DOJ Opinion No. 120, s. 1983

DOJ OPINION NO. 120 , s. 1983 August 2, 1983 Asia Pacific Capital Corporation Limited G.P.O. BOX 10943 Hong Kong as agent for the banking and financial institutions named in Schedules I and II of the loan and guaranty agreement described hereinbelow Re: Loan and Guaranty Agreement dated as of July 22, 19983 Gentlemen : As the Deputy Minister of Justice of the Republic of the Philippines (the "Republic") my opinion has been requested in connection with the loan and guaranty agreement dated as of July 22, 1983 (the Loan and Guaranty Agreement) by and among Development Bank of the Philippines as borrower (the "Borrower") the Republic as guarantor (hereinafter referred to in such capacity as the Guarantor"), the lenders named in schedules I and II thereto (the Lenders"), the Lead Managers, managers and co-managers named therein (collectively, the Manager), Asia Pacific Capital Corporation Limited as agent for the Lenders and as agent for the Lenders and as agent for the Prime Lenders for certain purposes (hereinafter referred to in either such capacity as the "Agent"), and The Chartered Bank acting as agent (the "Libor Agent") for the Libor Lenders provided for a loan (the "Loan") to the Borrower in an aggregate principal amount not to exceed One Hundred Million United States Dollars (US$100,000,000), subject to the terms and conditions stated therein, and evidenced by promissory notes substantially in the form provided for in the Loan and Guaranty Agreement (the "Notes"). The obligations of the Borrower under the Loan and Guaranty Agreement and its related documentation have been irrevocably and unconditionally guaranteed by the Guarantor pursuant to its guaranty contained in Section 8.01 of the Loan and Guaranty Agreement and as endorsed on each of the Notes (hereinafter referred to as the "Guaranty"). All terms used herein have the meanings set forth in the Loan and Guaranty Agreement. In rendering this opinion I have examined the Constitution, the relevant Civil Code provisions, presidential decrees, laws and regulations of the Republic and all such public records and documents and other documents as are necessary in connection herewith, including the following: (a) an executed copy of the Loan and Guaranty Agreement, including the Schedules and Exhibits attached thereto; (b) the Notes, each dated the date of Drawdown; (c) the Charter (Republic Act No. 85, as amended to date) and the By laws of the Borrower; (d) a certificate of the Deputy Minister of Finance of the Republic dated July 29, 1983 certifying the name and specimen signature of the person authorized to execute the Loan and Guaranty Agreement on behalf of the Guarantor and other notices, statements and certificates thereunder; (e) the applications to and approvals on the following ministries and agencies of the Republic: (1) letter of the Central Bank of the Philippines, dated July 29, 1983, extending final approval and authoriz[ing] the registration of the loan; (2) Full powers document issued by the President of the Republic on July 14, 1983. True and correct copies of the applications to and approvals of such ministries and agencies are attached to this opinion; (f) a telex message dated July 22, 1983 from the Consul General of the Republic in New York, New York regarding acceptance of appointment as the agent of the Borrower and the Guarantor for service of process in New York; and (g) a letter dated August 1, 1983 from the Consul General of the Republic in London regarding acceptance of appointment as the agent of the Borrower and the Guarantor for service of process in London, England. LexLib 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 assumption are not fully justified. As to any other matters of fact material to the opinions expressed herein, I have relied upon certificates of officials and other representatives of the Guarantor. As I am qualified to advise the Guarantor regarding the laws of the Republic and do not represent myself to be familiar with the laws of the United States of America or any State thereof 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 such laws. Based upon and subject to the foregoing, I am of the opinion that: (1) The Guarantor has full legal right, power and authority to provide the Guaranty and to perform its other obligations provided for in the Loan and Guaranty Agreement, to execute and deliver the Loan and Guaranty Agreement to endorse the Guaranty on each of the Notes, and to perform and observe the terms and conditions of the Loan and Guaranty Agreement and the Guaranty. (2) The Guarantor has taken all necessary legal action to authorize the execution, delivery and performance of the Loan and Guaranty Agreement and its endorsement of the Guaranty on each of the Notes. (3) There is no constitutional or treaty provision, law, ordinance, decree, regulation, statute or similar enactment and no contractual or other obligation binding on the Guarantor, nor any guideline or policy statement, whether or not having the force of law, applicable to the Guarantor that is or will be contravened by the execution and delivery of the Loan and Guaranty Agreement or the Guaranty or by the performance or observance of any of the terms and conditions thereof. (4) All governmental registrations and approvals necessary for the due execution and delivery of the Loan and Guaranty Agreement and the Guaranty have been obtained, and all such registration and approvals necessary for the performance or enforceability thereof, including without limitation the final approval of the Loan and Guaranty Agreement and the transactions contemplated thereby by the Central Bank and any foreign exchange and transfer permits regarding Dollar payments thereunder have been obtained and are in full force and effect. LexLib (5) The Loan and Guaranty Agreement and the Guaranty endorsed on each of the Notes constitute the legal, valid and binding obligations of the Guarantor enforceable in accordance with their respective terms. (6) To the best of my knowledge and belief after the inquiry, the Guarantor is not in default under any duty, obligation or agreement relating to External Indebtedness to which it is a party or by which it, or any of its assets, is bound, which default might have a material adverse effect on the ability of the Guarantor to perform its obligations under the Loan and Guaranty Agreement or the Guaranty. (7) The obligations of the Guarantor under the Loan and Guaranty Agreement and the Guaranty are direct, unconditional, enforceable and general obligations of the Guarantor for which the full faith and credit of the Guarantor is pledged, and which rank at least pari passu in priority of payment with all other External Indebtedness of the Guarantor, it being understood that pari passu in priority of payment refers to the order of priority of payment and not to the presence or absence of security in respect of specific property of the Guarantor. No External Indebtedness of the Guarantor is secured by or otherwise benefits from any lien, charge, encumbrance or other security interest or any segregation or other preferential arrangement (whether or not constituting a security interest, on or with respect to any present or future assets, revenues or rights to the receipts of income of the Guarantor, except as permitted under Section 8.05 of the Loan and Guaranty Agreement. (8) The Guarantor is a member in good standing of the IMF and is fully eligible to use its General Account and its Special Drawing Account with the IMF in accordance with the Articles of Agreement of the IMF. (9) The execution, delivery and performance by the Guarantor of the Loan and Guaranty Agreement and the Guaranty endorsed upon each of the Notes constitute private commercial acts rather than governmental or public acts and the Guarantor is subject to suit with respect to its obligations under the Loan and Guaranty Agreement and Guaranty endorsed upon each of the Notes. The waiver of any rights to sovereign immunity contained in Section 12.07 of the Loan and Guaranty Agreement is irrevocably binding on the Guarantor its successors and assigns. (10) The qualification by the Agent, any of the Managers or any of the Lenders for admission to do business under the laws of the Republic does not constitute a condition to, and the failure to so qualify will not affect the exercise or the enforcement by the Agent, any of the Managers, or any of the Lenders of any right privilege or remedy afforded to the Agent, any of the Managers, or any of the Lenders pursuant to the Loan and Guaranty Agreement, the Letter Agreements, of any the Notes or the Guaranty and the performance by the Agent, any Manager or any Lender of any action required or permitted under the Loan and Guaranty Agreement, the Letter Agreements, any of the Notes or the Guaranty will not violate any law or regulation of the Republic or any political subdivision thereof or Government Agency, or result in any unfavorable tax consequences for the Agent, any of the Managers, or any of the Lenders. Neither the Agent nor any of the Managers or Lenders is or will be deemed to be resident, domiciled, to have an office in or to be doing business in the Republic solely by reason of the execution, delivery performance or enforcement of the Loan and Guaranty Agreement the Letter Agreement, any of the Notes or the Guaranty. (11) There is no tax, fee, impost or other charge or restriction imposed by the Republic on the Loan and Guaranty Agreement or the Guaranty or on any payments to be made by the Guarantor under the Loan and Guaranty Agreement or the Guaranty and the Guarantor is not required or permitted by any present law or regulation of the Republic to deduct or with hold any, sum from any payments (whether of principal interest or otherwise) due or to become due from the Guarantor under the Loan and Guaranty Agreement or the Guaranty. LexLib (12) Except for the approval of the Central Bank which approval has been obtained and is in full force and effect, it is not necessary or advisable under the laws of the Republic in order to assure the validity effectiveness and enforceability of the Loan and Guaranty Agreement, the Guaranty or any part thereof that any such agreement or instrument be filed, registered or records in any public office or elsewhere or that any other instrument relating thereto be executed, delivered, filed, registered or recorded. (13) The transactions contemplated by the Loan and Guaranty Agreement and the Guaranty are not subject to any currency deposit requirements or any reserve requirements of whatsoever nature under the laws of the Republic. (14) Under the laws of the Republic, the choice of New York law to govern the validity construction and performance of the Loan and Guaranty Agreement, the Guaranty and the transactions therein contemplated is a valid and irrevocable choice of law and the submission by the Guarantor to the jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the City and State of New York and the High Court of Justice in England is a valid submission to the jurisdiction of such courts. In the event that a judgment of any of such courts were obtained after service of process in the manner specified in the Loan and Guaranty Agreement, the same would be 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 (i) that the foreign court did not have jurisdiction in accordance with the jurisdictional rules of the foreign court; (ii) want of notice to the party of the foreign proceeding (iii) collusion or fraud; (iv) clear mistake of law or fact. A copy of this opinion may be delivered by you to each Lender, each of which may rely upon such copy as if it were an original addressed solely to such Lender Very truly yours, For the Minister of Justice: (SGD.) JESUS N. BORROMEO Deputy Minister