Exhibit 5.3
WALKERS
Attorneys-at-Law
WALKER HOUSE, P.O BOX 265GT
GEORGE TOWN, GRAND CAYMAN
CAYMAN ISLANDS
TEL: (345) 949-0100 FAX: (345) 949-7886
Internet: walker@candw.ky
IGA/HB/lvb/S87-23507
Tioxide Americas Inc.
Huntsman ICI Chemicals LLC
5th January, 2000
Dear Sirs,
We have been asked to provide this legal opinion to you with regard to the laws
of the Cayman Islands in relation to the Documents (as defined in Schedule 1
hereto) being entered into by Tioxide Americas Inc. (the "Company").
For the purposes of giving this opinion, we have examined the documents listed
in Schedule 1 hereto.
In giving this opinion we have relied upon the assumptions set out in Schedule 2
hereto, which we have not independently verified.
We are Attorneys-at-Law in the Cayman Islands and express no opinion as to any
laws other than the laws of the Cayman Islands in force and as interpreted at
the date hereof. Except as explicitly stated herein, we express no opinion in
relation to any representation or warranty contained in the Documents nor upon
the commercial terms of the transactions contemplated by the Documents.
Based upon the foregoing examinations and assumptions and upon such searches as
we have conducted and having regard to legal considerations which we deem
relevant, and subject to the qualifications set out in Schedule 3 hereto, we are
of the opinion that under the laws of the Cayman Islands:
1. The Company is a company duly incorporated, validly existing and in good
standing under the laws of the Cayman Islands and has full power and legal
right to execute and deliver the Documents to be executed by it and to
perform the provisions of the Documents to be performed on its part.
2. The Company has taken all necessary corporate action to duly authorise the
execution and delivery of the Documents and to perform its respective
obligations thereunder. When delivered by the Company, the Documents will
constitute the legal, valid and binding obligations of the Company
enforceable in accordance with their respective terms.
3. The execution, delivery and performance of the Documents to which the
Company is a party, the consummation of the transactions contemplated
thereby and the compliance by the Company with the terms and provisions
thereof do not:
(i) contravene any law or regulation of the Cayman Islands applicable to
the Company; or
(ii) contravene the Memorandum and Articles of Association of the Company.
This opinion is limited to the matters referred to herein and shall not be
construed as extending to any other matter or document not referred to herein.
This opinion is given solely for your benefit, the benefit of your legal
advisers acting in that capacity in relation to this transaction and may not be
relied upon by any other person without our prior written consent other than the
Holders of the Exchange Notes (as defined in the Indenture) and Skadden, Arps,
Slate, Meagher & Flom LLP who may rely upon this opinion solely for the purpose
of rendering an opinion letter to the Company and the Guarantors (as defined in
the Registration Statement) in connection with the issuance and delivery of the
Exchange Notes (as defined in the Registration Statement) and the Guarantees (as
defined in the Registration Statement). We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to us
under the caption "Legal Matters" in the prospectus included in the 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 United
States Securities Act.
This opinion is governed by and shall be construed in accordance with the laws
of the Cayman Islands.
Yours faithfully,
/s/ Walkers
WALKERS
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Schedule 1
List of Documents Examined
(1) the Memorandum and Articles of Association of the Company adopted by
special resolution on 25th June 1999 and the Certificate of Registration By
Way of Continuation of the Company dated 25th June 1999;
(2) a Certificate of Good Standing in respect of the Company dated 25th June
1999 issued by the Registrar of Companies;
(3) an executed copy of the written resolutions of the Board of Directors of
the Company dated 29th June 1999 (the "Resolutions");
(4) the Exchange Notes (as defined in the Indenture);
(5) the Registration Statement on Form S-4 (as amended) filed with the United
States Securities and Exchange Commission under the Securities Act of 1933,
as amended relating to the exchange of an aggregate principal amount of up
to $600,000,000 and of up to Euros 200,000,000 of the Company's 10 and 1/8%
Senior Subordinated Notes due 2009 for a like principal amount and
denomination of its issued and outstanding 10 and 1/8% Senior Subordinated
Notes due 2009 from the holders thereof (the "Registration Statement");
(6) (i) the Indenture dated as of June 30, 1999 among Huntsman ICI Chemicals
LLC, each of the Guarantors including the Company named therein and
Banc One, N.A.;
(ii) the Guarantee dated as of June 30, 1999 executed by the Company;
(7) such other documents as we have considered necessary for the purposes of
rendering this opinion.
(the documents listed in paragraphs (6)(i) to (6)(ii) above inclusive are
collectively referred to in the opinion as the "Documents").
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Schedule 2
Assumptions
The opinions hereinbefore given are based upon the following assumptions:
1. There are no provisions of the laws of any jurisdiction outside the Cayman
Islands which would be contravened by the execution or delivery of the
Documents and that, in so far as any obligation expressed to be incurred
under the Documents is to be performed in or is otherwise subject to the
laws of any jurisdiction outside the Cayman Islands, its performance will
not be illegal by virtue of the laws of that jurisdiction.
2. The Documents are within the capacity and powers of and have been or will
be duly authorised, executed and delivered by each of the parties thereto
(other than the Company) and constitute or will, when executed and
delivered, constitute the legal, valid and binding obligations of each of
the parties thereto enforceable in accordance with their terms as a matter
of the laws of all relevant jurisdictions (other than the Cayman Islands).
3. The choice of the laws of the jurisdiction selected to govern each of the
Documents has been made in good faith and will be regarded as a valid and
binding selection which will be upheld in the courts of that jurisdiction
and all other relevant jurisdictions (other than the Cayman Islands).
4. All authorisations, approvals, consents, licences and exemptions required
by and all filings and other requirements of each of the parties to the
Documents outside the Cayman Islands to ensure the legality, validity and
enforceability of the Documents have been or will be duly obtained, made or
fulfilled and are and will remain in full force and effect and that any
conditions to which they are subject have been satisfied.
5. All conditions precedent contained in the Documents have been or will be
satisfied or waived.
6. No disposition of property effected by any of the Documents is made
wilfully to defeat an obligation owed to a creditor and at an undervalue.
7. The Company was on the date of execution of the Documents to which it is a
party able to pay its debts as they became due from its own moneys, and
that any disposition or settlement of property effected by any of the
Documents is made in good faith and for valuable consideration.
8. None of the Documents has been or will be executed or delivered in the
Cayman Islands.
9. All original documents are authentic, that all signatures and seals are
genuine, that all documents purporting to be sealed have been so sealed,
that all copies are complete and conform to their original and that the
Documents conform in every material respect to the latest drafts of the
same produced to us.
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10. The copies of the Memorandum and Articles of Association, Register of
Members, Register of Directors and Officers and Register of Mortgages and
Charges provided to us by the Registered Office of the Company are true and
correct copies of the originals of the same and that all matters required
by law to be recorded therein are so recorded and that the corporate
records of the Company do not contain any document in addition to those
already provided to us other than the Resolutions as confirmed in the
letter to us from the Registered Office of the Company dated 19th November
1999.
11. None of the parties to any of the Documents is:
(a) a "person in Iraq" as that term is defined in The Iraq and Kuwait
(United Nations Sanctions) (Dependent Territories) Order 1990 or an
"Iraqi person" as defined in The Iraq (United Nations) (Sequestration
of Assets) (Dependent Territories) Order 1993 or a person resident in
the Republic of Iraq for the purposes of the The Caribbean Territories
(Control of Gold, Securities, Payment and Credits: Kuwait and Republic
of Iraq) Order 1990; or
(b) a "person connected with Libya" as that term is defined in The Libya
(United Nations Sanctions) (Dependent Territories) Order 1992.
13. At the time of the registration by way of continuation of the Company in
the Cayman Islands and as a matter of the laws of the State of Delaware,
the Directors of the Company were John A. Collingwood, Rene Lachance and
Guy Gauthier and the shareholder of the Company was ICI American Holdings
Inc.
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Schedule 3
Qualifications
The opinions hereinbefore given are subject to the following qualifications:
1. The term "enforceable" as used above means that the obligations assumed by
the Company under the Documents are of a type which the courts of the
Cayman Islands enforce; it does not mean that those obligations will
necessarily be enforced in all circumstances in accordance with their
terms. In particular:
(a) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganisation and other laws of general application relating to or
affecting the rights of creditors;
(b) enforcement may be limited by general principles of equity;
(c) claims may become barred under statutes of limitation or may be or
become subject to defences of set-off or counterclaim;
(d) where obligations are to be performed in a jurisdiction outside the
Cayman Islands, they may not be enforceable in the Cayman Islands to
the extent that performance would be illegal under the laws of that
jurisdiction;
(e) an award of a court of the Cayman Islands may be required to be made
in Cayman Islands dollars;
(f) to the extent that any provision of the Documents is adjudicated to be
penal in nature, it will not be enforceable in the courts of the
Cayman Islands; in particular, the enforceability of any provision of
the Documents which imposes additional obligations in the event of any
breach or default, or of payment or prepayment being made other than
on an agreed date may be limited to the extent that it is subsequently
adjudicated to be penal in nature and not an attempt to make a
reasonable pre-estimate of loss;
(g) to the extent that the performance of any obligation arising under the
Documents would be fraudulent or contrary to public policy, it will
not be enforceable in the courts of the Cayman Islands; and
(h) a Cayman Islands court will not necessarily award costs in litigation
in accordance with contractual provisions in this regard.
2. Cayman Islands stamp duty will be payable if the Documents are executed in,
brought to, or produced before a court of the Cayman Islands. Such duty
would be nominal except in the case of:
(a) a legal or equitable mortgage or charge of immovable property or a
debenture:
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(i) where the sum secured is CI$300,000 (US$360,000) or less, in
which case such duty would be 1% of the sum secured;
(ii) where the sum secured is more than CI$300,000 (US$360,000), in
which case such duty would be 1.5% of the sum secured;
(b) a legal or equitable mortgage of movable property (not including a
debenture), in which case such duty would be 1.5% of the sum secured;
(c) a bill of sale, in which case such duty would be 1% of the sum
secured;
PROVIDED that no duty shall be payable where the property is situated
outside the Cayman Islands and that in the case of a mortgage of moveable
property situated in the Cayman Islands granted by an exempted company or
by an ordinary non-resident company (as defined in the Companies Law (1998
Revision)) or by a body corporate incorporated outside the Cayman Islands,
the maximum duty payable shall be CI$500.00. (US$600.00).
3. A certificate, determination, calculation or designation of any party to
the Documents as to any matter provided therein might be held by a Cayman
Islands court not to be conclusive, final and binding, notwithstanding any
provision to that effect therein contained, if, for example, it could be
shown to have an unreasonable, arbitrary or improper basis or in the event
of manifest error.
4. If any provision of the Documents is held to be illegal, invalid or
unenforceable, severance of such provision from the remaining provisions
will be subject to the discretion of the Cayman Islands courts.
5. To maintain the Company in good standing under the laws of the Cayman
Islands, annual filing fees must be paid and returns made to the Registrar
of Companies.
6. Any term of any of the Documents may be amended orally by the parties
thereto, notwithstanding provisions to the contrary contained therein.
7. Notwithstanding any purported date of execution in any of the Documents,
the rights and obligations therein contained take effect only on the actual
execution and delivery thereof but the Documents may provide that they have
retrospective effect as between the parties thereto alone.
8. The effectiveness of terms in the Documents excusing any party from a
liability or duty otherwise owed or indemnifying that party from the
consequences of incurring such liability or breaching such duty are limited
by law.
9. In giving this opinion, we have relied upon the accuracy of the Secretary's
Certificate on the date of issue hereof without further verification.
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