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: 10-3/4% Series B Senior Subordinated Notes Due 2011
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 and Burns
Philp Capital (U.S.) Inc., a Delaware corporation and wholly owned subsidiary of
the Company (such subsidiaries, together, the "Co-Issuers"), U.S.$210,000,000
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"), for their existing 10-3/4% Senior
Subordinated Notes due 2011 (the "Old Notes"), as described in the Registration
Statement on Form F-4 (File No. 333-107085) relating to the Exchange Offer (as
amended or supplemented, the "Registration Statement"), initially filed on July
16, 2003 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
February 20, 2003, and amended by Supplemental Indentures dated as of June 30,
2003, August 8, 2003 and February 11, 2004 (collectively, the "Indenture"),
among the Issuer, the Company and the Subsidiary 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 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, Freehills, Blake, Cassels
& Graydon, LLP, Perez Bustamente & Ponce, Freshfields Bruckhaus Deringer,
Bonilla,
Burns, Philp & Company Limited
March 5, 2004
Page 3
Montano & Toriello, Clifford Chance LLP, 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