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
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5 March 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 Capital Pty Limited, a corporation
incorporated under the laws of the Australian Capital
Territory, and Burns Philp Capital (U.S.) Inc., a Delaware
corporation (together the "ISSUERS"), of US$210,000,000 in
aggregate principal amount of 10-3/4% Senior Subordinated
Notes due 2011 (the "NOTES") pursuant to an indenture dated 20
February 2003 among the Issuers, the Company and the other
guarantors named therein (the "GUARANTORS") and Wells Fargo
Bank, National Association, 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).
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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).
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 four meetings of the board
of directors of the Company held on 14 January 2003, 27
January 2003, 7 February 2003 and 17 February 2003,
respectively 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 17 February 2003 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
meetings 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 30 December 2002 (and up-dated on
the date of this opinion) (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 17 February 2003 and
executed by the Company (the "POWER OF ATTORNEY");
(h) INDENTURE: the Indenture executed by, amongst others, the
Company and the Issuers;
(i) PURCHASE AGREEMENT: a purchase agreement dated 12 February
2003 (the "PURCHASE AGREEMENT") among the Issuers, the
Guarantors and Credit Suisse First Boston LLC, as the initial
purchaser (the "INITIAL PURCHASER");
(j) REGISTRATION RIGHTS AGREEMENT: an agreement relating to, among
other things, the filing by the Issuers of an exchange offer
registration statement with the Securities and Exchange
Commission within 120 days of the date of issue of the Notes
dated 20 February 2003 among the Issuers, the Guarantors and
the Initial Purchaser (the "REGISTRATION RIGHTS AGREEMENT"),
which exchange offer registration statement was filed with the
Securities and Exchange Commission on 16 July 2003 under file
number 333-107085; and
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(k) GLOBAL NOTE: the form of the global note to be issued by the
Issuers 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.
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 and corporate powers) in
relation to the Company means that it is
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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.
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.
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(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
(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