our judgment are necessary or
appropriate to enable us to render the opinion expressed below. In rendering
such opinion, we have relied as to factual matters upon the representations,
warranties and other statements made in the Relevant Documents.
In rendering the opinions expressed below, we have assumed, without any
independent verification:
(a) the genuineness of all signatures, stamps and seals appearing in the
Relevant Documents;
(b) the authenticity of all documents submitted to us as originals;
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(c) the conformity to the originals and the completeness of the Relevant
Documents submitted to us as conformed, facsimile or photostatic
copies;
(d) that all representations in the Relevant Documents are true, correct,
accurate and complete when made and will remain true and accurate;
the power and authority to execute of, and the due execution by, all
parties to the Relevant Documents (except to the extent expressly
opined to herein in respect of the Company), that such execution will
bind such parties and that the performance thereof is within the
capacity and powers of each of the parties thereto (except to the
extent expressly opined to herein in respect of the Company);
that a search in respect of matters which are stated in the Spanish
competent Mercantile Registry (Registro Mercantil) since the date of
the Excerpt would not reveal any circumstances which would affect the
conclusions contained herein;
(e) that there are no matters or events of a factual nature within the
scope of our inquiry not disclosed to us which would affect the
conclusions contained herein;
(f) that neither the Old Notes nor the Exchange Notes shall under any
circumstances be issued, offered, sold, purchased, repurchased or
exchanged in Spain, and that any securities whatsoever that are issued
under the Indenture shall not exceed U.S. $210.0 million.
The opinions here rendered are limited to matters of Spanish law. We do
not represent ourselves to be familiar with the laws of any jurisdiction other
than Spain as they stand at present and, therefore, we express no opinion on any
question arising under any laws other than the laws of Spain.
Our involvement in the transaction described herein has been limited to
our role as special Spanish legal counsel to the Company in connection with the
Spanish legal issues relating thereto and, furthermore, we assume no obligation
to advise either you or any other party of changes of law or facts that could
occur after the date of the opinion, even though the change may affect the legal
analysis or conclusions given in this opinion.
Based upon the foregoing, and subject to the further exceptions,
limitations, qualifications and assumptions set forth herein, it is our opinion
that:
1. The Company is duly incorporated and is an existing corporation
(sociedad anonima) under the laws of Spain.
2. The Company has full power and authority, and all necessary consents
and approvals to execute and perform its obligations under the
Indenture.
3. The execution by the Company of, and the performance by the Company of
its obligations under, the Indenture has been authorized by all
requisite corporate action on the part of the Company.
4. The Indenture was signed by someone who had actual authority to sign it
under the corporate authorizations of the Company.
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5. The execution by the Company of, and performance by the Company of its
obligations under, the Indenture, and compliance by the Company with
all of the provisions thereof, does not and will not result in a breach
or violation of (a) any of the terms and provisions of, or constitute a
default under, any statute, any rule or any regulation of any
governmental agency or body of Spain, or (b) the by-laws of the
Company.
The opinions expressed above are subject to the following
qualifications:
(i) Our opinions expressed above are subject to the effects and result of
the operations involved in any applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws
relating to or affecting creditors' rights generally and to general
equitable principles.
(ii) Pursuant to Article 6 of the Spanish Civil Code, voluntary waiving of
rights recognized by law shall not be valid if deemed to be contrary to
public policy (orden publico), or made to the prejudice of a third
party; furthermore, under Spanish law, waiver or disposition of future
rights not yet existing or of pure expectations could be deemed null
and void, unless ratified at the time of the existence of the rights.
(iii) Performance by the Company of its obligations under the Indenture may
require that certain notifications or filings be made to or with the
Spanish relevant exchange control and/or tax authorities and certain
formalities be complied with pursuant to Spanish law in connection with
any payments that the Company may be required to make thereunder. Under
Spanish law, banking, financial, investment services and securities
activities are legally restricted to authorized credit entities and
other financial institutions.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name 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 or the rules and regulations of
the Commission thereunder. Dewey Ballantine LLP may rely on our opinion with
respect to matters of Spanish law for purposes of its opinion filed as an
exhibit to the Registration Statement, as if our opinion had been addressed to
it.
Very truly yours,
/s/ Teresa Paz-Ares
Teresa Paz-Ares
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