DOJ Opinion No. 157, s. 1982

DOJ OPINION NO. 157 , s. 1982 July 22, 1982 Forter Wheeler Energy Corporation 110 South Orange Avenue Livington, New Jersey 07039 U.S.A. Export-Import Bank of the United States All Vermont Avenue, N.W. Washington, D.C. 20571 U.S.A. Export-Import Bank of the United States 811 Vermont Avenue, N. W. Washington, D.C. 20571 U.S.U. Re: Eximbank Credit No. 7121 Gentlemen: As the Minister of Justice of the Republic of the Philippines (the "Republic"), I have been requested to render an opinion with respect to the applicable laws of the Republic in connection with Credit Agreement, dated as of March 30, 1982, among the National Power Corporation as borrower (the "Borrower"), the Republic of the Philippines as guarantor (the "Guarantor"), the Export-Import Bank of the United States (the "Eximbank") and the Foster Wheeler Energy Corporation, as lenders providing for a credit of US$28,400,000 evidenced by promissory notes substantially in the form provided in the Credit Agreement (the "Notes"). All terms used herein shall be the meaning set forth in the Credit Agreement, except as otherwise defined herein. dctai In connection herewith, I have examined the Constitution, relevant Civil Code provisions, presidential decrees, laws and regulations of the Republic, the originals or copies, photocopied certified or otherwise identified to my satisfaction, of all such corporate and official records of the Borrower and of all such official records, regulations, certificates, ruling and orders of officials and agencies of the Government of the Republic, certificates of officials and other representatives of the Borrower, and of all such agreements, documents, and matters as I have considered necessary or desirable for the opinion hereinafter expressed including, but not limited to, the following documents: (a) an executed copy of the Credit Agreement; (b) the charter of the Borrower (Republic Act No. 6395, as amended); (c) Full Powers, dated March 19, 1982, issued by the President of the Republic in favor of Prime Minister Cesar Virata, or in his absence, Deputy Minister Victor Macalincag or Ambassador Eduardo Romualdez; (d) Letter of the Central Bank of the Republic, dated May 26, 1982, granting "final approval and registration" to credit; and (e) Exchange Assurance certificate of the Central Bank of the Republic, dated June 21, 1982. True and correct copies of the documents (c), (d), and (e) mentioned above are attached to this opinion. In such examination, I have assumed the genuineness of all signatures and the authenticity 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 materials to the opinions expressed herein, I have relied upon certificates of officers and other representatives of the Borrower. As I am qualified to render this opinion regarding the laws of the Republic and do not represent myself to be familiar with the laws of the United States of America or of any state thereof, or the laws of any jurisdiction other than the Republic, I do not pass upon, or express opinion in respect of matters governed by or construed in accordance with any such laws. 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 this Agreement, issue the Republic Guarantee and perform and observe the terms and conditions of this Agreement and the Guarantee; 2. All authorizations and approvals of the Government of the Philippines, or of any agency, ministry or instrumentality thereof, which are necessary or advisable (a) to authorize its execution and delivery of this Agreement, its issuance of the Republic Guarantee and its and the Borrower's performance and observance of their respective terms and conditions and (b) for the validity, binding effect and enforce ability of this Agreement and the Republic Guarantee have been obtained and are binding and enforceable and in full force and effect; 3. No constitutional provision, law, ordinance, decree or regulation of the Government of the Philippines, or of any agency, ministry or instrumentality thereof, no provision of any instrument affecting the powers and procedures of the Guarantor, and no provision of any agreement or other instrument binding on the Guarantor or to which be contravened by its execution and delivery of this Agreement, the issuance of the Republic Guarantee, or its performance and observance of the terms and conditions of this Agreement or the Republic Guarantee; LexLib 4. The Republic Guarantee constitutes the direct, general and unconditional obligation of the Republic of the Philippines 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 of the Philippines is pledged. The obligations of the Guarantor hereunder 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 (1) liens, pledges, mortgages, charges or other encumbrances upon the Guarantor's property established at the time of purchase 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 creating; 5. No legal proceedings are pending or, to the best of its knowledge and belief, threatened before any court or government agency which might restrain or enjoin or have the effect of restraining or enjoining its performance or observance of the terms and conditions or in any other manner question the validity, binding effect or enforceability of this 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 this Agreement, the Notes and the Republic Guarantee in the proper legal form under the laws of the Philippines 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 X are effective under the laws of the Philippines to confer on the courts specified in that paragraph jurisdiction over the Guarantor and their properties and revenues; LLjur 8. In any action brought under this Agreement, the Notes or the Republic Guarantee, the courts in the Philippines would recognize the choice of law provision set forth in paragraph J of Article XI and apply that law in construing this Agreement, the Notes and the Republic Guarantee and all matters relating there to; and 9. The waiver of sovereign immunity by the Guarantor set forth in paragraph B of Article X is effective and irrevocably binding on the Guarantor. Very truly yours, (SGD.) RICARDO C. PUNO Ministry of Justice