DOJ Opinion No. 189, s. 1982

DOJ OPINION NO. 189 , s. 1982 August 30, 1982 The Nippon Credit Bank, Ltd. 13-10, Kudan-Kit 1-chome Chiyoda-ku, Tokyo 102 Japan as Agent for the Landers listed in Schedule I attached to the Loan and Guaranty Agreement referred to below Re: Loan and Guaranty Agreement dated as of August 23, 1982 Gentlemen: As the 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 August 23, 1982 (the "Loans and Guaranty Agreement") by and among Development Bank of the Philippines as Borrower (the "Borrower"), the Republic as Guarantor (the "Guarantor"), the landers named in Schedule I thereto (the "Landers"), the managers named therein (the "Managers") and The Nippon Credit Bank, Ltd. acting as agent for the Landers (the "Agent"), providing for loans (the "Loans") to the Borrower in the aggregate principal amount not to exceed Eleven Billion Yen (11,000,000,000), subject to the terms and conditions stated therein. 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 (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: 1. Full Powers, dated August 19, 1982, of Minister Placido Mapa, Jr. issued by the President of the Republic; 2. Master of the Central Bank, dated August 30, 1982 extending "final approval" to the loan covered by the Loan and Guaranty Agreement; 3. Exchange Assurance Certificate, dated August 30, 1982, issued by the Central Bank of the Republic; and 4. Letter of Consul General Erlinda Basilio, dated August 23, 1982, accepting her designation as service of process agent. 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 assumptions 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 Japan or the laws of any jurisdiction other than the Republic, Code not pass upon and express no opinion in respect of those matters governed by or construed in accordance with any of such laws. prLL Based upon and subject to the foregoing, X of the opinions 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 and any documents and instruments required thereunder to be executed and delivered by the Guarantor and to perform and observe the terms and conditions of the Loan and Guaranty Agreement, the Guaranty and any documents and instruments required thereunder. (2) The Guarantor has taken all unnecessary legal action to authorize the executives, delivery and performance of the Loan and Guaranty Agreement and any document and instruments required thereunder to be executed and delivered by the Guarantor. (3) Therein so 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 executive and delivery of the Loan and Guaranty Agreement, the Guaranty or any document or instrument required thereunder to be executed and delivered by the Guarantor 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 Agreements, the Guaranty and any documents and instruments required thereunder to be executed and delivered by Guaranty have been obtained, and all such registrations 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 of the Philippine and any foreign exchange and transfer permits regarding Yen payments thereunder, have been obtained and are in full force and effect. (5) The Loan and Guaranty Agreement and each document or instrument required thereunder to be executed and delivered by the Guarantor 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 due inquiry, the Guarantor is not in default under any agreement, obligation or duty 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 Guarantor Agreement, the Guaranty or any document or instrument required thereunder to be executed and delivered by the Guarantor. (7) The obligations of the Guarantor under the Loan and Guaranty Agreement, the Guaranty and any documents and instruments required thereunder to be executed and delivered by the Guarantor are direct, unconditional, enforceable and general obligations of the Guarantor for which the full sight and credit of the Guarantor is pledged, and which rank at least 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 on or with respect to any present or future assets, revenues or ingrate to the receipt of income of the Guarantor except as permitted under Action 8.05 of the Loan and Guaranty Agreement. LexLib (8) The Guarantor is a member in good standing of the INF and is fully eligible to use its General Account and its Special Drawing Account with the INF in accordance with the Articles of the Agreement of the INF. (9) The Guarantor is subject to suit with respect to its obligations under the Loan and Guaranty Agreement and each document or instrument required thereunder to be executed and delivered by the Guarantor, and the execution, delivery and performance by the Guarantor of the Loan and Guaranty Agreement and each document or instrument required thereunder to be executed and delivered by the Guarantor constitute private commercial acts rather than governmental and public acts. The waiver of any rights to sovereign immunity contained in Section 12.07 of the Loan and Guaranty Agreement is irreversibly binding in the Guarantor, its successors and assign. (10) The qualification by the Agent or any Manager or Lender for admission to do business under the laws of the Republic does not constitutes a condition to, and the failure to so qualify will not affect the exercise or the enforcement by the Agent or any Manager or Lender or any right, privilege or remedy afforded to the Agent or any Manager or Lender pursuant to the Loan and Guaranty Agreement, the Letter Agreements, the Guaranty or any document or instrument required thereunder and the performance by the Agent or any Manager or Lender of any action required or permitted under the Loan and Guaranty Agreement, the Letter Agreement, the Guaranty or any document or instrument required thereunder 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 nor any Manager or Lender is or will be deemed to be resident or domiciled, to have an office or to be doing business, in the Republic solely by reason of the execution, delivery, performance or enforcement of the Loan and Guaranty or any document or instrument required thereunder. (11) There as no tax, fee, import or other charge or restriction imposed by the Republic on the Loan and Guaranty Agreement, the Guaranty or any document or instrument required thereunder on any payments to be made by the Guarantor under the Loan and Guaranty Agreement, the Guaranty or any document or instrument required thereunder and the Guarantor is not required or permitted by any present as or regulation of the Republic to deduct or withhold 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, the Guaranty or any document or instrument required thereunder. (12) Except for the approval of the Central Bank of the Philippines, 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 document or instrument required thereunder or any part thereof that any each agreement or instrument be filed, registered or recorded in any public office or elsewhere or that any other instrument relation thereto be executed, delivered, filed, registered or recorded. (13) The transactions contemplated by the Loan and Guaranty Agreement, the Guaranty and the documents and instruments required thereunder 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 Japanese law to govern the validity, construction and performance of the Loan and Guaranty Agreement, the Guaranty and the documents and instruments required thereunder and the transactions therein contemplated is a valid and irrevocable choice of law and the submission by the Guarantor to the jurisdiction of the Tokyo District Court, Tokyo, Japan is a valid submission to the jurisdiction of such court. In the event that a judgment such court 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 interests, and would be enforceable in the courts of the Philippines unless the party against from the judgment was obtained is able to rebut the presumption by acknowledge (i) that the foreign court did not have jurisdiction in accordance with the jurisdiction rules of the foreign court, (ii) want of notice to party of the foreign proceeding, (iii) exclusion,(w) framed, or (v) clear mistakes of law or fact. (15) The documents referred to above which I have reviewed as conditions presented to the initial Drawdown of the Loan are responsive to and is in accordance with the requirement and to Section 1.01 of the Loan and Guaranty Agreement and are is form and substances satisfactory to us. LexLib A copy of this opinion may be delivered by you to each Lander, such of which may easy upon such copy as if it were as original addressed solely to such Lander. Although this opinion is dated August 30, 1982, it may be relied upon by you and each Lander as if this opinion were dated the date of the initial Drawdown of the Tranche A Commitments under the Loan and Guaranty Agreement and all opinions expressed herein shall continue with the same force and effect as if expressed as such date unless you receive notice from us to the contrary prior to such date. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice