DOJ Opinion No. 150, s. 1984

DOJ OPINION NO. 150 , s. 1984 October 19, 1984 The Export-Import Bank of the United States 811 Vermont Ave., N.W. Washington, D.C. 20571 U.S.A. American Express Credit Corporation American Express Plaza New York, New York 10004 U.S.A. Gentlemen : As the Minister of Justice of the Republic of the Philippines (the "Republic") I have been asked to give my opinion with respect to the amendment to Credit Agreement dated as of June 15, 1984, (the "Amending Agreement") which amends certain provisions of the Credit Agreement dated December 12, 1983 (the "Original Agreement") by and among the National Power Corporation as borrower (the "Borrower"), the Republic as guarantor (in his capacity, the "Guarantor"), American Express Credit Corporation as lender (the "Lender"), American Express International Banking Corporation as agent (the "Agent") and the Export-Import Bank of the United States ("Eximbank"). Under the Amending Agreement, the amount of the credit has been increased from $100 million to $204.5 million. llcd In connection with the preparation of this opinion I have examined the Amending Agreement, the Notes, such corporate records, certificates, consents, authorizations and other instruments and such statutes and questions of law as I have deemed necessary and appropriate for the purposes of this opinion. Based upon and subject to the foregoing, I am of the opinion that: 1. The Guarantor has full power, authority and legal right, and has taken all legal and other action necessary or advisable to authorize it, to execute and deliver the Amending Agreement, issue the Republic Guarantee and perform and observe the terms and conditions of the Amending Agreement and the Republic Guarantee. 2. All authorizations and approvals of the Government of the Republic, or of any agency, department or instrumentality thereof, and all filings, registrations and other procedures which are necessary or advisable (a) to authorize the Guarantor's execution and delivery of the Amending Agreement and the issuance of the Republic Guarantee and the Guarantor's performance and observance of their terms and conditions and (b) for the validity, binding effects and enforceability of the Amending Agreement and the Republic Guarantee have been obtained and in full force and effect. 3. No constitutional provision, law, ordinance, decree or regulations of the Government of the Republic or of any agency, department or instrumentality thereof, no provision of any instrument affecting the powers and procedures of the Guarantor, and no provisions of any agreement or other instrument binding on the Guarantor or to which or its properties or revenues may be subject is or will be contravened by the execution and delivery of the Amending Agreement, the issuance of the Republic Guarantee, or its performance and observance of the terms and conditions of the Amending Agreement or the Republic Guarantee. 4. The Republic Guarantee constitutes the direct, general, unconditional and irrevocable obligation of the Republic which is valid, binding and enforceable on the Guarantor in accordance with its terms and conditions and for the performance of which the full faith and credit of the Republic is pledged. The obligations of the Guarantor under the Amending Agreement and the Republic Guarantee rank at least pari passu with all other existing unsecured External Indebtedness of the Guarantor and, at the date hereof there is no External Indebtedness of the Guarantor which is secured by or otherwise benefits from any encumbrance on or with respect to any present or future revenue or assets of the Guarantor; provided, however, that the foregoing shall not apply to (i) liens, pledges, mortgages, charges or other encumbrances upon the Guarantor's property established at the time of purchase of such property to secure payment of the purchase price of such property , (ii) liens or charges arising in the ordinary course of banking transactions and securing a debt maturing not more than one year after its date of creation. LexLib 5. No legal proceedings are pending or, to the best of my knowledge and behalf, threatened before any court or governmental agency which might restrain or enjoin or have the effect of restraining or enjoining the Guarantor's performance or observance of the terms and conditions or in any other manner question the validity, binding effect or enforceability of the Amending Agreement or the Republic Guarantee. 6. No further action (including filing, recording, acknowledging or paying of any stamp or similar tax ) is necessary or advisable in order to make the Amending Agreement, the Notes and the Republic Guarantee in the proper legal form under the laws of the Republic for the enforcement thereof against the Guarantor available under those laws. 7. The consent to jurisdiction and service of process by the Guarantor set forth in paragraph A of Article XI of the Original Agreement are effective under the laws of the Republic to confer on the courts specified in that paragraph jurisdiction over the Guarantor and its properties and revenues. 8. In any action brought under the Amending Agreement, the Notes or the Republic Guarantee, the courts in the Republic would recognize the choice-of-law provision set forth in paragraph E of Article XIII of the Original Agreement and apply that law in construing the Amending Agreement, the Notes and the Republic Guarantee and all matters relating thereto. 9. The waiver of sovereign immunity by the Guarantor set forth in paragraph B of Article XI of the Original Agreement is effective and irrevocably binding on the Guarantor. This opinion is limited to matters of law of and within the Republic. I express no opinion with respect to the laws of any other jurisdiction. Very truly yours, (SGD.) ESTELITO P. MENDOZA Minister of Justice