DOJ Opinion No. 245, s. 1982

DOJ OPINION NO. 245 , s. 1982 November 10, 1982 The Export-Import Bank of the United States 811 Vermont Ave. N.W. Washington, D.C. 20571 U.S.A. Union Bank of Switzerland, as Agent for each of the Banks named in the Credit Agreement hereafter referred to 14 Wall Street New York, 19004 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 Credit Agreement dated as of March 25, 1982 (the "Agreement") by and among the National Power Corporation as borrower (the "Borrower"), the Republic of the Philippines as guarantor (in this capacity the "Guarantor"), the several commercial banking institutions which are parties to the Agreement (individually "a Bank and collectively the "Banks"), Union Bank of Switzerland, as agent for the Banks (the Agents") and the Export-Import Bank of the United States (the Eximbank"),pursuant to which the Banks have established Credits (the "Credit") in favor of the Borrower on the terms and conditions set forth therein. Terms defined in the Agreement have the same meaning when used in this opinion. In connection with the preparation of this opinion, I have examined the 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 purpose 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 Agreement, issue the Republic Guarantee and perform and observe the terms and conditions of the Agreement and the Republic Guarantee. LexLib 2. All authorizations and approvals, including final Central Bank approval and certification of foreign exchange availability with respect to Swiss France and U.S. dollars necessary to make all required payments under the Agreement and the Republic Guarantee, of the Government of the Philippines, or of any agency, department or instrumentality thereof, which are necessary or advisable (a) to authorize the Guarantor's execution and delivery of the 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 and enforceability of the Agreement and the Republic Guarantee have been obtained and are 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, department 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 it or its properties or revenues may be subject is or will 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. 4. The republic Guarantee constitutes the direct, general, unconditional and irrevocable 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 obligation of the Guarantor under the 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, except as permitted under subparagraph (4) of paragraph E of Article IV of the Agreement. 5. No legal proceedings are pending or, to the best of my knowledge and belief, threatened before any court or governmental agency which might restrain or enjoin or have the effect or 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 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 Agreement, the Notes and the Republic Guarantee in the proper legal form for the enforcement thereof against the Guarantor under those laws. 7. The consents to jurisdiction and service of process by the Guarantor set forth in paragraph A of Article X of the Agreement are valid, binding and effective under the laws of the Philippines to cover on the courts specified in the paragraph jurisdiction over the Guarantor and its properties and revenues. 8. In any action brought under the Agreement, the Republic Guarantee or the Notes the courts in the Philippines would recognize the choice-of-law provisions set forth paragraph J of Article XII of the Agreement the apply that law in construing the Agreement and the Republic Guarantee, the Notes and all matters relating thereto. 9. The waiver of sovereign immunity by the Guarantor set forth in paragraph B of Article X of the Agreement has been validly authorized and executed in Accordance with Philippine law and is effective and irrevocably binding on the Guarantor. LexLib This opinion is limited to matters of law of and within the Philippines. I express no opinion with respect to the laws of any other jurisdiction. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice