Exhibit 5.7
[XXXXXXXX XXXXXX LLP LETTERHEAD]
TAK/JDB/LVDW/B0689-16 5 March 2004
Xxxxx Xxxxx Treasury (Europe) B.V.
Xx Xxxxxxxxx 0 OFFICIA I
1083 HJ Amsterdam
The Netherlands
Xxxxx Xxxxx Netherlands European Holdings B.V.
Xx Xxxxxxxxx 0 OFFICIA I
1083 HJ Amsterdam
The Netherlands
(together the "COMPANIES" and each a "COMPANY")
Dear Sirs,
XXXXX XXXXX TREASURY (EUROPE) B.V.
XXXXX XXXXX NETHERLANDS EUROPEAN HOLDINGS B.V.
AS GUARANTORS OF XXXXX XXXXX CAPITAL PTY LIMITED AND XXXXX XXXXX
CAPITAL (U.S.) INC. IN RESPECT OF A MAXIMUM AMOUNT OF
USD 100,000,000 SENIOR NOTES DUE 2010
I. DESCRIPTION OF TRANSACTION / SCOPE OF OUR ROLE
We have acted as special Dutch legal counsel (xxxxxxxx) in The Netherlands in
connection with:
(i) 9-1/2% Series B Senior Notes due 2010 of Xxxxx Xxxxx Capital Pty
Limited and Xxxxx Xxxxx Capital (U.S.) Inc. (the "NOTES");
(ii) an e-mailed copy of an executed indenture dated as of 16 June 2003 (the
"INDENTURE") and made between Xxxxx Xxxxx Capital Pty Limited, an
Australian corporation and Xxxxx Xxxxx Capital (U.S.) Inc, a Delaware
company as co-issuer (together the "ISSUERS" and each an "ISSUER"),
Xxxxx, Xxxxx & Company Limited and the guarantors named therein as
Subsidiary Guarantors and the Xxxxx Fargo Bank, National Association as
trustee (the "TRUSTEE") regarding the Notes issued by the Issuers; and
(iii) certain documents in relation thereto listed in the annex hereto (the
"ANNEX").
We understand that the registration under the United States Security Act of
1933, as amended (the "SECURITIES ACT") of a proposed exchange offer (the
"EXCHANGE OFFER") of 9 1/2% Series B Senior Notes due 2010 guaranteed by,
amongst others, the Companies (the "EXCHANGE NOTES"), has been sought, in
connection with which a Form F-4 registration statement under the Securities Act
of 1933 relating to the Exchange Notes (the "REGISTRATION STATEMENT") has been
filed with the SEC on 30 July 2003 with File No. 333-107460.
This opinion is given solely in connection with the registration of the Exchange
Notes under the Securities Act. However, we hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the references to us
under the heading "Legal Matters". 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 Securities Act.
Unless the context requires otherwise, capitalised terms used herein without
definition shall have the same meanings ascribed to them in the Indenture,
Registration Statement and in the Annex.
Headings in this opinion are for ease of reference only and shall not affect the
interpretation hereof.
We have reviewed but have not been involved in structuring, drafting or
negotiating the Indenture.
In arriving at the opinions expressed below we have examined and relied upon the
documents referred to above and in the Annex and such other documents as we
deemed relevant.
The Indenture is expressed to be governed by the laws of the State of New York.
As Dutch lawyers we are not qualified to assess the meaning and consequences of
the terms of the Indenture under any law other than Netherlands law; in
particular, we have made no investigation into the laws of the State of New York
as a basis for the opinion expressed hereinafter and do not express or imply an
opinion thereon. Accordingly, our review of the Indenture has been limited to
the terms of such documents as they appear on the face thereof without reference
to (i) the general body of law incorporated into or made applicable to the
Indenture by the choice of law clause contained therein or (ii) provisions and
regulations expressed to be applicable thereto, by reference, incorporation or
otherwise.
II. ASSUMPTIONS
In examining and in describing the documents listed above and in the Annex, and
in giving this opinion we have, with your permission, assumed:
POWER, CAPACITY AND AUTHORITY; INCORPORATION, EXISTENCE AND STANDING;
COMPLIANCE
(i) the power, capacity (corporate and other) and authority of all parties
(other than the Companies) to enter into the Indenture and to perform
their respective obligations thereunder and that the Indenture is or
will be (where appropriate) duly authorised, executed and delivered by
all parties thereto (other than the Companies) and create valid and
legally binding obligations for all such parties as a matter of
applicable law (if other than Netherlands law on which we opine);
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(ii) that each party to any document (other than the Companies) is duly
incorporated and organised, validly existing and in good standing
(where such concept is legally relevant) under the laws of its
jurisdiction of incorporation and of the jurisdiction of its principal
place of business;
DOCUMENTS, ATTORNEYS
(iii) the genuineness of all signatures (including that of Xx. Xxxxxxx on
behalf of the Companies on the Indenture) on all documents or on the
originals thereof, the authenticity and completeness of all documents
submitted to us as originals and the conformity of conformed,
(photo)copy, e-mail, faxed or specimen documents to the originals
thereof;
(iv) the absence of any arrangements between one or more of the parties to
the Indenture and/or other persons which modify or supersede any of the
terms of any of the Indenture;
CORPORATE DOCUMENTS
(v) that all matters confirmed and certified in the Corporate Documents are
true and accurate;
MISCELLANEOUS
(vi) that the Notes, the Exchange Notes and any other securities will only
be issued by the Issuers, and will be issued, offered and sold in the
form set out in, on the terms and in accordance with the provisions of
the Indenture and that any Notes, Exchange Notes or securities will be
executed, authenticated and issued in the form scheduled to the
Indenture (if applicable); and
(vii) that any applicable law (other than those of The Netherlands on which
we opine) would not affect or qualify our opinion as set out below.
III. DOCUMENTS EXAMINED / RELIANCE
We have not been concerned with investigating or verifying the accuracy of any
matters set out in the Indenture (except those matters on which we have
expressly given our opinion). To the extent that the accuracy of such matters
and of any matters stated in any of the other documents listed above is relevant
to the contents of this opinion, we have assumed, with your permission, that
they were true and accurate when made and remain true and accurate.
The undersigned is not familiar with the operations of the Companies. Other than
to review the documents listed above and/or in the Annex, we have not examined
any contracts, instruments or other documents entered into by or affecting the
Companies or any of their corporate records, unless specifically stated
otherwise and, we have not undertaken any investigations or made any other
enquiries or searches concerning the Companies.
Where an assumption is stated to be made in this opinion, we have not made any
investigation or enquiry with respect to the matters that are the subject of
such assumption and we express no views as to such matters.
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IV. SCOPE OF OUR REVIEW / MATTERS EXCLUDED
We express no opinion as to any law other than the laws of The Netherlands in
force as at the date hereof and no opinion is given (or may be inferred or
implied):
(i) as to any law other than to the laws of The Netherlands in force as at
the date hereof as applied and interpreted according to present
published case-law of the Netherlands courts, administrative rulings,
notices of and communications with DNB and authoritative literature;
and
(ii) as to enforceability of the Indenture.
V. OPINION PARAGRAPHS
Based upon and subject to the foregoing and to the further qualifications set
out below and subject to any matters, documents or events not disclosed to us by
the parties concerned, having regard to such legal considerations as we deem
relevant, we are of the following opinion:
1. CORPORATE STATUS, POWER AND CAPACITY
1.1 Xxxxx Xxxxx Treasury (Europe) B.V. is registered as: (i) a private
company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid), (ii) incorporated on 28 February 1994 and (iii)
validly existing under the laws of The Netherlands.
1.2 Xxxxx Xxxxx Netherlands European Holdings B.V. is registered as: (i) a
private company with limited liability (besloten vennootschap met
beperkte aansprakelijkheid), (ii) incorporated on 27 May 1994 and (iii)
validly existing under the laws of The Netherlands.
1.3 Each of the Companies has:
(a) corporate power and corporate capacity to enter into, to
execute and to deliver the Indenture and to undertake and to
perform the obligations expressed to be assumed by it therein;
and
(b) not omitted to take any internal corporate action in
connection with its entering into of the Indenture, the
absence of which may give it the right to assert against
contracting parties acting in good faith that it has not
validly entered into the Indenture.
2. EXECUTION AND VALIDITY OF OBLIGATIONS
The Indenture has been duly executed on behalf of the Companies.
3. CONFLICT WITH LAWS OR ARTICLES OF ASSOCIATION
In themselves, neither the execution and delivery by the Companies of
the Indenture, nor the undertaking and performance by the Companies of
the obligations expressed to be assumed by them thereunder, conflicts
or will conflict with or result in a breach of any provision of (or
constitute a breach of or default under):
(i) the respective articles of association of the Companies; or
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(ii) any law or generally applicable regulation of The Netherlands
to which the Companies are subject,
which would make the Indenture or parts thereof null and void or
subject the Indenture to avoidance or nullification in The Netherlands.
VI. MISCELLANEOUS
This opinion:
(a) is issued and may only be relied upon on the express condition that it
shall be governed by and that all words and expressions used herein
shall be construed and interpreted in accordance with the laws of The
Netherlands;
(b) speaks as of 5 March 2004, 11:00 hours, Amsterdam time;
(c) is addressed to you and is for your benefit;
(d) is strictly limited to the matters set forth herein and no opinion or
advice may be inferred or implied beyond that expressly stated herein;
(e) may not be used for any other purpose than in connection with the
filing of the Registration Statement; and
(f) may, subject only to our consent to file the same as an exhibit to the
Registration Statement as set out in `I. General' above, not be
disclosed to any other person, company, enterprise or institution, save
for Xxxxx Xxxxxxxxxx LLP that may rely on our opinion with respect to
matters of Netherlands law for purposes of its opinion filed as an
exhibit to the Registration Statement, as if our opinion had been
addressed to it.
Yours faithfully,
/s/ TH.A.L. KLIEBISCH
TH.A.L. KLIEBISCH
XXXXXXXX
XXXXXXXX CHANCE LIMITED LIABILITY PARTNERSHIP
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ANNEX
CORPORATE DOCUMENTS
1. EXTRACTS
(a) A faxed copy of (i) an original official extract (uittreksel) dated 14
May 2003 from the Commercial Register of the Chamber of Commerce of
Amsterdam (the "CHAMBER") relating to the registration of Xxxxx Xxxxx
Treasury (Europe) B.V. under number 33256930 and confirmed to us by the
Chamber by telephone on 16 June 2003 to have remained unaltered since
such date and (ii) an original official extract (uittreksel) dated 12
February 2004 from the Chamber relating to the registration of Xxxxx
Xxxxx Treasury (Europe) B.V. under number 33256930 and confirmed to us
by the Chamber by telephone on 5 March 2004 to have remained unaltered
since such date; and
(b) a faxed copy of (i) an original official extract (uittreksel) dated 14
May 2003 from the Chamber relating to the registration of Xxxxx Xxxxx
Netherlands European Holdings B.V. under number 33259411 and confirmed
to us by the Chamber by telephone on 16 June 2003 to have remained
unaltered since such date and (ii) an original official extract
(uittreksel) dated 12 February 2004 from the Chamber relating to the
registration of Xxxxx Xxxxx Netherlands European Holdings B.V. under
number 33259411 and confirmed to us by the Chamber by telephone on 5
March 2004 to have remained unaltered since such date;
The documents referred under 1.(a) and 1.(b) are together referred to as the
"EXTRACTS" and each an "EXTRACT".
2. ARTICLES
(a) A photocopy of the articles of association (statuten) of Xxxxx Xxxxx
Treasury (Europe) B.V., as, according to the extracts referred to in
1.(a) above, they stand since its incorporation on 28 February 1994;
and
(b) a photocopy of the articles of association (statuten) of Xxxxx Xxxxx
Netherlands European Holdings B.V., as, according to the extracts
referred to in 1.(b) above, they stand since their last amendment on 28
July 1995.
3. BOARD RESOLUTIONS
(a) A faxed copy of an original written resolution by the Board of Managing
Directors of Xxxxx Xxxxx Treasury (Europe) B.V. dated 27 May 2003
signed by by R.G.A. xx Xxxxxxxx for and on behalf of Equity Trust Co.
N.V., X.X. XxXxxxx, X.X. Xxxxx and X.X. Xxxxx (being all the members of
the Board of Managing Directors of Xxxxx Xxxxx Treasury (Europe) B.V.
according to the extracts referred to in 1.(a) above), in which it is,
inter alia, resolved to approve the entering into and execution of the
Indenture to which Xxxxx Xxxxx Treasury (Europe) B.V. is expressed to
be a party; and
(b) a faxed copy of an original written resolution by the Board of Managing
Directors of Xxxxx Xxxxx Netherlands European Holdings B.V. dated 27
May 2003 signed by X. xxx xxx Xxxx for and on behalf of Equity Trust
Co. N.V., X.X. XxXxxxx, X.X. Xxxxx, X.X.
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Xxxxxxx and X.X. Xxxxx (being all the members of the Board of Managing
Directors of Xxxxx Xxxxx European Holdings B.V. according to the
extracts referred in 1.(b) above), in which it is, inter alia, resolved
to approve the entering into and execution of the Indenture to which
Xxxxx Xxxxx Netherlands European Holdings B.V. is expressed to be a
party.
The documents referred to in 3.(a) through 3.(b) above are together referred to
as the "BOARD RESOLUTIONS".
4. MINUTES OF THE SHAREHOLDERS MEETING
(a) An original copy of the minutes of an extraordinary meeting of the sole
shareholder of Xxxxx Xxxxx Treasury (Europe) B.V. held on 27 May 2003
reflecting the approval of the sole shareholder of the execution and
performance of the Indenture to which Xxxxx Xxxxx Treasury (Europe)
B.V. is expressed to be a party; and
(b) an original copy of the minutes of an extraordinary meeting of the
shareholders of Xxxxx Xxxxx Netherlands European Holdings B.V. held on
27 May 2003 reflecting the approval of the shareholders of the
execution and performance of the Indenture to which Xxxxx Xxxxx
Netherlands European Holdings B.V. is expressed to be a party.
The documents referred to under 4.(a) and 4.(b) above are also referred to as
the "SHAREHOLDERS RESOLUTIONS".
5. POWERS OF ATTORNEY
(a) A power of attorney contained in the board resolutions referred to
under 3.(a) above, authorising, inter alios, Xx Xxxxx Xxxxxxx, acting
individually to execute (amongst other things) the Indenture on behalf
of Xxxxx Xxxxx Treasury (Europe) B.V.; and
(b) a power of attorney contained in the board resolutions referred to
under 3.(b) above, authorising, inter alios, Xx Xxxxx Xxxxxxx, acting
individually to execute (amongst other things) the Indenture on behalf
of Xxxxx Xxxxx Netherlands European Holdings B.V.
The documents referred to under 5.(a) and 5.(b) above are together referred to
as the "POWERS OF ATTORNEYS" and each a "POWER OF ATTORNEY" and the attorneys
appointed therein the "ATTORNEYS" and each an "ATTORNEY".
6. CERTIFICATES
(a) A certificate of Xxxxx Xxxxx Treasury (Europe) B.V. addressed to
Xxxxxxxx Xxxxxx LLP dated 5 March 2004 expressed to have been signed by
Mr. R.G.A. Xx Xxxxxxxx on behalf of Equity Trust Co. N.V. and by Xx. X.
X. XxXxxxx on behalf of Xxxxx Xxxxx Treasury (Europe) B.V. stating that
at (a) the date of signing the Indenture and (b) the date hereof (i)
the documents referred to in 3.(a) and 4.(a) have continued to be in
full force and effect and that they have remained unaltered since then,
(ii).a. the Company did not have and does not have a works council
(ondernemingsraad) and/or a Dutch central works council (centrale
ondernemingsraad) or similar body with jurisdiction over the
transactions as envisaged by the Indenture and (ii).b. there is nor was
a legal
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requirement to have the same as the Company did not and does not have
employees; and
(b) a certificate of Xxxxx Xxxxx Netherlands European Holdings B.V.
addressed to Xxxxxxxx Xxxxxx LLP dated 5 March 2004 expressed to have
been signed by Mr. R.G.A. Xx Xxxxxxxx on behalf of Equity Trust Co.
N.V. and by Xx. X. X. XxXxxxx on behalf of Xxxxx Xxxxx Netherlands
European Holdings B.V. stating that at (a) the date of signing the
Indenture and (b) the date hereof (i) the documents referred to in
3.(b) and 4.(b) have continued to be in full force and effect and that
they have remained unaltered since then, (ii).a. the Company did not
have and does not have a works council (ondernemingsraad) and/or a
Dutch central works council (centrale ondernemingsraad) or similar body
with jurisdiction over the transactions as envisaged by the Indenture
and (ii).b. there is nor was a legal requirement to have the same as
the Company did not and does not have employees.
The documents referred to under 6.(a) and 6.(b) above are together referred to
as the "CERTIFICATES".
7. CORPORATE DOCUMENTS
The documents referred to under 1.(a) up to and including 6.(b) above are also
referred to as the "CORPORATE DOCUMENTS".
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