DOJ Opinion No. 146, s. 1987

DOJ OPINION NO. 146 , s. 1987 December 14, 1987 To : The Export-Import Bank of Japan 4-1, Ohtemachi 1-chome Chiyoda-ku, Tokyo 100, Japan Attention : Director Loan Department I (Asia and Oceania) Gentlemen : I am the Secretary of Justice of the Republic of the Philippines ("Philippines") and as such have advised the Borrower in connection with a loan agreement dated October 1, 1987 between the Export -Import Bank of Japan and the Borrower (the "Agreement"). All terms and expressions defined in the Agreement shall bear the same meaning the herein save where the context otherwise requires. This legal opinion is furnished to your pursuant to Section 1(i) of Article XI of the Agreement and at the request of the Borrower. After examining all relevant documents, including so executed copy of the Agreement and such other documents as I have considered necessary, and making all enquiries which I consider necessary or desirable for the opinion hereafter expressed and having regard to the laws and regulations of the Philippines, I am of the opinion that : (a) the Borrower has the full power and authority to enter into the Agreement, to borrow there under and to perform and observe the terms and conditions thereof; prcd (b) the Borrower has taken and completed all necessary legal and other action and/or procedures to authorize the Borrower to execute and deliver the Agreement, to borrower and there under, and/or 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 and/or advisable (i) to authorize the execution and delivery of the Agreement and/or the borrowing by the Borrower of the Loan and/or the performed and observance of the terms and conditions of the Agreements and/or (ii) for the legality, validity, enforceability and admissibility in evidence thereof and/or (iii) for the payment by the Borrower of all sums which it may or will be liable to pay thereunder in Yen and/or for the conversion of requisite amounts of other currencies, including of the Philippines, into Yen to effect the same, have been duly effected, completed and/or obtained and are in full force and effect; (d) the Agreement has been duly executed and delivered by the duly authorized representative of the Borrower; (e) there is no provision of any agreement, treaty, convention or arrangement, 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 regulations of the Philippines which would be or is contravened by the execution and delivery 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 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) to the best of my knowledge and belief, no event has occurred and is continuing or has resulted from the making of any disbursement under the Agreement, which constitutes an Event of Default; (h) all payment to be made by the Borrower under the Agreement may and shall be made in full and free and clear of and without deduction or withholding for or on account to Taxes but in any event if any Taxes must by law be deducted or withheld therefrom, the Borrower's obligation under Section (3) of Article VII thereof is its legal, valid and binding obligation; (i) to the best of my knowledge and belief, the Loan under the World Bank Loan Agreement is and remains available for utilization or, as the case may be, the Borrower has fully borrowed such loan, and the World Bank Loan Agreement remains in full force and effect; (j) to the best of my knowledge and belief, the Borrower is not in default under or in breach of any provision of the World Bank Loan Agreement as determined by the World Bank; (k) the execution and delivery by the Borrower of the Agreement constitute, and the Borrower's borrowing of the Loan and its 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 of the laws of the Philippines and under such laws, the Borrower is not entitled to claim any immunity from suit, execution, attachment or other legal process in any jurisdiction including the Philippines provided that should the Borrower ever become entitled to such immunity, the waiver thereof contained in Article XIII (6) of the Agreement is the legal, valid and binding obligation of the Borrower; prcd (l) in any proceedings in the Philippines for the enforcement of the Agreement, the choice of Japanese law as the governing law thereof will the recognized and be given effect. Any award obtained in Japan against the Borrower in connection with any proceedings 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 parties or that said award a was base on collusion fraud or clear mistake of law or fact; (m) the Agreement is in proper legal form under the law of the Philippines and is capable of enforcement in the courts of the Philippines; (n) the Borrower's agreement to the use of arbitral proceedings in the terms of the Agreements is legal, valid and binding. The submissions by the Borrower to the non-exclusive jurisdictions of the courts of the Philippines and the Tokyo District Court pursuant to Section (3) of Article XIII of the Agreement, are each effective to permit such courts to exercise jurisdiction over the Borrower in any actions or proceeding brought in such courts for purpose of converting any award obtained in Japan into a judgment and/or enforcing the same. The appointment and designation by the Borrower of its agent to accept service of process out the Tokyo District Court in connection with any such actions or proceeding, pursuant to Section (4) of Article XIII of the Agreement , is its legal, valid and binding appointment and designation; (o) to the best of my knowledge and belief, save as permitted by Section (16) Article IX thereof, there exists no Encumbrance over securing any External Indebtedness over any or all of the present of future undertaking revenues or assets of the Borrower; (p) the obligation and liabilities of the Borrower (both actual and contingent) under the Agreement, including, without limitation the loan, shall constitute irrevocable direct, unconditional and general obligations of the Borrower which an to at least pari passu in priority of payment with all other existing unsecured External Indebtedness (other than subordinated External Indebtedness), both actual and contingent, of the Borrower; (q) except for approval of the Central bank of the Philippines, there is no requirement of the file, register or otherwise record the Agreement required thereunder in any public office or elsewhere to ensure the validity, legality, effectiveness, enforceability or admissibility in evidence thereof; (r) 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. prcd Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice