DOJ Opinion No. 137, s. 1980

DOJ OPINION NO. 137 , s. 1980 September 29, 1980 Yamaichi Securities Company, Limited The Nomura Securities Co., Ltd. Daiwa Securities Co., Ltd. The Nikko Securities Co., Ltd. As Managers acting for themselves and on behalf of the other Underwriters c/o Yamaichi Securities Company, Limited 4-1, Yacsu 2-chome, Chuo-ku, Tokyo Republic of the Philippines Japanese Yen Bonds of 1980 Series No . 3 Gentlemen : In my official capacity as the Minister of Justice of the Republic of the Philippines (the "Philippines"), I am rendering this opinion pursuant to Article 10, paragraph (d), subparagraph (A) of the Underwriting Agreement (the "Underwriting Agreement") dated September 17, 1980 between the Philippines and the Central Bank of the Philippines (the "Central Bank"), as statutory fiscal agent of the Philippines, on the one part, and Yamaichi Securities Company, Limited (the "Representative Underwriter"), The Nomura Securities Co., Ltd., Daiwa Securities Co., Ltd. and the Nikko Securities Co., Ltd., acting on their behalf and on behalf of the other Underwriters named in Article 1, paragraph (1) of the Underwriting Agreement, on the other, relating to the issuance by the Philippines of its Japanese Yen Bonds of 1980 Series No. 3 (the "Bonds") in the aggregate principal amount of fifteen Billion Japanese Yen (Y15,000,000,000). For the purpose of giving this opinion, I have examined the following documents, instruments and agreements: (1) The certified English translation of Securities Registration Statement including amendatory statements thereto (hereinafter collectively referred to as the "Securities Registration Statement"), filed with the Minister of Finance of Japan in connection with the public offering of the Bonds; LexLib (2) The certified English translation of the preliminary prospectus and final prospectus, prepared for use in connection with the public offering of the Bonds and the English versions thereof (hereinafter collectively referred to as the "Prospectus"): (3) The English versions of the following agreements attached to the Securities Registration Statement: (a) The Underwriting Agreement with certified English translation of the form of the Bond Certificates (including the Conditions of Bonds to be endorsed thereon and the interest coupons); (b) The Agreement with Commissioned Companies (the "Agreement with Commissioned Companies") dated September 17, 1980 between the Philippines and the Central Bank as statutory fiscal agents of the Philippines on the one part, and The Bank of Tokyo, Ltd., The Industrial Bank of Japan, Limited, The Mitsubishi Bank, Limited, The Mitsui Bank, Limited, The Long-Term Credit Bank of Japan, Limited and the Sanwa Bank, Limited, as Commissioned Companies, on the other; (c) The Paying Agents Agreement (the "Paying Agents Agreement") dated September 17, 1980 between the Central Bank, as statutory fiscal agent of the Philippines, and the Bank of Tokyo, Ltd., as the representative of the Paying Agents; and (d) The Recording Agency Agreement (the "Recording Agency Agreement") dated September 17, 1980 between the Central Bank, as statutory fiscal agent of the Philippines, and the Bank of Tokyo, Ltd., as the Recording Agent. In this opinion, the agreements referred to in this subparagraph (3) are sometimes collectively referred to as the "Agreements." I have further examined, among others, the following laws, relevant to the authorization of the offering and sale of the Bonds, to the Agreements, and to the statements of Philippine law in the Securities Registration Statement: (1) Republic Act No. 245, as amended by Presidential Decree No. 142 dated March 2, 1973; (2) Presidential Decree No. 1397 dated June 2, 1973, providing for the conversion of departments into ministries; (3) Republic Act No. 265, as amended, establishing the Central Bank (the "Charter of the Central Bank"); and (4) The provisions of the laws of the Philippines applicable to the enforcement of a foreign judgment relating to the Bonds. Copies of relevant excerpts from the foregoing and other applicable laws are attached hereto as Annexes "A" through "F". LexLib I have also examined the authorization, approvals, consents and permissions required to be given or issued by the appropriate governmental offices and agencies of the Philippines in connection with the execution and delivery of the Agreements and the issuance and sale of the Bonds and such other documents as I have considered necessary or appropriate for the purpose of this opinion, namely: (1) The approval by the President of the Philippines, dated August, 1980, of the form, terms and provisions of the proposed issue, public offering and sale of the Bonds and those of the Bonds, as set forth in the Agreement and the form of the Bonds, respectively; (2) Monetary Board Resolution No. 1616, dated September 5, 1980, approving the forms, terms and provisions of the agreements and the Bonds; (3) A certificate of the Treasurer of the Philippines dated September 1, 1980 with respect to accrued obligations of the Philippines for money borrowed; and (4) A letter of the Minister of Finance of the Philippines dated September 17, 1980 and a telex of the Consul General of the Philippines in Tokyo, Japan relating to designation of the address for service of process and appointment of the service agent. Copies of the foregoing approval and resolution are attached hereto as Annexes "G" through "J-1" and "J-2." Having examined the above-enumerated documents and having regard to the relevant laws of the Philippines, I am of the opinion that: 1. The Philippines is duly authorized under the laws of the Philippines to enter into the Underwriting Agreement; the Underwriting Agreement has been entered into by a lawful and duly authorized representative of the Philippines and constitutes a legally valid and binding agreement of the Philippines in accordance with its terms; 2. The issuance of the Bonds has been duly authorized in accordance with the laws of the Philippines and the amount of the issue is within the amount so authorized; when the entire amount of the Issue Price (as defined in the Underwriting Agreement) of the Bonds has been paid in full accordance with the provisions of the Underwriting Agreement, the Bonds will be validly created and constitute legally valid and binding, direct, unconditional, unsecured and general obligations of the Philippines in accordance with their terms; when the entire amount of the Issue Price of the Bonds has been paid i full in accordance with the provisions of the Underwriting Agreement and when the Bond certificates have been signed by the facsimile signature of the Minister of Finance of the Philippines and the facsimile signature of the Governor of the Central Bank and affixed with the facsimile signature and seal of a Representative Director of each of the Commissioned Companies in accordance with the Conditions of Bonds, and delivered, together with the interest coupons attached thereto signed by the facsimile signature of the Minister of Finance of the Philippines and the facsimile signature of the Governor of the Central Bank, to the Representative Underwriter acting for itself and on behalf of the other Underwriters, the Bond certificates (including interest coupons) will have been validly issued; and under the laws of the Philippines the obligations of the Philippines under the Bonds shall rank pari passu with all of its other unsecured indebtedness for money borrowed irrespective of the date of creation of the obligations, the currency of payment or otherwise and the Philippines has no secured external indebtedness as defined in Condition 24 of the Bonds except for those secured by (1) any mortgage, pledge. lien or other security created on property, at the time of purchase thereof, solely as security for the payment of the purchase price of such property, or (2) any mortgage, pledge, lien or other security arising in the ordinary course of banking transactions and securing a debt maturing not more than one year after the date of its creation; 3. The Agreement with Commissioned Companies has been entered into by a lawful and duly authorized representative of the Philippines and constitutes a legally valid and binding agreement of the Philippines in accordance with its terms; 4. The execution, delivery and performance of the Underwriting Agreement and the Agreement with Commissioned Companies by the Philippines and of each of the Agreements by the Central Bank, as statutory fiscal agent of the Philippines, the issue of the Bonds and performance of the obligations thereunder by the Philippines and the execution of the Bond certificates (including interest coupons) in accordance with the Underwriting Agreement, are in accordance with the laws of the Philippines; and neither the authorization for the issuance of the Bonds, nor issuance of the Bonds, nor issuance of the Bonds certificates, (including interest coupons), nor the performance of the obligations of the Philippines in accordance with the provisions of the Conditions of Bonds and the Bond certificates (including interest coupons), nor the execution or performance by the Philippines of the Underwriting Agreement or the Agreement with Commissioned Companies, nor the execution or performance by the Central Bank, as statutory fiscal agent of the Philippines, of any of the Agreements, nor the compliance by the Philippines and the Central Bank with the terms and conditions thereof, is inconsistent with any provision of the Constitution or any statute or other laws of the Philippines, the Charter of the Central bank, or any international treaty or convention or any agreement to which the Philippines is a party or by which the Philippines or any of its property is bound, or conflicts or will conflict with the duties or liabilities of the Philippines arising under any of the foregoing; 5. Any and all approvals, validations and/or consents required under the laws of the Philippines for the Philippines to issue the Bonds and to perform its obligations thereunder, to enter into the Underwriting Agreement and the Agreement with Commissioned Companies and to perform its obligations provided in these agreements have been obtained by the Philippines and remain in full force and effect as of the date hereof; 6. The governing law provisions in the Bonds, the Underwriting Agreement and the Agreement with Commissioned Companies are valid and binding under the laws of the Philippines; any action relating to any of such agreements or any of the Bonds may be instituted against the Philippines in the Japanese courts as provided therein or any court in the Philippines of competent jurisdiction, by virtue of the waiver by the Philippines in such agreements and the Bonds of sovereign immunity to which it might otherwise be entitled in any such action, which waiver is valid and binding under the laws of the Philippines; under the laws of the Philippines, in an action brought in the Philippines to enforce monetary claims arising under the Bonds or any of the Agreements a Philippine court of competent jurisdiction may render a judgment expressed in Japanese yen. LexLib 7. The Philippines has duly and validly designated its Consulate General in Tokyo, Japan, as the address for the purpose of accepting service of process in Japan in connection with any action instituted in Japan relating to the Bonds or the Underwriting Agreement and has duly and validly appointed its Consul General in Tokyo, Japan as the authorized agent to accept such service of process; and 8. All statements concerning the laws of the Philippines in the Securities Registration Statement and the Prospectus are true and correct. In giving the opinion stated in 1, 2, 3 and 6 above, I have assumed that the Bonds, the Bond certificates, the interest coupons relating thereto and the Agreements are legally valid and binding under Japanese law. Very truly yours, (SGD.) RICARDO C. PUNO Minister of Justice