Exhibit K
REPUBLIC OF THE PHILIPPINES
U.S. DOLLAR-DENOMINATED GLOBAL BONDS DUE 2011
DEALER MANAGERS AGREEMENT
February 10, 2004
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Invitation and Cash Offering. The Republic of the Philippines (the
"Republic") plans to make an invitation (the "Invitation") to holders of its
outstanding 8 7/8% Bonds Due 2008, 8 3/8% Bonds Due 2009, 9 1/2% Bonds Due 2024
and Puttable in 2006, Front-Loaded Interest Reduction Bonds Due 2007,
Front-Loaded Interest Reduction Bonds Due 2008, Bonds Due 2010, Bonds Due 2009,
Fixed Rate Bonds Due 2018 and Fixed Rate Bonds Due 2017 (collectively, the "Old
Bonds") to submit one or more offers to exchange (each, an "Exchange Offer") Old
Bonds for U.S. Dollar-Denominated Global Bonds due 2011 of the Republic (the
"New Global Bonds"), on the terms and subject to the conditions set forth in the
Prospectus Supplement (as defined in Section 9(a) hereof), the Base Prospectus
(as defined in Section 9(a) hereof) and the related letters of transmittal
(each, a "Letter of Transmittal").
In addition, the Republic may sell New Global Bonds for cash to you (the
"Cash Offering" and, together with the Invitation, the "Global Bond Offering")
pursuant to a separate underwriting agreement to be entered into among the
Republic, you and any additional underwriters named therein. The New Global
Bonds shall be issued pursuant to the terms of a Fiscal Agency Agreement dated
as of October 4, 1999, as supplement by Supplement No. 1 to Fiscal Agency
Agreement to be dated February 26, 2004, between JPMorgan Chase Bank, as fiscal
agent, and the Republic (the "Supplement"). Capitalized terms used but not
otherwise defined in this Agreement shall have the meanings ascribed to them in
the Prospectus Supplement, whether or not capitalized therein.
2. Appointment as Dealer Managers. The Republic hereby appoints X.X. Xxxxxx
Securities Inc. as the global coordinator and joint lead manager (the "Global
Coordinator") and
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Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. as the joint
lead managers (together with the Global Coordinator, the "Dealer Managers") in
connection with this Dealer Managers Agreement (this "Agreement") and the
transactions contemplated herein. The Republic hereby authorizes you to act as
such on its behalf, in accordance with this Agreement and the Invitation,
including pursuant to your obligations as Dealer Managers set forth in this
Section 2 and Section 5 hereof. Each Dealer Manager represents, warrants and
agrees that it will perform those services in connection with the Exchange
Offers that are customarily performed by investment banks acting in such roles
in connection with similar transactions, including, but not limited to,
soliciting Exchange Offers pursuant to the Invitation and communicating
generally regarding the Invitation with brokers, dealers, commercial banks,
trust companies and other persons, including the holders of the Old Bonds, and
assisting in the distribution of the Offering Materials (as defined below).
3. No Liability for Acts of Dealers, Commercial Banks and Trust Companies.
You shall have no liability (in tort, contract or otherwise) to the Republic, or
any other person asserting claims on behalf of or in right of the Republic, for
any act or omission on the part of any broker or dealer in securities (each, a
"Dealer") (other than yourselves) or any commercial bank or trust company that
solicits Exchange Offers, and you shall have no liability (in tort, contract or
otherwise) to the Republic, or any other person asserting claims on behalf of or
in right of the Republic, for any losses, claims, damages or liabilities arising
in connection with the Invitation, except for any such losses, claims, damages
or liabilities incurred by the Republic, or any other person asserting claims on
behalf of or in right of the Republic, that result from your own bad faith,
gross negligence or willful misconduct in performing the services that are the
subject of this Agreement. In soliciting or obtaining Exchange Offers, you, as
Dealer Managers, shall act as independent contractors, and no Dealer, commercial
bank, trust company or any other person is to be deemed to be acting as your
agent or the agent of the Republic, and you, as Dealer Managers, are not to be
deemed the agents of each other, the Republic, any Dealer, commercial bank or
trust company or any other person.
4. The Offering Materials. (a) In connection with the Global Bond Offering
and subject to applicable laws, the Republic authorizes each of you to print and
distribute as necessary the Prospectus Supplement, the Base Prospectus, the
Letter of Transmittal and any press release and newspaper advertisements and
news wires relating to the Global Bond Offering (collectively, and including any
amendments or supplements thereto provided by or on behalf of the Republic in
accordance with this Agreement, the "Offering Materials"). The Republic and you
expressly agree that all duly completed Letters of Transmittal shall be
transmitted by facsimile, courier or hand delivery pursuant to the procedures
described in the Prospectus Supplement. The Republic further agrees to furnish
to each of you (in The City of New York) as many copies as you may reasonably
request of the Prospectus Supplement, the Base Prospectus and the Letter of
Transmittal and shall cause to be mailed to each registered holder of any Old
Bond upon its request therefor a reasonable number of copies of the Prospectus
Supplement, the Base Prospectus and the Letter of Transmittal. Thereafter, to
the extent practicable until the Expiration Date, the Republic shall use its
best efforts to cause copies of the Offering Materials to be mailed to each
person who becomes a holder of record of any Old Bond upon its request therefor.
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(b) The Republic shall not amend or supplement the Offering Materials, or
prepare or approve any other offering materials for use in connection with the
Global Bond Offering, without your consent, which consent shall not be
unreasonably withheld. You shall not prepare or approve any other external
offering materials for use in connection with the Global Bond Offering without
the Republic's consent, which consent shall not be unreasonably withheld. The
Republic agrees that at a reasonable time prior to using any Offering Materials
(whether preliminary or otherwise) or filing the same with the U.S. Securities
and Exchange Commission (the "Commission") or with any other Federal or other
governmental agency, authority or instrumentality, domestic or foreign, the
Republic will submit copies of such materials to you for your review and
approval, which approval shall not be unreasonably withheld.
(c) The Republic shall advise you promptly of (i) the occurrence of any
event which could cause the Republic to withdraw or terminate the Global Bond
Offering or would cause the Republic to exercise any right not to exchange the
Old Bonds tendered pursuant to the Invitation or not to issue any New Global
Bonds, (ii) the occurrence of any event, or the discovery of any fact, which it
believes would require amending or supplementing any Offering Materials then
being used, (iii) the issuance to and receipt by the Republic of any
communication, comment or order by the Commission or by the securities exchange
commission or a regulatory authority of any jurisdiction in connection with the
Global Bond Offering (and, if in writing, shall furnish you with a copy
thereof), (iv) any litigation or administrative action about which it has notice
and to which it is a party with respect to the Global Bond Offering and (v) any
other information relating to the Global Bond Offering which you may from time
to time reasonably request in the performance of your duties hereunder. You will
promptly inform the Republic of any litigation or administrative or governmental
action with respect to the Global Bond Offering of which you become aware.
(d) The Republic shall prepare one or more prospectus supplements in a form
approved by you and file any such prospectus supplements pursuant to Rule 424(b)
under the U.S. Securities Act of 1933, as amended (the "Securities Act"), not
later than the Commission's close of business on the second business day
following the Announcement Date or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Securities Act. The Republic shall advise
you, promptly after it receives notice thereof, of (i) when the Base Prospectus,
the Prospectus Supplement or any amendment or supplement to the Base Prospectus
or the Prospectus Supplement shall have been filed with the Commission, (ii)
when any amendment to the Registration Statement (as defined in Section 9(a)
hereof) shall have become effective, (iii) any request (and, if in writing, will
furnish you with a copy thereof) by the Commission for the amending or
supplementing of the Registration Statement, the Base Prospectus or the
Prospectus Supplement or any amendment or supplement to the Base Prospectus or
the Prospectus Supplement, or for additional information, (iv) the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of the Base Prospectus, the Prospectus Supplement or any amendment or
supplement to the Base Prospectus or the Prospectus Supplement, or the
initiation or threatening of any proceeding for such purpose, and (v) of the
receipt by the Republic of any notification with respect to the suspension of
the qualification of the New Global Bonds for offering or sale in any
jurisdiction in the United States or any jurisdiction identified in Schedule I
to this Agreement, or the initiation or threatening of any
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proceeding for any such purpose. In the event of the issuance of any stop order
or of any order preventing or suspending the use of the Base Prospectus, the
Prospectus Supplement or any amendment or supplement to the Base Prospectus or
the Prospectus Supplement or suspending any such qualification, the Republic
shall promptly use its best efforts to obtain the withdrawal of such order, and
shall promptly from time to time prior to and following the Expiration Date take
such action as you may reasonably request to qualify the Exchange Offers and the
New Global Bonds for offering and sale under the securities laws of such
jurisdictions as you may reasonably request, and to comply with such laws so as
to permit the continuation of the Invitation and sales and dealings in the New
Global Bonds in such jurisdictions for as long as may be necessary to complete
the Invitation and the distribution of the New Global Bonds; provided that in
connection therewith the Republic shall not be required to file a general
consent to service of process in any jurisdiction.
(e) The offers and solicitations of the Republic and your solicitations
shall be made only in the United States and the jurisdictions identified in
Schedule I to this Agreement, and shall be conducted (including, without
limitation, with respect to the use and distribution of the Offering Materials)
in compliance with the limitations and qualifications set forth in the document
dated the date hereof captioned "Foreign Jurisdiction Investment
Considerations." No offers, distribution of the Offering Materials or
solicitations shall be made in any other jurisdiction without your and the
Republic's prior written consent.
(f) The Republic agrees, if the delivery of a prospectus is required under
the Securities Act or the laws of any jurisdiction identified in Schedule I to
this Agreement at any time prior to the expiration of nine months after the time
of issue of the Prospectus (as defined in Section 9(a) hereof) in connection
with the offering, sale or exchange of the New Global Bonds, the Republic shall
comply with the requirements of such laws so far as necessary to permit the
continuance of sales or dealings in the New Global Bonds as contemplated herein
and in the Prospectus. If at such time any event or condition shall have
occurred or existed as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus (which amendment
or supplement shall have not been disapproved by you) in order to comply with
the Securities Act or the laws of any jurisdiction identified in Schedule I to
this Agreement, the Republic shall notify you and upon your request prepare,
file with the Commission and furnish, at its own expense, to each of you and to
any dealer in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case you
are required under the Securities Act or the laws of any jurisdiction identified
in Schedule I to this Agreement to deliver a prospectus in connection with sales
of any of the New Global Bonds at any time nine months or more after the time of
issue of the Prospectus, upon your request but at your expense, the Republic
shall prepare and deliver to you as many copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Securities
Act.
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5. Participation by Dealer Managers. You and the Republic agree to the
matters described in the Prospectus Supplement under the captions "Terms of the
Global Bond Offering--Invitation Procedures--Participation by the Dealer
Managers."
6. Compensation. The Republic agrees to pay you as compensation for your
services as Dealer Managers an amount equal to 0.19% of the aggregate principal
amount of New Global Bonds issued pursuant to the Invitation. Such fees shall be
payable in U.S. dollars, in immediately available funds, on the Settlement Date,
to an account or accounts in New York City designated by the Global Coordinator.
7. Expenses. The Republic covenants and agrees with you that the Republic
shall pay or cause to be paid such fees and expenses as provided in a separate
fee letter between the Republic and the Dealer Managers dated the date hereof.
8. Settlement Agent and Luxembourg Exchange Agent; Securityholder Lists.
(a) The Republic will appoint Citibank, N.A., to serve as settlement agent (the
"Settlement Agent"), pursuant to a settlement agent agreement (the "Settlement
Agent Agreement"), in connection with the Invitation and X.X. Xxxxxx Bank
Luxembourg S.A. to serve as Luxembourg Exchange Agent (the "Luxembourg Exchange
Agent"), pursuant to an exchange agent agreement (the "Luxembourg Exchange Agent
Agreement") in connection with the Invitation. You are authorized to communicate
directly with the Settlement Agent and the Luxembourg Exchange Agent with
respect to matters relating to the Invitation.
(b) The Republic shall furnish to you, to the extent available to the
Republic, cards or lists or copies thereof showing the names and addresses of,
and principal amount of each type of the Old Bonds held by, the registered
holders of such Old Bonds as of the most practicable recent date, and shall
include a provision in the Settlement Agent Agreement to inform you in writing
or other acceptable form of delivery of information related to Letters of
Transmittal received pursuant to the Invitation and such other information as
you may require in connection with your services hereunder. You agree to use
such information only in connection with the Invitation and not to furnish such
information to any other person except in connection with the Invitation.
9. Representations, Warranties and Covenants of the Republic. The Republic
represents, warrants and covenants to you that:
(a) The Republic meets the requirements for use of Schedule B under
the Securities Act and is a "seasoned" foreign government issuer within the
meaning of Commission Release No. 33-6424 (the "Release"). The Republic has
filed with the Commission a registration statement on Schedule B (File No.
333-108310), as amended by Amendment No. 1 filed with the Commission on February
5, 2004, covering the registration of debt securities and warrants, including
the New Global Bonds (together, the "Debt Securities"), under the Securities
Act; such registration statement and any post-effective amendments thereto have
been declared effective by the Commission; no other document (other than any
documents incorporated by reference therein) with respect to such registration
statement has heretofore been filed with the Commission; and no stop order
preventing or suspending the effectiveness of any such
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registration statement has been issued and no proceeding for this purpose has
been initiated or threatened by the Commission. Such registration statement, as
amended to the date hereof (including the prospectus constituting a part
thereof, any prospectus supplement relating to the Debt Securities and all
documents incorporated by reference thereto, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities and Exchange
Act of 1934, as amended (the "Exchange Act")), meets the requirements set forth
in the Release and Schedule B under the Securities Act. The various parts of
such registration statement, including all exhibits thereto and any documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became effective
and any registration statement, if any, increasing the size of the offering
filed pursuant to Rule 462(b) under the Securities Act, each as amended at the
time such part of the registration statement became effective, are hereinafter
collectively called the "Registration Statement"; the base prospectus relating
to the Debt Securities contained in the Registration Statement is, in the form
in which it has most recently been filed with the Commission on or prior to the
date hereof, is hereinafter called the "Base Prospectus"; the prospectus
supplement dated February 10, 2004 relating to the Invitation filed with the
Commission pursuant to Rule 424(b) under the Securities Act is hereinafter
called the "Prospectus Supplement"; and the Base Prospectus, as supplemented by
the Prospectus Supplement, is hereinafter called the "Prospectus". Any reference
to either the Prospectus Supplement or the Base Prospectus as amended or
supplemented shall be deemed to refer, as appropriate, to either the Prospectus
Supplement or the Base Prospectus as amended or supplemented in relation to the
Invitation in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Securities Act; any reference herein to the Prospectus
Supplement or the Base Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein as of the respective dates of the
Prospectus Supplement and the Base Prospectus.
(b) No order preventing or suspending the use of the Base
Prospectus has been issued by the Commission, and the Base Prospectus, at the
time of filing thereof, conformed in all material respects to the requirements
of the Securities Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(c) The Registration Statement, the Base Prospectus and the
Prospectus Supplement, and any amendment or supplement to the Registration
Statement, the Base Prospectus or the Prospectus Supplement, comply or will
comply in all material respects with the provisions of the Securities Act and
the rules and regulations of the Commission thereunder. None of the Registration
Statement, as amended as of any such time, or the Base Prospectus and the
Prospectus Supplement, as amended or supplemented as of any such time, contains
or will contain any untrue statement of a material fact or omits or will omit to
state any material fact required to be stated therein or necessary to make the
statements therein (with respect to the Base Prospectus and the Prospectus
Supplement, in the light of the circumstances under which they were made) not
misleading, and the statements made in the Registration Statement, the
Prospectus and the Prospectus Supplement, and any amendments or supplements
thereto, within the coverage of Rule 175(b) under the Securities Act were made
by the Republic with a
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reasonable basis and in good faith; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Republic by
you expressly for use therein.
(d) The Offering Materials comply and will comply in all material
respects with all applicable requirements of the U.S. federal securities laws
and the laws of those jurisdictions set forth in Schedule I to this Agreement in
which you are authorized to make Exchange Offers pursuant to this Agreement, and
the Offering Materials do not contain nor will they contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Republic by you expressly for use in the Offering Materials.
(e) Since the respective dates as of which information is given in the
Registration Statement, the Prospectus and any other Offering Materials, there
has not occurred any material adverse change, or any event that would be
reasonably expected to result in a prospective material adverse change, in the
financial, economic or political condition of the Republic, or in the ability of
the Republic to perform its obligations under this Agreement, the Fiscal Agency
Agreement (as defined below), the Settlement Agent Agreement, the Luxembourg
Exchange Agent Agreement or the New Global Bonds, other than as set forth in or
contemplated in the Offering Materials.
(f) The Fiscal Agency Agreement dated as of October 4, 1999, between
the Republic and The Chase Manhattan Bank, as fiscal agent, payment agent,
registrar and transfer agent (the "Basic Fiscal Agency Agreement"), has been
duly authorized, executed and delivered by the Republic and is a valid and
binding agreement of the Republic, enforceable in accordance with its terms. The
Supplement has been duly authorized by the Republic and, when duly executed and
delivered by the Republic in accordance with its terms, will be a valid and
binding agreement of the Republic, enforceable in accordance with its terms. The
Basic Fiscal Agency Agreement, as supplemented by the Supplement and as it may
be further amended from time to time, is referred to herein as the "Fiscal
Agency Agreement".
(g) The execution and delivery of this Agreement, the Settlement Agent
Agreement, the Luxembourg Exchange Agent Agreement and all other documents to be
executed and delivered by the Republic hereunder or thereunder, the making of
the Invitation and the performance of the terms of the New Global Bonds have
been duly authorized by the Republic and have been or will be duly executed and
delivered by the Republic, and this Agreement, the Settlement Agent Agreement
and the Luxembourg Exchange Agent Agreement constitute or will constitute valid
and binding obligations of the Republic, enforceable against the Republic in
accordance with their respective terms.
(h) The New Global Bonds have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Fiscal Agency
Agreement and
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delivered by the Republic, will be entitled to the benefits of the Fiscal Agency
Agreement and will be valid and binding obligations of the Republic, enforceable
in accordance with their terms. The New Global Bonds will constitute direct,
unconditional, unsecured and general obligations of the Republic and the full
faith and credit of the Republic is pledged for the performance thereof. The New
Global Bonds will rank pari passu in priority of payment with all other
unsecured and unsubordinated External Indebtedness of the Republic.
"Indebtedness" means any indebtedness for money borrowed or any guarantee of
indebtedness for money borrowed. "External Indebtedness" means Indebtedness that
is denominated or payable by its terms in, or at the option of the holder
thereof payable in, a currency or currencies other than the lawful currency of
the Republic.
(i) The Fiscal Agency Agreement and the New Global Bonds conform or
will conform in all material respects to the descriptions thereof contained in
the Prospectus, and the statements made under the captions "Description of the
Securities--Description of the Debt Securities" in the Base Prospectus and
"Description of the New Global Bonds" in the Prospectus Supplement, insofar as
such statements purport to summarize the terms of the New Global Bonds,
constitute accurate and fair summaries in all material respects of such terms.
(j) Except as set forth in the Prospectus, the Republic is subject to
civil and commercial law, to suit, and to execution and attachment and process
in the nature thereof with respect to its obligations under this Agreement, the
Fiscal Agency Agreement, the Settlement Agent Agreement, the Luxembourg Exchange
Agent Agreement and the New Global Bonds. The waiver of immunity set forth in
this Agreement, the Fiscal Agency Agreement and the New Global Bonds and
described in the Prospectus is valid, binding and enforceable against the
Republic.
(k) The Republic is not, or with the giving of notice or lapse of time
or both would not be, in violation of or in default under any constitutional or
treaty provision, convention, statute, law, regulation, decree, court order or
similar authority binding upon the Republic, or under any fiscal agency
agreement, indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Republic is a party or by which it or any of its
properties is bound, except for violations and defaults which individually and
in the aggregate would not reasonably be expected to have a material adverse
effect on the financial, economic or political condition of the Republic or its
ability to perform its obligations under this Agreement, the Fiscal Agency
Agreement, the Settlement Agent Agreement, the Luxembourg Exchange Agent
Agreement and the New Global Bonds; the execution and delivery by the Republic
of this Agreement, the Fiscal Agency Agreement, the Settlement Agent Agreement,
the Luxembourg Exchange Agent Agreement and the making of the Invitation, the
issuance and delivery of the New Global Bonds as contemplated in this Agreement,
the performance or observance by the Republic of any of the terms of this
Agreement, the Fiscal Agency Agreement, the Settlement Agent Agreement, the
Luxembourg Exchange Agent Agreement and the New Global Bonds and the
consummation of the transactions herein or therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, (i) any constitutional or treaty provisions, (ii)
the Old Bonds or (iii) any convention, statute, law, regulation, decree, court
order or similar authority binding upon the
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Republic, or under any fiscal agency agreement, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Republic is
a party or by which the Republic is bound or to which any of the property or
assets of the Republic is subject, which in the case of (iii) would reasonably
be expected to have a material adverse effect on the financial, economic or
political condition of the Republic or its ability to perform its obligations in
connection with the Global Bond Offering.
(l) All necessary action by or on behalf of the Republic have been
taken to permit, and all necessary consents and approvals required under the
laws of the Republic, including the approval in principal of the Monetary Board,
have been duly obtained and are in full force and effect for, the due
authorization, execution, delivery and performance by the Republic of this
Agreement, the Fiscal Agency Agreement and the Settlement Agent Agreement, the
Luxembourg Exchange Agent Agreement, the making of the Invitation and the
issuance and sale of the New Global Bonds as contemplated in this Agreement and
the Fiscal Agency Agreement, except for the final approval of the Monetary
Board, which shall be obtained prior to the Settlement Date.
(m) There are no legal or governmental proceedings pending or, to the
knowledge of the Republic, threatened (i) to which the Republic is or may be a
party or to which any property of the Republic is or may be subject, which, if
determined adversely to the Republic, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the financial,
economic or political condition of the Republic or its ability to perform its
obligations under this Agreement, the Fiscal Agency Agreement, the Settlement
Agent Agreement, the Luxembourg Exchange Agent Agreement or the New Global Bonds
or (ii) against or affecting the Republic before any court or administrative
agency in the Republic which challenges the validity or enforceability of this
Agreement, the Fiscal Agency Agreement, the Settlement Agent Agreement, the
Luxembourg Exchange Agent Agreement, the making of the Invitation or the New
Global Bonds to be issued pursuant to the Invitation, or the transactions
contemplated hereby or thereby.
(n) The Republic is a member of and eligible to use the general
resources of the International Monetary Fund and the International Bank for
Reconstruction and Development. Such organizations have not limited, pursuant to
their Articles of Agreement or Rules and Regulations, the use by the Republic of
the general resources of such organizations.
(o) The Republic is not in material default under the provisions of
any agreement or of any instrument evidencing or relating to any outstanding
External Indebtedness and is not engaged in any discussions with any of its
creditors with a view to rescheduling or restructuring any such External
Indebtedness, other than in connection with the Invitation and discussions that
are held in the ordinary course of business. The Republic has not, in respect of
any of the Republic's External Indebtedness, prepared, executed or filed any
public instrument as provided in Article 2244(14) of the Civil Code of the
Republic, or consented to or assisted in the preparation of filing of any such
public instrument, that would therefore have priority over the New Global Bonds.
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(p) This Agreement, the Fiscal Agency Agreement, the Settlement Agent
Agreement and the Luxembourg Exchange Agent Agreement are, and the New Global
Bonds will be, as of the Settlement Date, in proper legal form under the laws of
the Republic for enforcement thereof against the Republic; and to ensure the
validity, enforceability or admissibility into evidence of this Agreement, the
Settlement Agent Agreement, the Luxembourg Exchange Agent Agreement, the Fiscal
Agency Agreement and the New Global Bonds, it is not necessary that this
Agreement, the Settlement Agent Agreement, the Luxembourg Exchange Agent
Agreement, the Fiscal Agency Agreement, the New Global Bonds or any other
document to be furnished thereunder be filed or recorded with any court or other
authority in the Republic, other than the submission of executed documents to
the Bangko Sentral, or that any tax of the Republic or any political subdivision
thereof be paid on or in respect of any such document.
(q) Under the laws of the Republic in effect as of the date of the
Prospectus, payments made under the New Global Bonds will be free and clear of
withholding taxes and all other taxes imposed by the Republic to the extent
described in the Prospectus, and no capital gains, income or withholding taxes
and no stamp or other issuance or transfer taxes or duties are payable by or on
behalf of the Dealer Managers or holders of the New Global Bonds to any
governmental body in the United States or the Republic on or by virtue of the
execution, delivery or enforcement of this Agreement, the Fiscal Agency
Agreement, the Settlement Agent Agreement, the Luxembourg Exchange Agent
Agreement or the New Global Bonds, in connection with the Invitation or in
connection with the sale and delivery of the New Global Bonds as contemplated in
this Agreement and the Fiscal Agency Agreement, other than income tax imposed by
the United States or the Republic on the income of any Dealer Manager if its net
income is otherwise subject to tax by such jurisdiction.
(r) Until the Settlement Date, the Republic will not, without your
prior written consent, offer, sell, contract to sell or otherwise dispose of any
securities issued or guaranteed by the Republic that are denominated in U.S.
dollars and have the same approximate maturity as, and that are otherwise
substantially similar to, the New Global Bonds; provided, however, that the
foregoing clause shall not apply to private placements of securities issued or
guaranteed by the Republic during such period. The Republic will cause the Old
Bonds that are acquired by it pursuant to any Exchange Offer to be cancelled in
accordance with their terms.
(s) During the period from the date of hereof through the date 30 days
after the Settlement Date, the Republic and agencies of the Republic will not
offer, sell, contract to sell, announce any offering of, or otherwise dispose of
any New Global Bonds.
(t) The Republic has applied for the listing of the New Global Bonds
on the Luxembourg Stock Exchange and will use its best efforts to cause such
listing to be approved on or prior to the Settlement Date.
(u) The Republic will make generally available to its security holders
in the United States and to the Dealer Manager as soon as practicable after the
close of its first fiscal year beginning after the date of this Agreement, a
statement in reasonable detail in the English
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language of its revenues and expenditures for such fiscal year which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(v) The description in the Prospectus and the Registration Statement
of the constitution, laws, statutes and regulations of the Republic or any
subdivision thereof are accurate and complete in all material respects and
fairly present the information purported to be shown.
(w) It is not necessary under the laws of the Republic (i) to enable
the Dealer Managers to enforce their respective rights under this Agreement or
any other document to be furnished hereunder or to enable any holder of New
Global Bonds to enforce its rights under the Fiscal Agency Agreement or the New
Global Bonds or any other document to be furnished thereunder, or (ii) solely by
reason of the execution, delivery or consummation of this Agreement, that any
Dealer Manager or any holder of New Global Bonds be licensed, qualified or
entitled to carry out business in the Republic.
(x) No holder of New Global Bonds will be deemed resident, domiciled,
carrying on business or subject to taxation in the Republic solely by reason of
the execution, delivery, consummation or enforcement of this Agreement or any
other document to be furnished thereunder, nor shall the foregoing be applicable
to any Dealer Manager solely by reason of the execution, delivery, consummation
or enforcement of this Agreement.
10. Conditions. The Dealer Managers are entitled to withdraw as Dealer
Managers in connection with the Invitation at any time if conditions set forth
in this Section 10 are not met or waived, and the obligations of the Dealer
Managers hereunder are at all times subject, in their discretion, to the
following conditions:
(a) All representations and warranties and other statements of the
Republic contained in this Agreement are, on the date hereof (the "Commencement
Date"), and at all times during the Invitation and until the Settlement Date,
true and correct in all material respects.
(b) The Republic at all times from the date hereof through the
Settlement Date must have performed in all material respects all of its
obligations hereunder theretofore required to have been performed.
(c) (i) The Prospectus Supplement shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act and in
accordance with Section 4(d) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for the purpose thereof shall have been initiated or
threatened by the Commission on or prior to the Settlement Date; and (iii) all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction.
11
(d) On the Commencement Date and the Settlement Date, Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, your United States counsel, must have furnished to
you such written opinion or opinions, dated the respective date of delivery
thereof, in form and substance reasonably satisfactory to you. In rendering such
opinion or opinions, Cleary, Gottlieb, Xxxxx & Xxxxxxxx may rely as to all
matters of Philippine law upon the opinions referred to in paragraphs (e) and
(f) of this Section 10.
(e) On the Commencement Date and the Settlement Date, Xxxxxx, Mabanta,
Buenaventura, Sayoc & de Los Angeles, your Philippine counsel, must have
furnished to you such written opinion or opinions, dated the respective date of
delivery thereof, in form and substance reasonably satisfactory to you. In
rendering such opinion or opinions, such counsel may rely as to all matters of
United States Federal and New York law upon the opinion of Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, referred to in paragraph (d) of this Section 10.
(f) On the Commencement Date and the Settlement Date, the Secretary of
Philippine Department of Justice, Philippine counsel for the Republic, must have
furnished to you a written opinion or opinions, dated the respective date of
delivery thereof, in form and substance reasonably satisfactory to you. In
rendering such opinion or opinions, such counsel may rely as to all matters
related to United States Federal and New York law upon the opinion of Xxxxx &
Overy, referred to in paragraph (g) of this Section 10.
(g) On the Commencement Date and the Settlement Date, Xxxxx & Xxxxx,
United States counsel for the Republic, must have furnished to you their written
opinion or opinions, dated the respective date of delivery thereof, in form and
substance reasonably satisfactory to you. In rendering such opinion or opinions,
such counsel may rely as to all matters of Philippine law upon the opinion of
the Secretary of Philippine Department of Justice, referred to in paragraph (f)
of this Section 10.
(h) On the Commencement Date and the Settlement Date, the Republic
must have furnished to you a certificate in English, dated the respective date
of delivery thereof, signed by the Secretary of Finance of the Republic, to the
effect set forth in Section 10c(ii) and Section 10(k) (with respect to the
certificate delivered on the Settlement Date) and to the effect that the
representations and warranties of the Republic contained in this Agreement are
true and correct in all material respects as of the respective date of such
certificate and that the Republic has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder in all material respects on or before the respective date of such
certificate.
(i) Since the respective dates as of which information is given in the
Prospectus, on the Commencement Date and on or prior to the Settlement Date,
there shall not have been any change, or any development involving a prospective
change, in or affecting the financial, economic or political condition of the
Republic, other than as set forth in the Prospectus, the effect of which, in any
such case, is in your judgment material and adverse such as to make it
impracticable to effect the Invitation, the acquisition of the Old Bonds or the
delivery of New Global Bonds on the terms and in the manner contemplated by the
Prospectus.
12
(j) Subsequent to the Commencement Date and on or prior to the
Settlement Date, none of the following must have occurred, if the effect of any
such event, singly or together with any other such event, in your judgment makes
it impracticable to effect the Invitation, the acquisition of the Old Bonds or
the delivery of the New Global Bonds on the terms and in the manner contemplated
by the Prospectus, or would materially and adversely affect the market for the
New Global Bonds: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange, the London Stock Exchange
or the Luxembourg Stock Exchange; (ii) a suspension or material limitation in
trading in any securities of the Republic on any international exchange or
over-the-counter market; (iii) a general moratorium on commercial banking
activities in New York, London or the Republic declared by either United States
or New York State authorities or authorities of London or the Republic,
respectively; (iv) the outbreak or escalation of hostilities involving the
United States or the Republic or the declaration by the United States or the
Republic of a national emergency or war; or (v) the occurrence of any calamity
or crisis or any material adverse change in international financial markets or
the existing financial, political or economic conditions in the United States,
the Republic or elsewhere.
(k) Subsequent to the Commencement Date and on or prior to the
Settlement Date, there has not occurred any downgrading, and no notice has been
given of any intended or potential downgrading or of any review for a possible
change that does not indicate the direction of the possible change, in the
rating accorded the Republic or any of the Republic's securities or securities
guaranteed by the Republic or in the rating outlook for the Republic by any
nationally recognized statistical rating organization.
(l) On or prior to the Settlement Date, the Republic must have
furnished to you such further information, opinions, certificates, letters and
documents as you may reasonably request.
11. Indemnification. (a) The Republic shall indemnify and hold you and each
person, if any, who controls any Dealer Manager within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, harmless
against (and, if applicable, reimburse you for):
(i) any and all losses, claims, damages, liabilities and reasonable
expenses (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) in respect thereof (1) which are caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, the Prospectus (as amended
or supplemented if the Republic shall have furnished any amendments or
supplements thereto), the Offering Materials or any of the documents
referred to therein or in any amendment or supplement to any of the
foregoing, or which is caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or, in the case of the Prospectus,
in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any
13
such untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Dealer Manager furnished to the
Republic in writing by such Dealer Manager expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to
any Prospectus or any amendment or supplement thereto shall not inure to
the benefit of any Dealer Manager from whom the person asserting any such
losses, claims, damages or liabilities purchased New Global Bonds, or any
person controlling such Dealer Manager, if a copy of the Prospectus (as
then amended or supplemented if the Republic shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of
such Dealer Manager to such person, if required by law so to have been
delivered, at or prior to the delivery of the written confirmation of the
sale of the New Global Bonds to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities; or (2) which arises out of or is
based upon a withdrawal, rescission, termination or modification of or a
failure to make or consummate the Invitation; and
(ii) any other loss, damage, reasonable and documented expense,
liability or claim (or action in respect thereof) that otherwise arises out
of or is based upon or asserted against such Dealer Manager in connection
with its acting as Dealer Manager in connection with the Invitation, or
rendering any financial advisory services to the Republic in connection
with the Invitation, except to the extent that any such loss, damage,
expense, liability or claim (or action in respect thereof) results from
such Dealer Manager's gross negligence, bad faith or willful misconduct in
performing the services that are the subject of this Agreement.
The Republic acknowledges that, except as otherwise provided herein, no Dealer
Manager, nor any of its affiliates, nor any partners, directors, agents,
employees or controlling persons (if any), as the case may be, of such Dealer
Manager or any of its affiliates, shall have any liability, in tort or contract
or otherwise, to the Republic, or any person asserting a claim on behalf of or
in the right of the Republic, for or in connection with any matter referred to
in this Agreement except to the extent that any such loss, damage, expense,
liability or claim incurred by the Republic results from such Dealer Manager's
gross negligence, bad faith or willful misconduct in performing the services
that are the subject of this Agreement.
(b) Each Dealer Manager shall, severally and not jointly, indemnify
and hold harmless the Republic and its officials who sign the Registration
Statement and each person, if any, who controls the Republic within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Republic to such Dealer
Manager, but only with reference to information relating to such Dealer Manager
furnished to the Republic in writing by such Dealer Manager expressly for use in
the Registration Statement, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 11(a) or 11(b), such person (the "indemnified party")
shall promptly notify the person
14
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceedings, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties of any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by you, in the case of
parties indemnified pursuant to Section 11(a), and by the Republic, in the case
of parties indemnified pursuant to Section 11(b). The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement (i) includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of this proceeding and (ii) does not include any statement as to or any
admission of fault, culpability or a failure to act by or on behalf of such
indemnified party.
(d) If the indemnification provided for in this Section 11 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative economic benefits received by the indemnifying party on the one hand
and the indemnified party on the other from the Invitation. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative
15
benefits but also the relative fault of the Republic on the one hand and you on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative economic benefits
of the Republic on the one hand and you on the other shall be deemed to be in
the same proportion as the aggregate principal amount of the New Global Bonds
issued by the Republic pursuant to the Invitation bears to the maximum aggregate
fee paid to you pursuant to Section 6 of this Agreement as a result of the
Invitation. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Republic on the one hand or you on the other and the Republic's
or your relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Republic and you agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation (even if you were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
foregoing, no person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. Your
obligations in this subsection (d) to contribute are several in proportion to
your respective obligations hereunder and not joint.
(e) The remedies provided for in this Section 11 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
12. Termination and Survival of Certain Provisions. (a) This Agreement may
be terminated by you (i) if after the execution and delivery of this Agreement
and prior to the Settlement Date there has been (1) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the London Stock Exchange or the Luxembourg Stock Exchange; (2) a suspension or
material limitation in trading in any securities of the Republic on any
international exchange or over-the-counter market; (3) a general moratorium on
commercial banking activities in New York, London or the Republic declared by
either United States or New York State authorities or authorities of London or
the Republic, respectively; (4) the outbreak or escalation of hostilities
involving the United States or the Republic or the declaration by the United
States or the Republic of a national emergency or war; or (5) the occurrence of
any calamity or crisis or any material adverse change in international financial
markets or the existing financial, political or economic conditions in the
United States, the Republic or elsewhere, and in the case of any of the events
specified in clauses 12(a)(i)(1) through 12(a)(i)(5), inclusive, such event,
singly or together with any other such event, makes it, in the judgment of the
Dealer Managers, impractical to effect the Invitation, the acquisition of the
Old Bonds or the delivery of the New Global Bonds on the terms and in the manner
contemplated in the Prospectus, (ii) (1) upon a withdrawal by you as Dealer
Managers under the
16
terms hereof or (2) if the Republic determines to terminate or withdraw the
Invitation prior to consummation thereof, or (iii) by the Republic if it
determines to terminate or withdraw the Invitation prior to consummation
thereof.
(b) The indemnity and contribution agreements contained in Section 11,
the expense reimbursement agreements contained in Section 7 and the
representations and warranties of the Republic set forth in this Agreement shall
remain operative and in full force and effect regardless of (i) any failure to
commence, or the withdrawal, rescission, termination or consummation of, the
Invitation or the termination or assignment of this Agreement, (ii) any
investigation made by or on behalf of any indemnified party and (iii) the
completion of your services hereunder.
13. Consent to Jurisdiction; Appointment of Agent for Service of Process.
(a) The Republic irrevocably submits to the jurisdiction of any federal court in
the Southern District of New York, any state court in the Borough of Manhattan,
The City of New York, or any competent court in the Republic (the "Specified
Courts") over any suit, action or proceeding against it or its properties,
assets or revenues with respect to this Agreement (a "Related Proceeding"). The
Republic waives, to the fullest extent permitted under applicable law, any
objection to Related Proceedings in such courts whether on the grounds of venue,
residence or domicile or on the ground that the Related Proceedings have been
brought in an inconvenient forum. The Republic agrees that a final
non-appealable judgment in any such Related Proceedings (the "Related Judgment")
shall be conclusive and binding upon it and may be enforced in any Specified
Court or in any other courts in the jurisdiction of which the Republic is or may
be subject (the "Other Courts") by a suit upon such judgment.
(b) To the extent that the Republic or any of its revenues, assets or
properties shall be entitled, in any jurisdiction in which any Specified Court
is located, in which any Related Proceeding may at any time be brought against
it or any of its revenues, assets or properties, or in any jurisdiction in which
any Specified Court or Other Court is located in which any suit, action or
proceeding may at any time be brought solely for the purpose of enforcing or
executing any Related Judgment, to any immunity from suit, from the jurisdiction
of any such court, from suit, set-off, from attachment prior to judgment, from
attachment in aid of execution of judgment, from execution of a judgment or from
any other legal or judicial process or remedy, and to the extent that in such
jurisdiction there shall be attributed such an immunity, the Republic
irrevocably agrees not to claim and irrevocably waives such immunity to the
fullest extent permitted by the laws of such jurisdiction, provided that such
agreement and waiver, insofar as it relates to any jurisdiction other than a
jurisdiction in which a Specified Court is located, is given solely for the
purpose of enabling the Settlement Agents to enforce or execute a Related
Judgment. The waiver of immunities referred to herein constitutes only a limited
and specific waiver for the purpose of this Agreement and under no circumstances
shall it be interpreted as a general waiver of the Republic or a waiver with
respect to proceedings unrelated to this Agreement. The Republic does not waive
such immunity in respect of its (i) properties and assets which are used by a
diplomatic or consular mission of the Republic (except as may be necessary to
effect service or process), (ii) property and assets of military character and
under the control of military authority or defense agency or (iii) property
located in the Republic and
17
dedicated to a public or governmental use (as distinguished from patrimonial
property or property dedicated to a commercial use). In addition, the Republic
has not waived its sovereign immunity in connection with any action arising out
of or based on United States federal or state securities laws.
(c) The Republic has appointed the Philippine Consul General in New
York, New York, as its authorized agent (the "Authorized Agent") at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, upon whom process may be served in any action
arising out of or based on this Agreement, which may be instituted in any
Specified Courts by any Dealer Manager. Such appointment will be irrevocable
unless and until all amounts in respect of the New Global Bonds have been paid
by the Republic to the Fiscal Agent or unless and until the Republic shall have
appointed a successor as authorized agent and such successor shall have accepted
such appointment. The Republic agrees that it will at all times maintain an
authorized agent to receive such service, as provided above. The failure of the
Authorized Agent to give the Republic notice of the service of process shall not
affect the validity of any proceeding based on that process or any judgment
obtained pursuant to it. The Republic will take any and all action, including
the filing of any and all documents and instruments, which may be necessary to
continue such appointment or appointments in full force and effect as aforesaid.
Service of process upon the Authorized Agent at the address indicated in this
Section 13, or at such other address in the Borough of Manhattan, The City of
New York, as may be the office of the Authorized Agent at the time of such
service, shall be deemed in every respect, effective service of process upon the
Republic. Upon receipt of such service of process, the Authorized Agent shall
advise the Republic promptly by facsimile of its receipt thereof, but the
failure to so advise shall have no effect on the validity or time in less of any
such service.
The Philippine Consul General in New York, New York, however, is not
the agent for service of process for actions arising out of or based on the
United states federal or state securities laws, and the Republic's waiver of
immunity does not extend to such actions. Because the Republic has not waived
its sovereign immunity in connection with any action relating to such claims, it
will only be possible to obtain a United States judgment against the Republic
based on such laws if a court were to determine that the Republic is not
entitled under the Foreign Sovereign Immunities Act of 1976 to sovereign
immunity with respect to such actions.
(d) In view of such waiver of immunity, the Republic would be subject
to suit in competent courts in the Republic. Judgments obtained against the
Republic in any foreign court in respect of any sum payable by it under this
Agreement would be recognized and enforced by the courts of the Republic in an
action brought to enforce such judgment without re-examination of the issues in
dispute so long as (i) such judgment was not obtained by collusion or fraud,
(ii) the foreign court rendering such judgment had jurisdiction over the case,
(iii) the Republic had proper notice of the proceedings before the foreign court
and (iv) such judgment was not based upon a clear mistake of law or fact.
14. Currency. The payment of any amount due hereunder in U.S. dollars or
any other currency (the "Relevant Currency") is of the essence. To the fullest
extent permitted by law, the
18
obligation of the Republic in respect of any amount due under this Agreement
must, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Relevant Currency that the party entitled to receive such payment may, in
accordance with its normal procedures, purchase with the sum paid in such other
currency (after any premium and costs of exchange) on the business day
immediately following the day on which such party receives such payment. If the
amount in the Relevant Currency that may be so purchased for any reason falls
short of the amount originally due, the Republic shall pay such additional
amounts, in the Relevant Currency, as may be necessary to compensate for the
shortfall. Any obligation of the Republic not discharged by such payment shall,
to the fullest extent permitted by applicable law, be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
15. Severability. If any provision hereof is determined to be invalid,
illegal or unenforceable in any respect, such determination will not affect any
other provision hereof, which will remain in full force and effect so long as
the economic or legal substance of the Invitation and the agreements contained
herein are not affected in any manner adverse to any party.
16. Counterparts. This Agreement may be executed in one or more separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Binding Effect. This Agreement, including any right to indemnity or
contribution hereunder, shall inure solely to the benefit of and be binding upon
the Republic, you and the other indemnified parties, and each of your and their
respective successors and assigns, and no other person or entity shall acquire
or have any right under or by virtue of this Agreement.
18. Time of Essence. Time is of the essence of this Agreement. As used in
this Agreement, the term "business day" means any day, other than a Saturday or
a Sunday, which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
19. GOVERNING LAW. THIS AGREEMENT IS GOVERNED BY AND MUST BE INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW.
20. Cash Offering; Entire Agreement. If the Republic determines to issue
any New Global Bonds pursuant to the Cash Offering and the Republic and you
successfully negotiate a principal amount to be issued pursuant thereto, the
Republic and you will enter into an underwriting agreement (the "Underwriting
Agreement") with respect thereto. This Agreement and, if executed, the
Underwriting Agreement, among the Dealer Managers and the Republic constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof and thereof.
19
21. Notices. All notices and other communications required or permitted to
be given under this Agreement must be in writing and shall be deemed to have
been duly given if delivered personally or sent by reputable international
courier (postage prepaid) or facsimile transmission (with transmission
confirmed), to the parties hereto as follows:
(a) If to you:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Attn: Philippines Exchange
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Attn: Liability Management Group
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Attn: Liability Management
Telephone: 0-000-000-0000
Facsimile: 0-000-000-0000
(b) If to the Republic:
Department of Finance
Office of the Secretary
Department of Finance Building
BSP Complex, Manila
The Republic of the Philippines
Attn: Secretary of International Finance
Telephone: 000-000-0000
Facsimile: 000-000-0000
20
Please indicate your willingness to act as Dealer Managers on the terms set
forth herein and your acceptance of the foregoing provisions by signing in the
space provided below for that purpose and returning to us a copy of this
Agreement, whereupon this Agreement and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
THE REPUBLIC OF THE PHILIPPINES
By: ____________________________
Name:
Title:
Accepted as of the date
first set forth above:
X.X. XXXXXX SECURITIES INC.
By: ____________________________
Name:
Title:
CITIGROUP GLOBAL MARKETS INC.
By: ____________________________
Name:
Title:
DEUTSCHE BANK SECURITIES INC.
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
21
SCHEDULE I
LIST OF JURISDICTIONS
(PURSUANT TO SECTION 4(d) OF THIS AGREEMENT)
Australia
Bahamas
Canada:
- Province of Ontario
- Province of Quebec
Cayman Islands
Denmark
France
Germany
Guernsey
Hong Kong
Ireland
Italy
Japan
Jersey
Korea
Luxembourg
Malaysia
Singapore
Spain
Switzerland
The Netherlands
The Philippines
United Kingdom
1
