DOJ Opinion No. 100, s. 1983

DOJ OPINION NO. 100 , s. 1983 July 5, 1983 Denmarks Skibakreditfond 74 Gammel Kongeyev DK-1845 Copenhagen V, Denmark Re: Republic of the Philippines Loan of DKr. 296,230,000 Gentlemen : As the Deputy Minister of Justice of the Republic of the Philippines (the "Republic"), my opinion has been requested in connection with that Loan Agreement dated July 5, 1983 (the "Agreement") by and between the Republic, as borrower (in that capacity, the "Borrower"), and you, as lender; providing for a loan to the Borrower in a principal sum of 296,230,000 Danish Kroner (the "Loan") to finance the purchase by the National Maritime Polytechnic of the Republic ("NMP") of the Helsingor Vaerfy A/S Yard No. 422 to be named "Filipinas" (the "vessel") and registered in the ownership of NMP under the laws and flag of the Republic. This opinion is issued in accordance with the requirements of Clause 7 (1) (a) of the Agreement. All terms used herein have the meanings used therein in the agreement. In connection herewith, I have examined the Constitution, the relevant laws and regulations of the Republic, the original or copies, photocopies, certified or otherwise identified to my satisfaction, and of all such official records, regulations, certificates, ruling and orders of officials and agencies of the Republic, certificates or officials and other representatives of the Borrower and NMP, and of all such other agreement, documents, and matters as I have considered necessary or desirable for the opinions hereinafter expressed including, without limitation, the documents listed in Schedule 1 hereto. 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 Borrower and NMP. As I am qualified to advise the Borrower regarding the laws of the Republic and do not represent myself to be familiar with the laws of England or the laws of any jurisdiction other than the Republic, 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 Borrower has full power, authority and legal right to incur the indebtedness and the other obligations provided for in the Agreement, to execute and deliver the Agreement, and to perform and observe the terms and provisions thereof. 2. There is no constitutional provisions, treaty, convention, statute, law, regulation, decree or similar authority of or binding upon the Borrower, and to the best of my knowledge no provision of any existing contract, agreement or instrument relating to the External Debt of the Borrower which would be contravened by the execution and delivery of the Agreement by the Borrower or by the performance or observance by the Borrower of any terms thereof. 3. All authorizations, approvals, and consents required under the laws of the Republic in order for the Borrower (a) to incur the indebtedness and other obligations of the Borrower provided for in the Agreement, (b) to execute and deliver the Agreement, (c) to perform and observe the terms and provision of the Agreement and (d) to make all payment thereunder in the currencies required by the Agreement, have been duly obtained and are in full force and effect. LexLib 4. Except for authorizations, approvals and consents referred to in paragraph 3 hereof, no further requirement exists for public or other registration, recording or filing, or to the payment of any stamp or similar tax as a condition to the legality, validity or enforceability or admissibility in evidence of the Agreement, except that in case of a suit to enforce the Agreement certain court fees and costs as prescribed by law will be payable. 5. The Agreement has been duly executed by the Borrower and constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, and the indebtedness and other obligations incurred and to be incurred by the Borrower under the Agreement are or will be the unconditional general obligations of the Borrower ranking at least pari passu in all respects with all other unsecured External Debt of the Borrower. 6. There is no tax levied or imposed by the Government of the Republic 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 by virtue of the execution or delivery of the Agreement. There is no provision of law, decree or administrative regulation which prohibits the payment by the Borrower of any or all present and future taxes and/or other charges levied or imposed by the Government of the Republic 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. 7. No litigation or administrative proceeding is presently pending or, to the best of my knowledge, threatened against the Borrower which might have a material adverse effect on the Borrower's ability to perform its obligations under the Agreement. 8. The Borrower is subject to civil and commercial law with respect to its obligations under the Agreement and the execution, delivery and performance of the Agreement by the Borrower constitute private and commercial acts rather than governmental or public acts and the irrevocable waiver of the Borrower contained in Clause 19 (v) of the Agreement of any right of immunity on the grounds of sovereignty from suit, and for the enforcement by any available means of a judgment in respect of the Borrower's obligations under the Agreement or the Note is irrevocably binding on the Borrower. 9. Under the laws of the Republic, the choice of the law of England as the governing law for the Agreement is valid and the submission by the Borrower to the jurisdiction of the courts of England or elsewhere is a valid submissions to the jurisdiction of such courts. The procedure for service of process specified in the Agreement are valid and after service in accordance with such procedures, any judgment in personam obtained in any of such courts is, under the laws of the Republic, presumptive evidence of a right as between the parties and their successors in interest, and would be enforceable in the courts of the Republic 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 of notices 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. LexLib 10. NMP has capacity to purchase and own the vessel under the laws of the Republic, all necessary internal procedures of NMP to authorize such purchase and ownership have been complied with and all other necessary approvals and authorizations under the laws of the Republic for the purchase and registration of the vessels under the laws of the Republic have been obtained. Very truly yours, JESUS N. BORROMEO Deputy Minister of Justice Schedule 1 1. Full Powers issued by the President of the Philippines on July 1, 1983 in connection with the loan. 2. Letter of the Maritime Industry Authority, dated April 30, 1980, approving the acquisition of the vessel. 3. Debt ceiling certification issued by the Ministry of Finance on July 5, 1983. 4. Letter of the Central Bank of the Philippines, dated July 5, 1983 extending final approval and registration of the Loan.