DOJ Opinion No. 270, s. 1982

DOJ OPINION NO. 270 , s. 1982 December 3, 1982 From : The Minister of Justice of the Republic of the Philippines To : Each of the financial institutions named as lenders in the loan agreement referred to below Gentlemen : As the Minister of Justice of the Republic of the Philippines (the "Republic"), I have been requested to give an opinion to you in connection with the guarantee ("the Guarantee") issued by the Republic of the Philippines (in this capacity "the Guarantor") to European Asian Bank as agent for yourselves in connection with the loan agreement dated September 1, 1982 and made between the National Power Corporation as borrower, European Asian Bank as manager, yourselves as lenders ("the Lender") and European Asian Bank as agent. In this regard, I have examined a signed copy of the Guarantee and all such other documents as I have considered it necessary or desirable to examine in order that I may give this opinion. LexLib Based upon the foregoing and in the light of the law of the Republic as it exists at the date hereof, I am of the opinion that: 1. under the Republic Act No. 6395, as amended, (the "Republic Act as amended"), the President of the Republic has full power and authority on behalf of the Guarantor to enter into and perform the Guarantee in accordance with its terms; 2. under the Republic Act as amended, the President of the Republic has full power and authority to authorize the person who signed the Guarantee on behalf of the Guarantor to sign on his behalf the Guarantee and any document to be given, made or delivered by or on behalf of the Guarantor for the purpose of the Guarantee; 3. under the Republic Act as amended and otherwise, all acts, consents, conditions and things required by the laws of the Republic to be done, obtained, fulfilled and performed before the execution of the Guarantee in order to constitute the obligations assumed by the Guarantor under the Guarantee the legal, valid and binding obligations of the Guarantor, enforceable in the Republic and to make the Guarantee admissible in evidence in the Republic have been done, obtained, fulfilled and performed in due and strict compliance with the laws of the Republic and due authority has been given by the President of the Republic to the person who signed the guarantee on behalf of the Guarantor for the purpose of the Republic Act as amended; 4. the obligations of the Guarantor under the Guarantee are direct, unconditional and enforceable and general obligations of the Guarantor for which the full faith and credit of the Guarantor is pledge ranking at least pari pussu with all other existing external indebtedness (as defined in the Guarantee) of the Guarantor save for obligations secured by any lien created on property at the time of purchase thereof solely as security for payment of the purchase price of such property or any lien arising in the ordinary course of banking transactions and securing a debt maturing not more than one year after the date of its creation, and at the date hereof no external indebtedness of the Guarantor is secured by any mortgage, charge, pledge, lien or other encumbrance over any present or future revenue or assets of the Guarantor save for any such lien as is described above; 5. the Guarantor is not in breach of nor in default in respect of any of its external indebtedness and the execution and performance of the Guarantee will not be or result in a breach of or default under any provision of the laws of the Republic or of any mortgage, deed, contract or agreement relating to external indebtedness to which the Guarantor is a party or by which the Guarantor may be bound; 6. there is no litigation or administrative proceeding of or before any court or governmental authority or agency pending (or to my knowledge threatened) to question or annual the execution or performance of the Guarantee or in any manner to question the laws and proceeding of the Republic under which the Guarantee was executed, performed or enforced and none of the said laws and proceedings have been repealed, revoked or rescinded in whole or in part; LexLib 7. the obligations assumed by the Guarantor in the Guarantee constitute the legal and valid and enforceable obligations of the Guarantor binding upon the Guarantor in accordance with the terms of the Guarantee; 8. the Guarantor is a member in good standing of the International Monetary Fund (the IMF") and is fully eligible to use its special drawing rights with, and the general resources account of, the IMF in accordance with the Article of Agreement of the IMF; 9. it is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of the Guarantee that it be filed, recorded or enrolled with any governmental authority or agency of or in the Republic or that it be stamped with any stamp, registration or similar transaction tax in the Republic, except that in case of suit by the Lenders to enforce their rights under the Guarantee in the Republic certain court fees and other charges would be payable; 10. on account of section 8(b) of the Republic Act No. 6395 as amended, there is no tax, fee, impost or other charge or restriction imposed by the Republic on the Guarantee or on any payments to be made by the Guarantor under the Guarantee or on any proceeds to be received from the Guarantor under the Guarantee and the Guarantor is not required or permitted by any present law or regulation of the Republic to deduct or withhold any sum from any payments (whether of principal, interest or otherwise) due or to become due from it under the Guarantee; 11. the choice of English Law as the governing law of the Guarantee is valid under the laws of the Republic and English law may accordingly be applied by the courts of the Republic if the Guarantee or any claim under it comes under their jurisdiction. A judgment of the courts of England or New York rendered in an action brought in any such court to enforce the obligations of the Guarantor under the Guarantee or to claim from he Guarantor any sum due as a result of default thereunder or for any other reason shall be enforceable in the Republic against the Guarantor upon the prior approval of any court or legal authority which may be required in accordance with the laws of the Republic. LexLib Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice