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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$ 210 MILLION
10-3/4% SENIOR SUBORDINATED NOTES DUE 2011
- EXHIBIT TO THE REGISTRATION STATEMENT: FILE NO: 333-107085,
INITIAL FILING DATE: 16 JULY 2003
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, and Burns Philp Capital (U.S.) Inc., a Delaware corporation (the
"ISSUERS"), of US$ 210 million in the aggregate principal amount of 10 3/4%
Senior Subordinated Notes due 2011 (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
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("BPDE") (BPD, BPDG, DHW and BPDE collectively the "COMPANIES") pursuant to the
Indenture (together with the Guaranty included therein, the "INDENTURE") dated
20 February 2003 among the Issuers, the guarantors named therein (the
"GUARANTORS") and Wells Fargo Bank, National Association, as trustee.
1. DOCUMENTS REVIEWED
In rendering this opinion, we have examined the following documents:
a) the 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 dated 14 January 2003, a
copy of a confirmatory shareholders' resolution dated 29
January 2003 and a copy of a supplemental resolution dated 17
February 2003 each of BPD;
g) a copy of a shareholders' resolution dated 13 January 2003, a
copy of a confirmatory shareholders' resolution dated 29
January 2003 and a copy of a supplemental resolution dated 17
February 2003 each of BPDG;
h) a copy of a shareholders' resolution dated 13 January 2003, a
copy of a confirmatory shareholders' resolution dated 29
January 2003 and a copy of a supplemental resolution dated 17
February 2003 each of DHW;
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i) a copy of a shareholders' resolution dated 3 February 2003 and
a copy of a supplemental resolution dated 17 February 2003
each of BDPE;
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;
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 30 January 2003
and a confirmation of these powers of attorney by BPD, BPDG
and DHW dated 17 February 2003;
o) a power of attorney of BPDE dated 3 February 2003 and a
confirmation of this power of attorney by BPDE dated 17
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 and their confirmations referred
to in lit. n) and o) above and the Indenture 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
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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;
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 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.
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b) The Indenture 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.
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 was executed.
c) The execution, delivery and performance of the 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 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 if it has been granted during the
last three months preceding the insolvency application, or at
any time thereafter.
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b) This opinion shall be governed by, and construed in accordance
with, the laws of the Federeal Republic of Germany.
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 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 any of its
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. 333-107085 filed with the Securities and Exchange
Commission by the Issuers 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