(BLAKE, CASSELS & GRAYDON LLP LETTERHEAD)
Exhibit 5.4
Box 25, Commerce Court West
199 Bay Street
Toronto, Ontario, Canada
M5L 1A9
March 5, 2004
Burns Philp Food Limited Deliveries: 28(th) Floor
31 rue Airlie Telephone: 416.863.2400
LaSalle, Quebec Facsimile: 416.863.2653
H8R 1Z8 www.blakes.com
RE: BURNS PHILP FOOD LIMITED AS GUARANTOR OF BURNS PHILP CAPITAL
PTY LIMITED AND BURNS PHILP CAPITAL (U.S. ) INC. US$210 MILLION
10 3/4 % SERIES B SENIOR SUBORDINATED NOTES DUE 2011 (SECURITIES
AND EXCHANGE COMMISSION FILE NO. 333-107085)
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 "AUSTRALIAN ISSUER") and Burns Philp
Capital (U.S.) Inc., a Delaware corporation (the "U.S. ISSUER") (together the
Australian Issuer and the U.S. Issuer being the "ISSUERS"), in the aggregate
principal amount of US$210 million, of 10-3/4% Series B Senior Subordinated
Notes due 2011 (the "NOTES"), and the guarantee of the Notes (the "GUARANTY") by
the Corporation, pursuant to the Indenture (together with the Guaranty included
therein, the "INDENTURE") dated February 20, 2003 among the Issuers, the
guarantors named therein (the "GUARANTORS") and Wells Fargo Bank, National
Association, 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
February 20, 2003 (the "REGISTRATION RIGHTS AGREEMENT") among the Issuers, the
Guarantors, and Credit Suisse First Boston LLC, as the initial purchaser (the
"INITIAL PURCHASER").
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 dated February 12, 2003 among the
Issuers, the Guarantors, and the Initial Purchaser (the "PURCHASE AGREEMENT").
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;
(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 July 16, 2003;
(v) the Power of Attorney, dated January 14, 2003, 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 Freehills attached as Schedule A hereto to confirm
that (a) Burns Philp Food Overseas Holdings Limited (the "SOLE SHAREHOLDER") has
the corporate power to enter into and perform its obligations under the
Unanimous Shareholder Declarations of the Sole Shareholder of the Corporation,
dated May 9, 2003 and May 26 (the "DECLARATIONS"), and the Resolutions of the
Sole Shareholder of the Corporation, dated May 9, 2003 and May 26, 2003 (the
"Resolutions"), which Resolutions and Declarations are attached as Schedules to
the Officer's Certificate; has taken all necessary corporate action to authorise
or ratify the execution of, and the performance of its obligations under, the
Declarations and Resolutions; and has validly executed, or ratified its
execution of, the Declarations and Resolutions; and (b) the execution or
ratification by the Sole Shareholder of, and the performance by the Sole
Shareholder of its obligations under, the Declarations and Resolutions does not
and will not result in a breach or violation by the Sole Shareholder of any of
the terms or provisions of the constitution of the Sole Shareholder.
We have relied on the opinion of Thompson Coburn LLP attached
as Schedule B hereto to confirm that the law of the State of Missouri imposes no
formalities upon the execution and delivery, in Missouri, of the Power of
Attorney, other than as set forth in such opinion. To the extent that the
opinion of Thompson Coburn 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.
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 Declarations 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 an exhibit
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.
Yours truly,
/s/ Blakes, Cassels & Graydon LLP
ATTACHMENTS
Schedule A - Opinion of Freehills
Schedule B - Opinion of Thompson Coburn LLP
SCHEDULE A
Attached.
[FREEHILLS LETTERHEAD]
5 March 2004 Our ref Shaun McGushin
Doc no Sydney\004595759
Burns, Philp & Company Limited
Burns Philp Capital Pty Limited
Each Subsidiary Guarantor listed in Schedule 1
Level 23
56 Pitt Street
SYDNEY NSW 2000
Dear Sirs
BURNS PHILP CAPITAL PTY LIMITED - ISSUE OF US$210 MILLION SENIOR SUBORDINATED
SECURITIES DUE 2011
We have acted as Australian legal advisors to Burns, Philp & Company Limited
(ACN 000 000 359) (PARENT) in connection with an offer to exchange (EXCHANGE
OFFER) by Burns Philp Capital Pty Limited (ACN 100 768 803) (ISSUER) and the
Co-issuer of US$210 million Senior Subordinated Notes due 2011 (EXCHANGE NOTES)
which are being registered under the Securities Act of 1933 of the United States
of America (SECURITIES ACT) for its existing Senior Subordinated Notes due 2011
(OLD NOTES), as described in the Registration Statement on Form F-4 relating to
the Exchange Offer (REGISTRATION STATEMENT) initially filed with the United
States Securities and Exchange Commission (COMMISSION) on 16 July 2003. The Old
Notes were issued and the Exchange Notes are proposed to be issued under an
Indenture dated 20 February 2003 between the Issuer, the Co-issuer, the Parent,
certain "Subsidiary Guarantors" as defined therein and Wells Fargo Bank,
National Association (INDENTURE). We note that our role in connection with the
Exchange Offer has been limited to the rendering of this opinion (together with
two other opinions dated on or about the same date as this opinion to be filed
with the Registration Statement) and that we have not been involved in the
preparation of the Registration Statement and make no comment on it.
1 DOCUMENTS
We have searched the records referred to in paragraph 1(f) and examined
originals, or copies certified or otherwise identified to our satisfaction, of
such documents, corporate records and other instruments as we have deemed
necessary or appropriate for purposes of this opinion, including:
(a) a copy of three "Unanimous Shareholders Declarations" dated 14 January
2003, 28 January 2003 and 13 February 2003 addressed to Burns Philp Food
Limited and signed on behalf of the Relevant Party;
(b) a copy of two "Resolutions of the Sole Shareholder of Burns Philp Food
Limited" dated 14 January 2003, 28 January 2003 and 13 February 2003 and
signed on behalf of the Relevant Party;
(c) a copy of minutes of meeting or written resolutions of the board of
directors of the Relevant Party dated 14 January 2003, 28 January 2003 and
17 February 2003;
(d) an original certificate signed by an officer of the Relevant Party dated 5
March 2004 and the attachments referred to in it;
(e) a certified copy of the constitution of the Relevant Party;
(f) documents arising from on-line searches of records at the ASIC made on 4
March 2004 and 5 March 2004 in relation to the Relevant Party; and
(g) a certified extract from the register of members of the Relevant Party.
2 DEFINITIONS
In this Opinion expressions defined in this Opinion have the meanings given and:
(a) ASIC means the Australian Securities and Investments Commission;
(b) AUSTRALIA means the Commonwealth of Australia;
(c) CO-ISSUER means Burns Philp Capital (U.S.) Inc.;
(d) COMPANY EXTRACT means the documents referred to in paragraph 1(g);
(e) CORPORATIONS ACT means the Corporations Act 2001 (Cth);
(f) DOCUMENT means a document referred to in paragraphs 1(a) to (b) inclusive;
(g) RELEVANT JURISDICTION means, as the context requires, the State of New
South Wales and Australia;
(h) RELEVANT LAWS means the laws of the Relevant Jurisdictions;
(i) RELEVANT PARTY means Burns Philp Food Overseas Holdings Limited;
(j) RESOLUTION means a resolution of the board of directors of the Relevant
Party referred to in the documents referred to in paragraph 1(c);
(k) SECURITY has the meaning given in the Indenture.
3 OPINION
Based on the documents referred to in paragraph 1 and subject to the assumptions
and qualifications set out in this Opinion, we are of the opinion that:
(a) the Relevant Party is registered and validly existing under the laws of
the Relevant Jurisdictions;
(b) the Relevant Party has the corporate power to enter into and perform its
obligations under the Documents;
(c) the Relevant Party has taken all necessary corporate action to authorise
or ratify the execution of, and the performance of its obligations under,
the Documents;
(d) the Relevant Party has validly executed, or ratified its execution of, the
Documents; and
(e) the execution or ratification by the Relevant Party of, and the
performance by the Relevant Party of its obligations under, the Documents
does not and will not result in a breach or violation by the Relevant
Party of any of the terms or provisions of the constitution of the
Relevant Party.
4 ASSUMPTIONS
In this Opinion we have assumed the following matters, and we have not made any
independent investigation of, or enquiries in respect of, those matters:
(a) in relation to the Documents and each other document examined by us:
(1) all signatories, seals, dates, duty stamps and markings are
authentic;
(2) if a copy or a specimen, it conforms in all respects to the
original;
(3) it is accurate, complete and up-to-date;
(4) it has been duly authorised, executed and delivered by all parties
to it under, and its execution, delivery and performance by all
parties to it complies with, all applicable laws (other than, in
respect of a Relevant Party and its Document, the Relevant Laws);
(b) as of the date of the searches referred to in paragraph 1(g), all
information required by law to be notified to the ASIC in relation to the
Relevant Party (whether or not any period for notification had expired)
had been so notified, the records of the ASIC were in relation to the
Relevant Party accurate, complete and up-to-date and those records were
correctly recorded in the Company Extracts;
(c) in relation to the execution and performance by the Relevant Party of the
Documents, including each Resolution, the directors, secretaries and
agents of the Relevant Party properly performed their duties to the
Relevant Party;
(d) the Relevant Party is solvent at the time of, and after giving effect to,
the entry into of the Documents; and
(e) the correctness of each statement, determination or resolution set out in:
(1) the certificate referred to in paragraph 1(d);
(2) the documents referred to in paragraph 1(c).
5 QUALIFICATIONS
This Opinion is subject to the following qualifications:
(a) this Opinion relates only to the laws of the Relevant Jurisdictions in
force at the time of giving this Opinion. We neither express nor imply any
opinion as to, and have not made any investigation of, the laws of any
other jurisdiction. We are under, and assume, no obligation to inform any
person of, or of the effect of, any future changes to those or any other
laws;
(b) we express no opinion as to the enforceability of the Documents;
(c) in rendering this Opinion we have construed the Documents and made the
statements set out in this Opinion as lawyers admitted to practice in the
State of New South Wales without reference to the meaning or effect they
may have in any other jurisdiction or anything other than their plain
words.
This Opinion is strictly limited to the matters stated in it and does not apply
by implication to other matters.
This Opinion is only given:
(a) in respect of and is limited to the Relevant Laws as applied by the courts
of the Relevant Jurisdictions which are in force at 9.00 am Sydney time on
the date of this letter;
(b) on the basis that it will be governed by and construed in accordance with
the laws of the Relevant Jurisdictions.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to being named in the prospectus included therein as
having provided this opinion. 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.
Yours faithfully
FREEHILLS
/s/ Shaun McGushin
Shaun McGushin
Partner
SCHEDULE B
Attached.
[THOMPSON COBURN 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 Missouri counsel to Burns, Philp &
Company Limited (the "Parent") and its Canadian subsidiary, Burns Philp Food
Limited (the "Corporation") in connection with the issuance by Burns Philp
Capital Pty Limited and Burns Philp Capital (U.S.) Inc. (collectively, the
"Issuers") of 10-3/4% Series B Senior Subordinated Notes due 2011 in the
aggregate principal amount of US$210 million (the "Notes") and the guarantee of
the Notes by the Corporation, pursuant to the Indenture dated February 20, 2003
among the Issuers, the guarantors named therein (the "Guarantors") and Wells
Fargo Bank, National Association, as trustee. Capitalized terms used in this
letter without definition have the meanings ascribed to them 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 the Corporation, rendered pursuant to
Item 601(b)(5) of Regulation S-K 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 February 20, 2003 among the Issuers, the
Guarantors and Credit Suisse First Boston LLC, as the initial purchaser.
We have relied, for purposes of the opinion expressed herein,
upon a certificate of an officer of the Corporation to the effect that the Power
of Attorney was executed and delivered in the State of Missouri.
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 Missouri did not on the date(s) the Power of Attorney was
executed and delivered by the Corporation, impose, nor have there been any
subsequent changes which would have the effect of retroactively imposing, any
formalities upon the execution and delivery, in Missouri, of the Power of
Attorney, other than the signing of the Power of Attorney on behalf of the
Corporation 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 the
Corporation of the Power of Attorney.
Our opinions are limited to the law of the State of Missouri.
We express no opinion with respect to the enforceability of the Power of
Attorney under Missouri 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 Exchange Offer Registration Statement on Form F-4 (File No. 333-107085)
as amended or supplemented, initially filed with the SEC on July 16, 2003, 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 SEC
thereunder.
Very truly yours,
/s/ Thompson Coburn LLP