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: 9-1/2% Series B Senior Notes Due 2010
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.$100,000,000
aggregate principal amount of 9-1/2% Series B Senior Notes due 2010 (the
"Exchange Notes") which are being registered under the Securities Act of 1933,
as amended (the "Securities Act"), for their existing 9-1/2% Senior Notes due
2010 (the "Old Notes"), as described in the Registration Statement on Form F-4
(File No. 333-107460) relating to the Exchange Offer (as amended or
supplemented, the "Registration Statement"), initially filed on July 30, 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 June
16, 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 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