DOJ Opinion No. 237, s. 1989

DOJ OPINION NO. 237 , s. 1989 December 19, 1989 To: The Export-Import Bank of Japan 4-1, Ohtemachi 1-chome, Chiyoda-ku, Tokyo, (100), Japan Gentlemen : I am the Secretary of justice of the Republic of the Philippines (the "Philippines") and as such have advised upon the Loan Agreement dated November 30, 1989 (the "Agreement") between the Export-Import Bank of Japan (the "Eximbank") and the Republic of the Philippines as borrower (the "Borrower"). All terms and expressions defined in the Agreement shall bear the same meaning herein save where the context otherwise requires. This legal opinion is furnished you pursuant to Article X(1) (i) of the Agreement. After examining all relevant documents, including a copy of the Agreement and such other documents as I have considered necessary, and making all inquiries which I considered necessary or desirable for the opinion hereinafter expressed and having regard to the laws and regulations of the Philippines to which this opinion is limited, I am of the opinion that: (a) The Borrower has full power and authority to enter into the Agreement and to perform all of its obligations in accordance with the terms and conditions set forth in the Agreement; (b) The Borrower has taken and completed all legal action and/or procedures necessary to authorize the Borrower to execute, deliver and perform the terms and conditions of the Agreement; (c) All authorizations by, approvals and consents of, or registration with, the Government of the Philippines or of any agency, department or commission thereof which are necessary for (1) the execution delivery or performance of the Agreement or any agreement or instrument required thereunder or the validity and enforceability thereof (ii) the borrowing of the Loan and (iii) the payment by the Borrower of all sums which it may be liable to pay thereunder in Yen (including, without limitations the approval of the Central Bank of the Philippines of the Agreement) have been obtained; (d) The Agreement has been duly executed and delivered by the duly authorized representative of the Borrower and constitutes the legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms; (e) The execution, delivery and performance of the Agreement and all instruments or agreements required thereunder do not contravene, violate or constitute a default under (a) any provision of any agreement or other instrument relating to External Indebtedness to which the Borrower is a party or by which the Borrower or any of its assets is or may be bound; (b) any treaty, law or regulations applicable to the Borrower; or (c) any judgment, injunction, order or decree binding upon the Borrower or any of its assets, nor would the same result in creation or imposition of any Encumbrance on any asset of the Borrower; (f) To the best of my knowledge, no event has occurred and is continuing from the making of any Disbursement under the Agreement which constitutes or which, upon the lapse of time or the giving of notice or both would become an Event of Default or a default under any agreement, mortgage, indenture note or other instrument relating to External Indebtedness to which the Borrower is a party or by which the Borrower or any of its assets is or may be bound; (g) To the best of my knowledge, there are no legal, administrative or other actions, claims or other proceedings current, pending against the Borrower which if decided adversely would materially and adversely affect the financial condition, business or operations of the Borrower or would materially and adversely affect the Borrower's ability to perform its obligations under the Agreement or which question the legality, validity or binding effect of any provision of the Agreement; (h) Under the laws of the Philippines there is no Tax imposed (whether by withholding or otherwise) on or by virtue of the execution and delivery of the Agreement or any document or instrument to be executed and delivered thereunder, the performance thereof or the admissibility in evidence or enforcement thereof, or on any payment required to be made thereunder; (i) The obligation and liabilities of the Borrower under the Agreement are the unconditional and general obligations of the Borrower and rank at least pari passu with all other present or future unsecured and unsubordinated External Indebtedness (both actual and contingent) of the Borrower; (j) The Borrower is subject to civil and commercial law with respect to its obligations under the Agreement. The execution and delivery of the Agreement constitute, and the performance by the Borrower of and compliance with its obligations under the Agreement will constitute, private and commercial acts done and performed for private and commercial purposes under the laws of the Philippines and neither the Borrower nor any of its assets has any right of immunity from suit, execution, attachment or any other legal process with respect to its obligations under the Agreement in the Philippines; (k) In any proceeding in the Philippines to enforce the Agreement, the choice of Japanese law as the governing law thereof will be recognized and such law will be applied. The waiver of immunity by the Borrower, the irrevocable submission of the Borrower to the non-exclusive jurisdiction of the Tokyo District Court and the appointment by the Borrower of the Tokyo Process Agent are legal, valid, binding and enforceable and any judgment obtained in Japan will be recognized and enforceable against the Borrower and its assets in the Philippines, unless it is shown that the judgment was obtained without jurisdiction or notice to the parties or that said judgment was based on collusion, fraud or clear mistake. (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. prcd (m) Except for final approval of, and registration with, the Central Bank of the Philippines, there is no requirement to file, register or otherwise record the Agreement or any agreement or instrument required thereunder in any public office or elsewhere in the Philippines to ensure the validity, legality, effectiveness, enforceability or admissibility in evidence thereof. Very truly yours, (SGD.) SEDFREY A. ORDOEZ Secretary of Justice