DOJ Opinion No. 063, s. 1983

DOJ OPINION NO. 063 , s. 1983 April 22, 1983 To : Dresdner (South East Asia) Limited (for themselves and the Banks referred to below) Gentlemen : As the Minister of Justice of the Republic of the Philippines (the "Republic"), I am qualified to give you this legal opinion under the laws of the Republic. 1. I have examined: (a) a loan agreement (the "Loan Agreement") dated April 21, 1983 between (i) Philippines Airlines Inc. (the "Borrower") (ii) Dresdner (South East Asia) Limited, Credit Lyonnais and Midland Bank Public Limited Company (the "Managers") (iii) Dresdner (South East Asia) Limited as agent for the Banks (the "Agent") and (iv) certain banks and lending institutions named therein (the "Banks") (b) a guarantee (the "Guarantee") set out in Schedule C of, and executed pursuant to the Loan Agreement by the Republic (acting through its Deputy Minister of Finance) in favour of the Agent, the Managers and the Banks; (c) a document of Full Powers issued by the President on April 19, 1983 in connection with execution and delivery of the Guarantee; (d) A letter of the Central Bank of the Philippines, dated April 14, 1983, confirming the approval of the loan covered by the Loan Agreement; (e) all decrees, laws, ordinances, regulations, court decisions of the Republic and all such other documents and public records as I have deemed necessary or appropriate for rendering this opinion. Words and Expressions defined in the Loan Agreement have the same meanings in this opinion. LLpr 2. Having considered the documents listed in Paragraph 1 above and having regard to all applicable laws of the Republic, I am of the opinion that: (a) the Guarantor has the necessary power and authority, and all necessary action (including approvals and consents of governmental or other regulatory authorities) in the Republic has been taken to enable the Guarantor to sign and deliver the Guarantee and perform the obligations undertaken by it thereunder; and implementation by the Guarantor of the foregoing will not cause: (aa) any limit on the Guarantor (whether imposed by the Constitution, statute, regulation or treaty of the Guarantor, or, to the best of my knowledge, agreement or otherwise) to be exceeded; (bb) any law, decree, statute, regulation or order to be contravened; (cc) any default under, or give rise to an obligation to create any Encumbrances pursuant to, any agreement or other instrument relating to External Indebtedness or any judgment or other requirement known to us to which the Guarantor is a party or by which it or any of its assets is bound; (b) the Guarantee has been properly signed and delivered on behalf of the Guarantor and the obligations on the part of the Guarantor contained in the Guarantee, assuming them to be valid and binding according to English law by which they are expressed to be governed, are valid and legally binding on and enforceable against the Guarantor under the laws of the Republic and in the courts of the Republic and under the laws of the Republic it is not necessary to the validity or enforceability of the Guarantor's obligations under the Guarantee that the Guarantor should obtain any economic or other benefit from the performance of the transactions contemplated in the Guarantee; (c) the signature, delivery and performance of the Guarantee by the Guarantor constitute private and commercial acts by the Republic rather than public or governmental acts; (d) it is not necessary or advisable under the laws of the Republic in order to ensure the validity, enforceability and priority of the obligations of the Guarantor or the rights of the Managers, the Agent or the Banks (or any of them) under the Guarantee, that the Guarantee be filed, registered, recorded or notarized in any public office or elsewhere or that any other instrument relating thereto be signed, delivered, filed, registered or recorded, that any tax or duty be paid or that any other action whatsoever be taken; (e) the obligations of the Guarantor under the Guarantee rank at least equally and ratably (pari passu) in point of priority and security with all other obligations (relating to External Indebtedness) of the Guarantor except as permitted under paragraph 10(a) of the Guarantee; (f) there is no withholding or other tax to be deducted from any payment, whether of principal, interest, fee, penalty or otherwise, to be made by the Guarantor pursuant to the Guarantee; and the arrangements contemplated by the Guarantee do not give rise to any charge whatsoever to taxes in the Republic; prcd (g) there is no applicable usury or interest limitation law in the Republic which may restrict the recovery of payments in accordance with or the Guarantee; (h) there are no registration, stamp or other taxes or duties of any kind payable in the Republic in connection with the signature, performance or enforcement by legal proceedings of the Guarantee other than filing fees incidental to litigation, sheriff's fees, and similar charges; (i) neither the Agent, the Manages nor the Banks will violate any law or regulation in the Republic nor become liable to tax in the Republic by reason of entering into the Guarantee with the Guarantor, or performing their respective obligations under the Guarantee. It is not necessary to establish a place of business in the Republic in order to enforce any provisions of the Guarantee; (j) the choice of English law to govern the Guarantee will be upheld as valid choice of law in any action relating to this instrument in the courts of the Republic; (k) the consent to the jurisdiction by the Guarantor contained in the Guarantee is valid and binding on the Guarantor and not subject to revocation; (l) the waivers of immunity from suits and proceedings and from execution contained in the Guarantee are proper and effective waivers under the laws of the Republic and the waivers and the submission to jurisdiction contained in the Guarantee are made by or with the authority of a person who has full power and authority in that behalf under the constitution and laws of the Republic and accordingly the Guarantor is not entitled to any form of immunity from legal proceedings, jurisdiction or execution of judgments with respect to the Guarantee; (m) any final judgment for a definite sum given by the High Court of Justice in England or the Courts of Singapore or a state or federal court sitting in the State of New York against the Guarantor would be recognized and accepted by the Courts of the Republic without re-trial or examination of the merits of the case subject to the defenses allowed against foreign judgments by Section 50 of Rule 39 of the Rules of Court of the Philippines, which are want of jurisdiction, want of notice, collusion, fraud, and clear mistake of law or fact; (n) the representations and warranties set froth in paragraph 9 of the Guarantee are to the best of my knowledge true at the date hereof. 3. I do not purport to be an expert on and do not purport to be generally familiar with or qualified to express legal opinions based on any law other than the laws of the Republic and accordingly express no legal opinion herein based upon any law other than the laws of the Republic. prLL Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice