Exhibit 5.1
September _____, 2003
(415) 393-8300 C 22632-00030
(415) 986-5309
Del Monte Corporation
Del Monte Foods Company
One Market @ The Landmark
P.O. Box 193575
San Francisco, California 94105
Re: Exchange of 8-5/8% Senior Subordinated Notes due 2012
Ladies and Gentlemen:
We have acted as special counsel for Del Monte Corporation, a Delaware
corporation (the "Company"), Del Monte Foods Company, a Delaware corporation
("Holdings"), Star-Kist Samoa, Inc., a California corporation ("Samoa"),
Star-Kist Mauritius, Inc., a Delaware corporation ("Mauritius"), Marine Trading
Pacific, Inc., a Delaware corporation ("Marine Trading"), and Mike Mac IHC,
Inc., a Delaware corporation ("Mike Mac," and together with Samoa, Mauritius and
Marine Trading, the "Subsidiary Guarantors") (the Subsidiary Guarantors together
with the Company and Holdings, the "Registrants"), in connection with the
Company's offer (the "Exchange Offer") to issue and exchange (the "Exchange")
all of its Series B 8-5/8% Senior Subordinated Notes due 2012 (the "Exchange
Notes"), for a like amount of outstanding 8-5/8% Senior Subordinated Notes due
2012 issued December 20, 2002 (the "Outstanding Notes"). The Exchange Notes will
be entitled to the benefits of a subordinated guaranty pursuant to the terms of
the Indenture (as defined below) and the notation thereof indorsed on the
Exchange Notes by Holdings (the "Holdings Guarantee") and a senior subordinated
guaranty pursuant to the terms of the Indenture (as defined below) and the
notation thereof indorsed on the Exchange Notes by the Subsidiary Guarantors
(the "Subsidiary Guarantees" and together with the Holdings Guarantee, the
"Guarantees"). Holdings and the Subsidiary Guarantors are collectively defined
herein as the "Guarantors". The Exchange Notes will be issued under the
Indenture dated December 20, 2002, as supplemented by the Supplemental Indenture
dated as of December 20, 2002 (as so supplemented, the "Indenture"), among the
Company, Holdings, the Subsidiary
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Guarantors and The Bank of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms not otherwise defined herein shall have the
meanings set forth in the Indenture.
We have examined, among other things, (i) the Registration Statement on
Form S-4 (File No. 333-107830) (the "Registration Statement") filed by the
Registrants with the Securities and Exchange Commission ("Commission") to
register under the Securities Act of 1933, as amended, the Exchange Offer and
the Exchange of the Exchange Notes and the Guarantees; (ii) the Indenture; (iii)
the form of the Exchange Notes; and (iv) the form of the Guarantees. The
Indenture, the Exchange Notes and the Guarantees are sometimes referred to
herein collectively as the "Documents". We have also made such other inquiries
and examined, among other things, originals or copies, certified or otherwise
identified to our satisfaction, of such records, agreements, certificates,
instruments and other documents as we have considered necessary or appropriate
for the purposes of this opinion.
In rendering this opinion, we have assumed:
(a) Each party to the Documents (i) has all requisite power and authority
to execute, deliver and perform its obligations thereunder, (ii) has duly
authorized, by all necessary action on such party's part, the execution and
delivery of each such Document and the performance of such obligations and (iii)
has duly executed and delivered each such Document;
(b) The signatures on all documents examined by us are genuine, all
individuals executing such documents had all requisite legal capacity and
competency and the documents submitted to us as originals are authentic and the
documents submitted to us as certified or reproduction copies conform to the
originals;
(c) The issuance and redelivery of the Exchange Notes will not, at any
time, violate any applicable law or result in a violation of any provision or
any instrument or agreement then binding on the Registrants or any restriction
imposed by any court or governmental body having jurisdiction over the
Registrants;
(d) Each of the Registrants, other than Samoa, is a validly existing
corporation under the laws of the State of Delaware. Samoa is a validly existing
corporation under the laws of the State of California.
Based upon the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations contained herein, we are
of the opinion that:
1. The Exchange Notes, when executed and authenticated in accordance
with the provisions of the Indenture and issued and delivered in
exchange for the Outstanding Notes in the manner described in the
Registration Statement, will constitute legal, valid and binding
obligations of the Company.
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2. When the Exchange Notes are duly executed and authenticated, and the
Guarantees are indorsed thereon, and the Exchange Notes as so
indorsed are issued and delivered, the Guarantees will constitute
legal, valid and binding obligations of the respective Guarantors.
The foregoing opinions are subject to the following exceptions,
qualifications and limitations:
A. We are admitted to practice in the State of New York and express no
opinion as to matters governed by any laws other than the laws of the State of
New York and the federal laws of the United States of America. This opinion is
limited to the effect of the present state of the laws of the State of New York
and of the United States of America and the facts as they presently exist. We
assume no obligation to revise or supplement this opinion in the event of future
changes in such laws or the interpretations thereof or such facts.
B. Our opinions are subject to (i) the effect of any bankruptcy,
insolvency, reorganization, moratorium, arrangement or similar laws affecting
any rights and remedies of creditors generally (including, without limitation,
the effect of statutory or other laws regarding fraudulent transfers or
preferential transfers) and (ii) general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance, injunctive relief or
other equitable remedies regardless of whether enforceability is considered in a
proceeding in equity or at law.
C. We express no opinion as to the effect on the enforceability of the
Guarantees against Holdings and the Subsidiary Guarantors of any facts or
circumstances that would constitute a defense to the obligation of a surety,
unless such defense has been waived effectively by Holdings or the Subsidiary
Guarantors.
D. Our opinions are subject to (i) the effectiveness of any waiver
(whether or not stated as such) under the Documents of, or any consent
thereunder relating to, any unknown future rights or the rights of any party
thereto existing, or duties owing to it, as a matter of law; (ii) the
effectiveness of any waiver (whether or not stated as such) contained in the
Documents of rights of any party, or duties owing to it, that is broadly or
vaguely stated or does not describe the right or duty purportedly waived with
reasonable specificity; (iii) provisions relating to indemnification,
exculpation or contribution, to the extent such provisions may be held
unenforceable as contrary to public policy or federal or state securities laws
or due to the negligence or willful misconduct of the indemnified party; (iv)
any provisions of the Documents that may be construed as penalties or
forfeitures; or (v) the effectiveness of any covenants (other than covenants
relating to the payment of principal, interest, make whole premium, indemnities
and expenses) to the extent they are construed to be independent requirements as
distinguished from conditions to the declaration or occurrence of a default or
any event of default.
Del Monte Corporation
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E. We have assumed that there are no agreements or understandings between
or among the parties to the Documents or third parties that would expand, modify
or otherwise affect the terms of the Documents or the respective rights or
obligations of the parties thereunder.
This opinion is rendered solely for your benefit and the benefit of those
persons participating in the Exchange Offer. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement, and we further consent
to the use of our name under the caption "Legal Matters" in the prospectus
forming a part of said Registration Statement. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, and other person or entity or any purpose.
Very truly yours,
GIBSON, DUNN & CRUTCHER LLP