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/S87-23507
Tioxide Americas Inc.
Huntsman ICI Chemicals LLC
30th November 1999
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:
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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
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
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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.
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
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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.
12. The Resolutions were duly adopted in accordance with the Articles of
Association of the Company.
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:
(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;
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(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.
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