DOJ Opinion No. 007, s. 1983

DOJ OPINION NO. 007 , s. 1983 January 13, 1983 To: The Dai-Ichi Kangyo Bank, Limited 1-1-5, Uchisaiwai-cho, Chiyoda-ku Tokyo 100, Japan For itself and as Agent for the Banks, and to such banks, all as defined in the Loan Agreement Re: National Power Corporation Japanese Yen 1,900,000,000 Loan Facility Guaranteed by The Republic of the Philippines Gentlemen : As Minister of Justice of the Republic of the Philippines (the "Republic"), I have been requested to give this opinion to you in connection with the Guarantee (The "Guarantee") dated August 27, 1982 made by the Republic (in such capacity, the "Guarantor") under which the Guarantor has agreed to guarantee the obligations of National Power Corporation under a Loan Agreement (the "Agreement") dated August 27, 1982 made between (1) National Power Corporation (the "Borrower") (2) The Dai-Ichi Kangyo Bank, Limited, as Manager (in such capacity, the "Manager") (3) the several banks and financial institutions the respective names and offices of which are set forth in the Schedule to the Agreement (together the "Banks") and (4) The Dai-Ichi Kangyo Bank, Limited as agent for the Banks (in such capacity, the "Agent") under which the banks have agreed to make available to the Borrower a loan facility not exceeding the maximum principal amount of Japanese Yen 1,900,000,000. Words and expressions defined in the Agreement shall bear the same meaning in this letter. After examining all documents, including an executed copy of the Agreement and the Guarantee and making all inquiries which I consider necessary and having regard to the laws of the Republic which I consider relevant, I am of the opinion that: LexLib 1. The Guarantor has the power and authority to own its assets. 2. The Guarantor has the power and is fully authorized, and will continue to be fully authorized, to enter into and perform the Guarantee and all necessary action has been taken to authorized the execution, delivery and performance of the Guarantee in accordance with its terms. 3. The Guarantee as executed and delivered constitutes, and will continue to be, the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms. 4. The Guarantor is not breach of (1) any agreement relating to External Indebtedness to which it may be bound; or (ii) any other debt obligations in excess of the equivalent of United States Dollars 10 Million (at current rates of exchange) to which it is a party or by which it may be bound, which breach would be material in the context of the Guarantee and would have an adverse affect on the Guarantor or might impair the Guarantor's ability to perform its obligations thereunder. 5. No claim, litigation, arbitration or administrative proceedings are presently current or pending or, to the knowledge of the Guarantor, threatened, which claims litigation, arbitration or administrative proceedings, as the case may be, would be material in the context of the Guarantee and would have an adverse effect on the Guarantor or might impair the Guarantor's ability to perform its obligations thereunder. 6. It is not necessary or advisable under the laws of the Republic to file, register or otherwise record the Guarantee or any other document relating thereto in any public office or elsewhere in order to ensure the validity, effectiveness or enforceability of the Guarantee. 7. There are no stamp taxes, taxes, withholdings, levies, registration taxes, duties or similar charges now due, or which under the present laws of the Republic could in the future become due (except such taxes which the Guarantor is required under the General Laws of the Republic to withhold), in connection with the execution or delivery of the Guarantee or on any payment to be made by the Guarantor pursuant thereto, in connection with the enforcement thereof or on the admissibility into evidence thereof. 8. All information and other data relating to the Guarantor given in writing to the Banks are complete and correct at the date thereof and do not omit any material fact necessary to make any such information and other data not misleading as at that date. Since the date such written information was given there has been no material advance change in the Guarantor's financial condition or results of operations. 9. The obligations of the Guarantor under the Guarantee constitute, and will continue to constitute, direct unconditional, unsecured and general obligations of the Guarantor and rank, and will continue to rank, at least pari passu with all of the present and future outstanding unsecured and unsubordinated External Indebtedness (as defined in the Agreement) issued, created or assumed by the Guarantor. 10. The Guarantor has not created any mortgage, charge, lien, pledge or other encumbrance over any of its property, assets or rights to receive income by way of specific security for any external loan, debt or other external liability or obligation now existing, other than (a) liens, charges, encumbrances or other security interests created on property at the time of purchase thereof to secure payment of the purchase price of such property or (b) liens arising in the ordinary course of banking transactions securing a debt maturing not more than one year after its date. 11. Any permission, order, consent, license, approval or authorization of any governmental authority, bureau or agency in the Republic required in connection with the execution, delivery or performance, legality, validity or enforceability of the Guarantee has been obtained. LexLib 12. The Guarantor is not required by the laws of the Republic to make any deduction or withholding from any payment to be made by the Guarantor under the Guarantee, except such taxes which the Guarantor is required under the General Laws of the Republic to withhold. 13. The execution, delivery and performance of the Guarantee by the Guarantor will not in any respect exceed any power granted to it by, or violate or conflict with, or result in any breach of, any provision of any law, statute, decree, rule or regulation or any order of any governmental authority, agency or court of the Republic and further none of the terms of the Guarantee or of any procedures contemplated in the Guarantee in contravention of, or is alleged (to the best of my knowledge after diligent investigation) by any applicable authority or body to be void, voidable, prohibited or unenforceable under the laws of the Republic. 14. Neither the Guarantor nor any of its property or assets has any right to sovereign or other immunity from judicial proceedings, from the execution of judgment or attachment of such property or assets in the Republic. The submission by the Guarantor to the non-exclusive jurisdiction of the courts of England and the New York State and Federal Courts sitting in New York City and the Tokyo District Court pursuant to Paragraph 12 of the Guarantee, is effective to permit such courts to exercise jurisdiction over the Guarantor in any sections or proceedings brought in such courts, provided that each such court is entitled under the laws or regulations applicable to it to exercise such jurisdiction. 15. The execution and delivery of the Guarantee by the Guarantor constitutes the private and commercial act of the Guarantor. 16. The express choice by the Guarantor that the governing law of the Guarantee by Japanese Law under paragraph 12 of the Guarantee is valid under the private international law of the Republic and Japanese law would accordingly be applied by the courts of the Republic if the Guarantee or any claim made under it comes under their jurisdiction. A court of the Republic would, however, also refer to the laws, decrees, and administrative regulations of the Republic upon the capacity and the authority of the Guarantor to provide guarantee in particular. A judgment of the courts of England or any New York State or Federal Court sitting in New York City or the Tokyo District Court rendered in an action brought in accordance with applicable law to enforce the obligations of the Guarantor under the Guarantee would be enforceable in the Republic against the Guarantor subject to the defenses of lack of jurisdiction or notice to party collusion, fraud or clear mistake of law or fact. LexLib 17. The qualification by the Agent or the Banks for admission to do business under the laws of the Republic or any political sub-division thereof does not constitute a condition to, and the failure to so qualify does not affect, the exercise by the Agent or the Banks (solely by reason of the execution and delivery of this Guarantee), of any right, privilege or remedy afforded to the Agent or the Banks in, under or in connection with, the Guarantee or the enforcement of any such right, privilege or remedy. The performance by the Agent or the Banks of any action required or permitted under the Guarantee will not violate any law or regulation of the Republic or any political subdivision thereof or result in any tax liability upon, or other unfavorable consequences for, the Agent or any of the Banks pursuant to the laws of the Republic or any political sub-division or taxing authority thereof. 18. The Guarantor is a member in good attending of the International Monetary Fund (the "IMF") and is fully eligible to utilize its Special Drawing Right and the General Resources Account of the IMP in accordance with, and as defined in, the Articles of Agreement of the IMF. The Agent and the banks may continue to rely on this opinion on the first Drawdown date under this Agreement unless notice to the contrary has been given prior to such date. prcd Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice