DOJ Opinion No. 057, s. 1981

DOJ OPINION NO. 057 , s. 1981 March 31, 1981 Barclays Bank International Limited Manila Offshore Branch Ground Floor, National Life Building 6762 Ayala Avenue Makati, Metro Manila Philippines Re: Eurodollar Term Loan Agreement dated as of March 29, 1981 US$6,756,696 Loan Facility Gentlemen: I refer to the Eurodollar Term Loan Agreement dated as of March 9, 1981 (the "Agreement") by and among Metropolitan Manila, acting through the Metropolitan Manila Commission, as borrower (the "Borrower"), the Republic of the Philippines, as guarantor (the "Guarantor"), and you, as lender, providing for a loan to the Borrower in an aggregate principal amount not to exceed US$6,756,696 (the "Loan"), evidenced by a promissory note substantially in the form provided for in the Agreement (the "Note"), the repayment of which is guaranteed by the Guarantor pursuant to the guarantee on the Note. This opinions is issued in accordance with the requirements of Section 3.1 (d)(ii) of the Agreement. LibLex All terms used herein have the meanings set forth in the Agreement. In connection herewith, I have examined the Constitution, the relevant laws and regulations of the Republic of the Philippines, the originals or copies, photocopied, certified or otherwise identified to my satisfaction, of all such official records of the Borrower and of all such official records, regulations, certificates, rulings and orders of officials and agencies of the Republic of the Philippines, certificates of officials and other representatives of the Guarantor, and of all such other agreements, documents, and matters as I have considered necessary or desirable for the opinions hereinafter expressed including, without limitation, the following documents: 1. The Agreement 2. The Note 3. Republic Act Numbered 4860, as amended 4. Full Powers, dated March 3, 1981 issued by the President of the Philippines in favor of Minister Cesar Virata and 5. Letter of the Central Bank of the Philippines, dated March 24, 1981, granting "final approval and registration" of the Loan. In such examination, I have assumed the genuineness of all signatures and the authenticity of all documents submitted to me as originals, and the conformity with the originals of all documents submitted to me as copies thereof, and I have found nothing to indicate that such assumptions are not fully justified. As to any other matters of fact material to the opinions expressed herein, I have relied upon certificates of officers and other representatives of the Guarantor. As I am qualified to advise the Guarantor regarding the laws of the Republic of the Philippines and do not represent myself to be familiar with the laws of the State of New York or the United States of America, or the laws of any jurisdiction other than the Republic of the Philippines, I do not pass upon and express no opinion in respect of those matters governed by or construed in accordance with any of such laws. Based upon and subject to the foregoing, I am of the opinion that: 1. The Guarantor has full power, authority and legal right to incur the indebtedness and the other obligations provided for in the Agreement and the guarantee on the Note, to execute and deliver the Agreement and the guarantee on the Note, and to perform and observe the terms and provisions thereof. 2. There is no constitutional provision, treaty, convention, statute, law, regulation, decree or similar enactment of the Republic of the Philippines or any agency, department or instrumentality thereof binding upon the Guarantor, and to the best of my knowledge no provision of any existing contract, agreement or instrument binding on the Guarantor and no provision of any contract, agreement or instrument with the International Monetary Fund or of any other borrowing obligation or agreement of the Guarantor, which would be contravened by the execution and delivery of the Agreement or the guarantee on the Note by the Guarantor or by the performance or observance by the Guarantor of any of the terms thereof. 3. All authorization, approvals, and consents required under the laws of the Republic of the Philippines in order for the Guarantor (a) to incur the indebtedness and other obligations of the Guarantor provided for in the Agreement and the guarantee on the Note, (b) to execute and deliver the Agreement and the guarantee on the Note, (c) to perform and observe the terms and provisions of the Agreement and the guarantee on the Note and (d) to make all payments thereunder in the currencies required by the Agreement, have been duly obtained and are in full force and effect. prcd 4. Except for authorization, approvals and consents referred to in paragraph 3 hereof, no requirement exists for public or other registration, recording or filing, or for the payment of any stamp or similar tax as a condition to the legality, validity or enforceability or admissibility in evidence of the Agreement or the guarantee on the Note, except that in case of suit to enforce the Agreement or the guarantee on the Note certain court fees and costs as prescribed by law will be payable. 5. Each of the Agreement and the guarantee on the Note has been duly executed by the Guarantor and constitutes legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, and the indebtedness and other obligations incurred and to be incurred by the Guarantor under the Agreement and the guarantee on the Note are or will be the unconditional general obligations of the Guarantor for the payment and performance of which the full faith and credit of the Republic of the Philippines is pledged ranking at least pari passu in all respects will all other unsecured External indebtedness of the Guarantor. 6. Except for a withholding tax at the rate of 10% on payments of interest on the Loan or Note, there is no other tax levied or imposed by the Government of the Republic of the Philippines or by any political or other administrative subdivision or taxing authority thereof or therein, on any payment to be made by the Borrower pursuant to the Agreement or the Note or by virtue of execution or delivery of the Agreement or the note. There is no provision of law, decree or administrative regulation which prohibits the payment by the Borrower or the Guarantor of any or all present and future taxes and/or other charges levied or imposed by the Government of the Republic of the Philippines or any political or other administrative subdivision or taxing authority thereof or therein, with respect to any payment to be made by the Borrower pursuant to the Agreement or the Note or by the Guarantor pursuant to the guarantee. 7. No litigation or administrative proceeding is presently pending or, to the best of the knowledge of the undersigned, threatened against the Guarantor which might have a material adverse effect on the Guarantor's ability to perform the Guarantor's obligations under the Agreement or the guarantee on the Note. 8. The execution and delivery by the Guarantor and the performance of the Agreement and the guarantee on the Note by the Guarantor are subject to civil and commercial law, and the irrevocable waiver by the Guarantor contained in Section 10.15 of the Agreement of any right of immunity from suit on the grounds of sovereignty, and for the enforcement by any available means of a judgment, in respect of the Guarantor's obligations under the Agreement or the guarantee on the Note is irrevocably binding on the Guarantor. prcd 9. Under the laws of the Republic of the Philippines, the choice of the law of the State of New York as being the governing law for the Agreement and the Note is valid and the submission by the Guarantor to the jurisdiction of the courts of the State of New York or of the United States of America is a valid submission to the jurisdiction of such courts. After service of process in the manner specified in the Agreement any judgment in personam obtained in any of such courts is, under Philippine law, presumptive evidence of a right as between the parties and their successors in interest, and would be enforceable in the courts of the Philippines unless the party against whom the judgment was obtained is able to rebut the presumption by showing (a) that the foreign court did not have jurisdiction in accordance with the jurisdictional rules of the foreign court, (b) want to notice to the party of the foreign proceeding, (c) collusion or fraud in obtaining the judgment of the foreign court, or (d) clear mistake of law or fact. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice