EXHIBIT 5.1
[Letterhead of Milbank, Tweed, Hadley & McCloy LLP]
[Date]
Seminis Vegetable Seeds, Inc.
Seminis, Inc.
Petoseed International, Inc.
PGI Alfalfa, Inc.
Baxter Seed Co., Inc.
2700 Camino del Sol
Oxnard, CA 93030
Ladies and Gentlemen:
We have acted as New York counsel to Seminis Vegetable Seeds,
Inc. (the "Company"), Seminis, Inc. (the "Parent"), Petoseed International, Inc.
(the "California Subsidiary"), PGI Alfalfa, Inc. ("PGI") and Baxter Seed Co.,
Inc. ("Baxter", and together with the California Subsidiary and PGI, the
"Subsidiary Guarantors", and the Subsidiary Guarantors, together with the
Parent, the "Guarantors") in connection with the registration under the
Securities Act of 1933, as amended, (the "Act") on Form S-4 filed with the
Securities and Exchange Commission (the "Registration Statement"), of
$140,000,000 in aggregate principal amount of 10 1/4% Senior Subordinated Notes
due 2013 (the "Exchange Notes") of the Company, and the related guarantees of
the Exchange Notes (the "Exchange Guarantees") by the Guarantors to be issued in
exchange for an equal aggregate principal amount of the Company's outstanding
10 1/4% Senior Subordinated Notes due 2013 issued on January 23, 2004 (the
"Original Notes") and the related guarantees pursuant to (i) the Indenture,
dated as of September 29, 2003 (the "Indenture"), between the Company, the
Guarantors and Wells Fargo Bank, National Association, as trustee (the
"Trustee"), and (ii) the Registration Rights Agreement, dated as of January 23,
2004 (the "Registration Rights Agreement"), among the Company, the Guarantors
and Citigroup Global Markets Inc., CIBC World Markets Corp., Rabo Securities
USA, Inc. and Harris Nesbitt Corp., as initial purchasers of the Original Notes.
In rendering the opinions expressed below, we have examined such
corporate records, certificates and other documents, and such questions of law,
as we have considered necessary or appropriate for the purposes of this opinion.
In our examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals and the conformity
with authentic original documents of all documents submitted to us as copies. As
to various questions of fact material to such opinions, we have, when relevant
facts were not independently established, relied upon certificates of officers
and representatives of the Company and the Guarantors and public officials,
statements contained in the Registration Statement and other documents as we
have deemed necessary as a basis for such opinions.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. The Exchange Notes, when executed, delivered and authenticated
in accordance with the provisions of the Indenture and when exchanged by
the holders thereof for the Original Notes in the manner contemplated by
the Registration Statement and in accordance with the terms of the
Registration Rights Agreement and the Indenture, will constitute valid
and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to the qualification
that enforceability of the obligations of the Company thereunder may be
limited by (i) bankruptcy, fraudulent conveyance or transfer,
insolvency, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, and (ii) the application of
general principles of equity (regardless of whether considered in a
proceeding at law or in equity) including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of good faith,
reasonableness, fair dealing and materiality.
2. Each of the Exchange Guarantees to be endorsed on the Exchange
Notes, assuming the due authorization, execution and delivery thereof by
each of the parties thereto (other than the Parent and the California
Subsidiary), when duly endorsed on the Exchange Notes by each of the
Guarantors in accordance with the provisions of the Indenture and when
the Exchange Notes are executed, delivered and authenticated in
accordance with the provisions of the Indenture and exchanged by the
holders thereof for the Original Notes in the manner contemplated by the
Registration Statement and in accordance with the terms of the
Registration Rights Agreement and the Indenture, will constitute valid
and legally binding obligations of each of the Guarantors, enforceable
against each of the Guarantors in accordance with their terms, subject
to the qualification that (i) enforceability of the obligations of each
of the Guarantors thereunder may be limited by (x) bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, and (y) the application of general principles of
equity (regardless of whether considered in a proceeding at law or in
equity) including, without limitation, (a) the possible unavailability
of specific performance, injunctive relief or any other equitable remedy
and (b) concepts of good faith, reasonableness, fair dealing and
materiality, and (ii) the waiver of defenses by the Guarantors in such
guarantees may be limited by principles of public policy in New York.
We express no opinion as to (i) the applicability to the
obligations of any Subsidiary Guarantor under the applicable Guarantee of such
Subsidiary Guarantor of (or the enforceability of such obligations under)
Section 548 of Chapter 11 of Title 11 of the United
States Code, as amended, Article 10 of the New York Debtor and Creditor Law, as
amended, or any other provision of law relating to fraudulent conveyances,
transfers or obligations or (ii) any provisions of the law of the jurisdiction
of incorporation of any Subsidiary Guarantor restricting dividends, loans or
other distributions by a corporation or other business entity or association for
the benefit of its stockholders or similar persons.
To the extent that the obligations of the Company and the
Guarantors under the Exchange Notes, Exchange Guarantees and the Indenture, as
applicable, may be dependent upon such matters, we have assumed for purposes of
this opinion that (i) the Trustee is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization; (ii) the
Trustee has been duly qualified to engage in the activities contemplated by the
Indenture; (iii) the Indenture has been duly authorized, executed and delivered
by the Trustee and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms; (iv) the
Trustee is in compliance generally and with respect to acting as Trustee under
the Indenture, with all applicable laws and regulations; and (v) the Trustee has
the requisite organizational and legal power and authority to perform its
obligations under the Indenture.
The foregoing opinions are limited to matters involving the
Federal laws of the United States of America, the Delaware General Corporation
Law, the California General Corporation Law and the law of the State of New
York, and we do not express any opinion as to the laws of any other
jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to us under the heading
"Validity of the Notes" in the Prospectus contained in such Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act.
This opinion is furnished to you in connection with the filing of
the Registration Statement, and is not be used, circulated, quoted or otherwise
relied on for any other purpose.
Very truly yours,