DOJ Opinion No. 126, s. 1982

DOJ OPINION NO. 126 , s. 1982 July 9, 1982 To : The Purchase Listed in Annex 4 to the Note Purchase Agreement dated July 5, 1982, between the Development Bank of the Philippines, the Republic of the Philippines and each of such Purchasers DEVELOPMENT BANK OF THE PHILIPPINES JAPANESE YEN NOTES SERIES B (1982) GUARANTEED BY THE REPUBLIC OF THE PHILIPPINES Gentlemen : In connection with the Development Bank of the Philippines Japanese Yen Notes Series (1982) Guaranteed by the Republic of the Philippines (hereinafter referred to as the "Notes") in the aggregate principal amount of 5,000,000,000 to be issued by the Development Bank of the Philippines (hereinafter referred to as "DBP") pursuant to the Note Purchase Agreements (hereinafter referred to as the "Purchase Agreements") dated July 5, 1982 between DBP, the Republic of the Philippines and the Purchasers, the undersigned Minister of Justice of the Republic of the Philippines, has examined such documents and questions of law as I have deemed necessary or appropriate for the propose of rendering the opinion hereinafter set forth. On the basis of such examination, I am of the opinion that : (a) On the date of this opinion letter the Notes are duly and validly authorized and issued by DBP and constitute, and all the covenants therein contained constitute, valid, legally binding, direct, unconditional, irrevocable and general obligations of DBP in accordance with their terms and the holders of the Notes are entitled to the benefits of the Recording and Paying Agency Agreement (hereinafter referred to as the "Recording and Paying Agency Agreement") dated July 5, 1982 between DBP, the Republic of the Philippines and Nippon Credit Bank Ltd. relating to the Notes; (b) The Execution and delivery of the Purchase Agreements and of the Recording and Paying Agency Agreement by DBP and the Republic of the (hereinafter referred to as the "Philippines") and issuance and sale of the Notes pursuant to the Purchase Agreements by DBP and the Philippines of their respective obligations thereunder, have been duly authorized in accordance with the laws of the Philippines and the Charter and By-Laws of DBP and the Purchase Agreements and the Recording and Paying Agency Agreement constitute valid and legally binding agreements constitute valid and of DBP and the Philippines in accordance with their respective terms; prcd (c) Neither the execution and delivery of the Purchase Agreements, the Recording and Paying Agency Agreement or the Notes by DBP and their respective obligations thereunder, nor the compliance by them with the terms and conditions thereof, violate, conflict with, or result in a breach of any terms, conditions or provisions of, or constitute a default under, the Charter or By-Laws of DBP, or the Constitution, any statutes or other laws of the Philippines, or any international treaty or convention to which the Philippines is a party or by which DBP or the Philippines or any of their properties is bound, or to the best of my knowledge any administrative regulation or order or any court decree, or any agreement or instrument relating to any External Obligation (as defined in Condition 20 of the Conditions of Notes) to which DBP or the Philippines is a party or by which DBP or the Philippines or any of their properties is bound, or result in the creation or imposition of any lien, mortgage, pledge or other security of any nature whatsoever on any of their properties or assets; (d) The due and punctual payment of principal of and interest on all the Notes and any other amounts payable in accordance with the Conditions of Notes is unconditionally and irrevocably, and jointly and severally with DBP, guaranteed by the Philippines in accordance with the conditions of Guarantees. Such guarantee on a Note and such guarantees on the Notes are hereinafter referred to as the "Guarantee" and the "Guarantees" respectively. The execution and delivery of the Guarantees and the performance by the Philippines of its obligations under the Guarantees have been duly and validly authorized in accordance with the laws of the Philippines. Each Guarantee and all the covenants therein contained will, upon issuance and delivery of the Note (whether in the form of a Note certificate or a recorded Note) to each Purchaser against payment therefor in accordance with the provisions of the Purchase Agreements, constitute valid, legally binding, direct, unconditional, irrevocable and general obligations of the Philippines enforceable in accordance with its terms; the obligations of the Philippines under the Guarantees rank at least pari passu without any preference one over the other by reason of priority of date of issue, currency of payment, form of settlement of obligations, form of documents evidencing obligations or otherwise, equally with all other unsecured External Obligations of the Philippines; and the holders of the recorded Notes shall enjoy the same benefit from the Guarantees as the holders of the Note certificates enjoy; (e) The Purchase Agreements and the Recording and Paying Agency Agreement have been duly executed and delivered by the Philippines; the choice of law provisions therein are valid and enforceable under the laws of the Philippines; (f) The choice of law provisions in the Guarantees are valid and enforceable under the laws of the Philippines; (g) Any action against the Philippines relating to the Purchase Agreements, the Recording and Paying Agency Agreement or the Guarantees may be instituted (whether or not together with DBP) in the Tokyo District Court and any Japanese court competent under Japanese Law to hear appeals from such court or any court in the Philippines competent under the laws of the Philippines to such action or any competent court in any country where any property or asset of the Philippines is situated; and the waiver by the Philippines in each of the Purchase Agreement, the Recording and Paying Agency Agreement and the Guarantees of Immunity from legal process against it is valid and legally binding under the laws of the Philippines; (h) Philippines has duly and validly appointed the Consul General of the Philippines at the Embassy of the Philippines in Tokyo, Japan as its agent upon whom all process may be served in, or in connection with, any action relating to the Purchase Agreements, the Recording and Paying Agency Agreement or the Guarantees that may be instituted in Japan and has duly and validly designated the address from time to time of the Embassy of the Philippines in Tokyo, Japan as the address to receive such process; (i) Under the laws of the Philippines, a final judgment obtained against the Philippines from any competent Japanese court by a holder of Notes in an action relating to any of the Purchase Agreements, the Recording and Paying Agency Agreement and the Guarantees shall be enforceable against the Philippines in the Philippines upon the prior approval of a court in the Philippines and such approval will be given, provided that (i) such judgment was not obtained by collusion or fraud, (ii) the relevant court had jurisdiction over the cases and (iii) such judgment was not tainted by want of notice to the party of the foreign proceeding or a clear mistake of law or fact; (j) All statements with respect to or involving the laws of the Philippines set forth in the Placing Memorandum in the English language dated June 1982 (the "Memorandum") are correctly set forth therein and the undersigned has no reason to believe that the Memorandum contains any untrue statement of a material fact or omits to state a material fact the omission of which would make the statements therein misleading; and (k) No provision of law, decree or administrative regulation prohibits (i) the payment by the Philippines of all taxes, assessments or other charges imposed or that may be imposed by the Philippines or any taxing authority thereof or therein, on the Noteholders in respect of any payment of principal (including premium, if any) of and interest on the Notes by the Philippines under the Guarantees and (ii) the remittance in full of all payments required from the Philippines under the Guarantees, subject to the provisions of Section 74 of the Central Bank Act of the Philippines (Republic Act No. 265, as amended). LexLib The opinions expressed herein as to the enforceability of agreements and obligations or the giving effect to judgment are subject to all applicable laws affecting the enforcement of creditors' rights generally. cdrep Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice