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PRIME MINISTER
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 1604/TTg-KTN
Re: Primary contents of build operate
transfer (BOT) contracts and governmental guarantees applying to thermal
power plant projects invested under BOT contracts.
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Hanoi, September
12, 2011
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To:
- Ministries of Industry and Trade, Planning and
Investment, Finance, Justice, Natural Resources and Environment;
- The State Bank of Vietnam;
- The Vietnam Electricity (EVN).
At the requests of the Ministry of Industry and
Trade (official dispatch No. 5367/BCT-NL dated June 16, 2011); Ministry of
Planning and Investment (official dispatch No. 4705/BKHDT-GSTDDT dated July 18,
2011), Ministry of Finance (official dispatch No. 10068/BTC-TCDN dated July 29,
2011), Ministry of Natural Resources and Environment (official dispatch No.
2597/BTNMT-KH dated July 15, 2011), Ministry of Justice (official dispatch No.
4180/BTP-PLQT dated July 19, 2011), State Bank of Vietnam (official dispatch
No. 5500/NHNN-QLNH dated July 18, 2011); pursuant to the conclusion of the standing
meeting of the Government dated August 23, 2011 on primary contents of BOT
contracts and governmental guarantees applying to thermal power plant projects
invested under BOT contracts; the Prime Minister makes responses as follows:
Thermal power plant projects invested under BOT
contracts on the list of electricity projects stated in the Decision No.
1208/QD-TTg dated July 21, 2011 by the Prime Minister on approval of the
national power development planning for the period of 2011 - 2020 with an orientation
to 2030 (except for projects approved by the Prime Minister whose contents are
different from contents stated herein) shall be entitled to apply the following
contents:
1. Primary contents of a BOT contract:
a) Applicable laws:
- BOT companies shall operate in accordance with
regulations of Vietnam law.
- Any dispute arising in the course of application
and interpretation of the BOT contract may apply to foreign laws selected by
parties to the contract.
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c) Tax incentives:
- Exemption of tax on loan interest.
- Corporate income tax: tax exemption for four (4)
years from the day on which the taxable income is earned; 5% tax for the next
nine (9) years and 10% tax for the remaining duration of the contract.
- Export and import duties: exemption of import
duties on materials, supplies and integrated equipment which cannot be produced
in Vietnam or can be produced in Vietnam but have not met integration and
quality requirements.
d) Mortgage of land use rights: Investors shall be
entitled to enjoy exemption from land rental and have the right to mortgage the
property on land at credit institutions or credit agents that are permitted to
operate in Vietnam. In the cases where the property on land is transferred, the
transferee shall have the inheritance of land use rights associated with the
property for the remaining duration of the contract and shall not repurpose
that land.
dd) Electricity prices stated in the power purchase
agreement shall be expressed as U.S. dollar and the payment shall be made in
Vietnamese dong.
e) In case of force majeure events resulting in the
Vietnamese party not being able to continue to purchase electricity and must
prematurely terminate the BOT contract: The Vietnamese Government shall acquire
the plant for a price equal to the remaining value of the plant corresponding
to the remaining portion of the remaining loan and equity that has not been
recovered.
2. Regarding governmental guarantees:
a) Project contract term and duration of
governmental guarantees:
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- Duration of governmental guarantees:
+ BOT contract: the whole project contract term.
+ Power purchase agreement: 15 years if the project
uses gas and 18 years if the project uses coal.
b) The Government shall provide guarantee for
fulfillment of obligations of the Ministry of Industry and Trade stated in the
BOT contract.
c) The Government shall provide guarantee for
fulfillment of obligations to pay EVN for electricity mentioned in the power
purchase agreement.
If the project uses domestic coal provided by the
Vietnam National Coal - Mineral Industries Group (Vinacomin), the payment by
Vinacomin shall be guaranteed through the BOT contract. The Government shall
not provide guarantee for the transport of coal.
If the project uses gas provided by the Vietnam Oil
and Gas Group (PVN), the payment by PVN shall be guaranteed indirectly through
the BOT contract.
d) The Government shall make guarantees for
fulfillment of obligations of state-owned enterprises that invest in
construction, operate general infrastructure used in electricity centers.
dd) The Government shall be responsible for
conversion into U.S. dollars for 30% of the project revenue in VND after
deducting expenditures in Vietnamese dong.
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PP. PRIME
MINISTER
DEPUTY PRIME MINISTER
Hoang Trung Hai