DOJ Opinion No. 102, s. 1986

DOJ OPINION NO. 102 , s. 1986 September 24, 1986 To: The Export-Import Bank of Japan 4-1, Ohtemachi 1-chome Chiyoda-ku, Tokyo 100, Japan Gentlemen: I am the Minister of Justice of the Republic of the Philippines ("Philippines") and as such have advised the Borrower in connection with a rescheduling agreement dated May 30, 1986 (the "Agreement") between the Borrower and the Export-Import Bank of Japan ("EXIMBANK"). All terms and expressions defined in the Agreement shall bear the same meaning herein save where the context otherwise requires. This legal opinion is rendered pursuant to Article XIII of the Agreement and at the request of the Borrower. llcd After examining all relevant documents, including an executed copy of the Agreement and such other documents as I have considered necessary, and making all inquiries which I consider necessary or desirable for the opinion hereunder expressed and having regard to the laws and regulations of the Philippines, I am of the opinion that: (a) the Borrower has full legal power and authority to enter into the Agreement, to defer and reschedule the Rescheduled Amount in the manner provided therein and to perform and observe the terms and conditions hereof; (b) the Borrower has taken and completed all necessary legal and other action or procedures to authorize the Borrower to execute and deliver the Agreement, to defer and reschedule the Rescheduled Amount in the manner provided therein, and to perform and observe the terms and conditions thereof; (c) all authorizations, approvals and consents of the Government of the Philippines, or of any agency, department, or commission thereof, which are necessary or advisable (i) to authorize the execution and delivery of the Agreement and/or the performance and observance of the terms and conditions of the Agreement, (ii) for the legality, validity, and enforceability or admissibility in evidence hereof and (iii) for the payment by the Borrower of all sums which it may or will be liable to pay hereunder in Japanese Yen or for the conversion of the requisite amounts of other currencies, including that of the Philippines, into Japanese Yen to effect the same, have been duly effected, completed and obtained and are in full force and effect; (d) the Agreement has been duly executed and delivered by the duly authorized representatives of the Borrower; prcd (e) there is no provision of any agreement, treaty, convention or arrangement (including, without limitation, the understanding), protocol, declaration or charter to which the Borrower is a party or under which the Borrower is obligated, nor is there any statute, rule or regulation of the Philippines which would be or is contravened by the execution and delivery of the Agreement, or any instrument or agreement required hereunder, or by the performance by the Borrower of any provision, condition, covenant, or other terms hereof or thereof; (f) the Agreement constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with the terms and conditions of the Agreement; (g) so far as I am aware, no event has occurred and is continuing or would result or has resulted from the rescheduling under the Agreement, which constitutes or which, upon a lapse of time or notice or fulfillment of any other requirement, would become an Event of Default; (h) all payments to be made by the Borrower under the Agreement may and shall be made in Japanese Yen in full and free and clear of and without deduction or withholding for or on account of any Philippine Taxes but in any event, if any such Taxes must by law be deducted or withheld therefrom, the Borrower's obligations under Section (3) of Article V thereof are its legal, valid and binding obligations; (i) the execution and delivery by the Borrower of the Agreement constitute, and the Borrower's performance of and compliance with the obligations expressed to be assumed by it in and the conditions imposed on it by the Agreement will constitute, private and commercial acts done and performed for private and commercial purposes for the purposes of the laws of the Philippines and the Borrower is not entitled to claim immunity from suit, execution, attachment or other legal process in any jurisdiction including the Philippines; provided that should the Borrower ever become entitled to any such immunity, the waiver thereof contained in Section (6) of Article XI of the Agreement is effective as its legal, valid and binding obligation; (j) in any proceeding in the Philippines for the enforcement of the Agreement, Section (1) of Article XI of the Agreement which provides that the Agreement shall be governed by and construed in accordance with the laws of Japan shall be recognized and given effect. Any award obtained in Japan against the Borrower in connection with any proceeding for the enforcement of the Agreement, shall be enforceable against the Borrower and its assets in the Philippines, unless it is shown that said award was obtained without jurisdiction or notice to the parties or that said award was based on collusion, fraud or clear mistake of law or fact; (k) the Borrower's agreement to the use of arbitral proceedings in the terms of the Agreement is legal, valid and binding. The submissions by the Borrower to the non-exclusive jurisdictions of the courts of the Philippines and Tokyo District Court pursuant to Section (3) of Article XI of the Agreement, are each effective to permit such courts to exercise jurisdiction over the Borrower in any action of proceeding brought in such courts for the purposes of converting any award obtained in Japan into a judgment or enforcing the same and the appointments and designations by the Borrower of its agents to accept service of process out of such courts in connection with any such action or proceeding, pursuant to Section (4) of Article XI of the Agreement, are its legal, valid and binding appointments and designations; (l) the Agreement is in proper legal form under the laws of the Philippines and is capable of enforcement in the courts of the Philippines; (m) no mortgage, pledge, lien, charge, privilege, priority, encumbrance or other security interest of any kind or nature whatsoever and howsoever arising (any thereof being hereinafter referred to as an "Encumbrance") exists over any or all of the property, revenues or assets of the Borrower, as security for any External Indebtedness of the Borrower other than (i) Encumbrances upon the Borrower's property established at the time of purchase of such property, (ii) Encumbrances arising out of the ordinary course of banking transactions and securing a debt maturing not more than one year from the date originally incurred, and (iii) Encumbrances arising by operation of law. Neither the execution and delivery of the Agreement nor the Borrower's performance of and compliance with the obligations expressed to be assumed by it in and the conditions imposed on it by the Agreement will result in the existence of or oblige the Borrower to create any Encumbrance over any of its property, revenues or assets; prcd (n) the obligations and liabilities of the Borrower (both actual and contingent) under the Agreement constitute irrevocable, direct, unconditional and general obligations of the Borrower which rank at least pari passu in priority of payment with all other existing unsecured External Indebtedness of the Borrower; (o) there is no requirement to file, register or otherwise record the Agreement or any instrument or agreement required hereunder in any public office or elsewhere to ensure the validity, legality, effectiveness, enforceability or admissibility in evidence thereof; (p) the EXIMBANK is not, nor will it be, deemed to be resident, domiciled or carrying on business or subject to taxation or have a permanent establishment, in each case, in the Philippines by reason only of the negotiation, preparation, execution, delivery, performance, enforcement of and/or receipt of any payment due under the Agreement. Very truly yours, (SGD.) NEPTALI A. GONZALES Minister of Justice