DOJ Opinion No. 253, s. 1982

DOJ OPINION NO. 253 , s. 1982 November 16, 1982 The Bank of Tokyo, Ltd. 6-3 Nihombashi, Hongokucho 1-chome, Ohuo-ku, Tokyo as agent for the banks and financial institutions named as Lenders in the Loan an Guaranty Agreement referred to below. Re: National Power Corporation Japanese Yen 5,400,000,000 Loan Facility Guaranteed by The Republic of The Philippines Gentlemen : As Minister of Justice of the Republic of the Philippines, I have been requested to render an opinion in connection with the Guarantee (the "Guarantee") dated June 8, 1982 made by the Republic of the Philippines (the "Guarantor") under which the Guarantor has agreed to guarantee the obligations of National Power Corporation under a Loan Agreement dated June 8, 1982 made between (1) National Power Corporation (the "Borrower"), (2) The Bank of Tokyo, Ltd., as Lead Manager and the several banks and financial institutions the respective names and offices of which are set forth in the Schedule to the Agreement under the headings "Lead Manager", "Managers" and "Co-Managers" (the "Managers"), (3) the several banks and financial institutions the respective names and offices of which are set forth in the Schedule to the Agreement (the "Banks"), and (4) The Bank of Tokyo, Ltd. as agent for the Banks (the "Agent") under which the Banks have agreed to make available to the Borrower a loan facility not exceeding the maximum principal amount of P5,400,000,000. Words and expressions defined in the Agreement shall bear the same meaning in this letter. LexLib After examining all documents, including an executed copy of the Guarantee and making all inquiries which I consider necessary and having regard to the laws of the Republic of the Philippines which I consider relevant I am of the opinion that: 1. The Guarantee executed an delivered constitutes the legal, valid and binding obligation of the Guarantor enforceable in accordance with its terms. 2. The obligations of the Guarantor under the Guarantee constitute the direct, unconditional, unsecured and general obligations of the Guarantor and will rank and do rank at least pari passu with all other outstanding unsecured and unsubordinated External Indebtedness from time to time issued, created or assumed by the Guarantor, whether now or in the future. LibLex 3. 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 of its External indebtedness 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. 4. Any permission, order, consent, license, approval or authorization of any governmental authority, bureau or agency in the Republic of the Philippines required in connection with the execution, delivery or performance, legality, validity or enforceability of the Guarantee has been obtained. 5. Other than the filing of an executed copy of the Agreement with the Central Bank, it is not necessary or advisable under the Laws of the Republic of the Philippines 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. 6. There are no stamp taxes, levies, registration taxes, duties or similar charges now due, or which under the present laws of the Republic of the Philippines could in the future become due, 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 of the Agreement or the Guarantee or on the admissibility into evidence of the Guarantee. 7. The Guarantor is not required by the laws of the Republic of the Philippines to make any deduction or withholding from any payment to be made by the Guarantor under the Guarantee. 8. 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 or decree of any governmental authority, agency or court of the Republic of the Philippines and further none of the terms of the Guarantee or of any procedures contemplated in the Guarantee is in contravention of or is alleged (to the best of my knowledge) by any applicable authority or body to be void, violable, prohibited or unenforceable under the laws of the Republic of the Philippines. 9. The Guarantor is not in breach of any agreement relating of External Indebtedness or other debt obligations in excess of the equivalent of $10 million (at current rate of exchange) to which it is a party or by which it may be bound and no litigation, arbitration, or administrative proceedings are presently current or pending or, to the best of my knowledge, threatened, which breach, litigation, arbitration or administrative proceedings, as the case may be, would be material in the context of the Guarantee or might impair the Guarantor's ability to perform its obligation under the Guarantee. LexLib 10. 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 of the Philippines. The submission by the Guarantor to the non-exclusive jurisdiction of the High Court of Justice of England, 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 actions 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. 11. The execution and delivery of the Guarantee by the Guarantor constitutes the private and commercial act of the Guarantor. 12. 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 of the Philippines and Japanese law would accordingly be applied by the courts of the Republic of the Philippines if the Guarantee or any claim made under it comes under their jurisdiction. A Philippine court would, however, also refer to Philippine laws, decrees, and administrative regulations upon the capacity and the authority of the Guarantor to provide guarantees and the 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 rendered in an action brought in accordance with applicable law to enforces the obligations of the Guarantor under the Guarantee would be enforceable in the Republic of the Philippines against the Guarantor subject to defenses of luck of jurisdiction or notice to party, conclusion, found, elder mistake of law or fact. 13. The qualification by the Agent or the Banks for admission to do business under the laws of the Republic of the Philippines or any political sub-division thereof does not constitute a condition to, and the failure to so qualify does not affects, the exercise by the Agent or the Banks (solely by reason of the execution and delivery of this Guarantor). 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 rights, 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 of the Philippines or any political sub-division 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 of the Philippines or any political sub-division or taxing Philippines or any political sub-division or taxing authority thereof. LexLib 14. The Guarantor is a member in good standing of the International Monetary Fund ("IMF") and is fully eligible to utilize its Special Drawing Right. and the General Resources Account of the IMF in accordance with the Articles of Agreement of the IMF. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice