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BỘ NGOẠI GIAO
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CỘNG HÒA XÃ HỘI
CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số:
36/2015/TB-LPQT
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Hà Nội, ngày 28
tháng 7 năm 2015
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THÔNG BÁO
VỀ VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định của Luật Ký kết, gia
nhập và thực hiện điều ước quốc tế năm 2005, Bộ Ngoại giao trân trọng thông
báo:
Hiệp định tín dụng cụ thể số 5 cho
dự án “Đầu tư nâng cấp trang thiết bị y tế Bệnh viện đa khoa tỉnh Đắk Lắk” giữa
Chính phủ nước Cộng hòa xã hội chủ nghĩa Việt Nam và Ngân hàng UniCredit Áo ”, ký tại Hà Nội ngày 25 tháng 5 năm 2012, có hiệu lực kể từ ngày 30
tháng 6 năm 2015.
Bộ Ngoại giao trân trọng gửi bản sao
hiệp định theo quy định tại Điều 68 của Luật nêu trên./.
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TL. BỘ TRƯỞNG
KT. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
PHÓ VỤ TRƯỞNG
Lê Đức Hạnh
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INDIVIDUAL CREDIT AGREEMENT N O 5
to the General
Credit Facility Agreement dated 23 March /15 June 2010
between
The Ministry of
Finance of the Socialist Republic of Viet Nam
acting on behailf of
The Government of
the Socialist Republic of Viet Nam
as Borrower and
UniCredit Bank
Austria AG
as Lender
With reference to and in application of the above
mentioned General Credit Facility Agreement, the parties hereto agree to this
Individual Credit Agreement. Terms defined in the General Credit Facility
Agreement shall have the same meaning when used herein. The purpose of this
Individual Credit Agreement is to agree to the special terms and conditions for
the financing of the following Supply Contract, which will be financed within
the framework of the General Credit Facility Agreement as described below:
1. THE PROJECT
Investment in improving medical equipments of
General Hospital of Dak Lak Province.
2. THE SUPPLY CONTRACT
Supply Contract in the form and contents as agreed
on 9 October 2014, to be concluded between Odelga Med Ges.m.b.H.,
Carlbergergasse 68, 1230 Vienna, Austria, (Project Exporter) and General
Hospital of Dak Lak Province, No. 2 Mai Hac De, Buon Ma Thuot City, Dak Lak
Province, Viet Nam (Project Buyer) in relation to the above Project.
3. INDIVIDUAL CREDIT FACILITY
Not exceeding EUR 9,996,720.00 or the Project Price
Percentage of the price due 10 the Project Exporter under the Supply Contract
vvhichever is lower.
4. INDIVIDUAL AVAILIBILITY
PERIOD
from the individual Closing Date until the date
falling 9 months after the Individual Closing Date according to the Supply
Contract, however until 31 March 2016 at the latest or any other later date as
the Lender may specify.
5. PAYMENT PROCEDURE
The Borrower hereby irrevocably authorizes the
Lender to make payment(s) to the Project Exporter as stipulated in Annex 3 of
the General Credit Facility Agreement,
6. PROJECT PRICE PERCENTAGE
100%
7. FACILITY ACCOUNT AND
INTEREST
The Austrian Federal Ministry of Finance is in
principal prepared to provide support in the form of an additional grant of 30
% of the guarantee charges, calculated up front, for the benetit of the
recipient country.
The decision whether such support will be given or
not will be made at the time the guarantee of the Republic of Austria is
issued.
The Borrower will pay interest at a fixed rate of
0.9 % p.a. (zero point nine per cent per annum) such interest including partial
compensation for guarantee charges arising in connection with the guarantee
issued by OeKB.
8. REIMBURSEMENT FOR EXPENSES
0.1 per cent of the amcunt of the Individual Credit
Facility flat, as per Section 4. of the General Credit Facility Agreement.
9. MANDATORY REPAYMENT DATES
Repayment is to be made in up to 32 equal
consecutive semi-annual instalments, the first to be due 66 months after the
Provisional Acceptance Date, in any event not later than 75 months after the
Individual Closing Date, on 30 September 2021 at the latest.
10. INDIVIDUAL CLOSING PERIOD
A period beginning with the Acceptance Date of this
Individual Credit Agreement and ending on 30 June 2015 (extendible upon mutual
agreement).
This Individual Credit Agreement shall form an
integral part of the General Credit Facitity Agreement dated 23 March /15 June
2010 in which the contractual details of this financing are arranged. The terms
and conditions set forth in the General Credit Facility Agreement shall fully
apply to the execution and performance of this Individuai Credit Agreement. In
particular Section 10 thereof conceming governing law, arbitration and/or place
of jurisdiction. The Borrovver furthermore confirms that at the date of signing
of this Individual Credit Agreement the Warranties and Undertakings according
to Section 9 are fully valid, no Event of Default according to Section 8 has
occurred and the Legal Opinion as per Annex 4 of the General Credit Facility
Agreement is fully valid and binding.
11. CONDITIONS PRECEDENT
The Conditions Precedent as per Section 7.2. of the
General Credit Facility Agreement shall apply together with the additional
condition that the Lender shall have received
(a) a legal opinion substantially in the form of
Annex A hereto in respect of this Individual Credit Agreement to be issued by
the Ministry of Justice of the Socialist Republic of Viet Nam
(b) cop(ies) of the passport of each person
authorised to sign and deliver this Individual Credit Agreement; and
(c) cop(ies) of the passport of each person
authorised to sign notices under this Individual Credit Agreement on behalf of
the Borrower; and
(d) specimen signatures of each person authorized
to sign and deliver this Individual Credit Agreement on behalf of the Borrower
substantially in the form of Annex B hereto, certified in the manner applicable
to international agreements; and
(e) certified specimen signatures of each person
authorized to sign notices to be given to the Lender under this Individual
Credit Agreement on behalf of the Borrower substantially in the form of Annex B
hereto
12. LAW AND
JURISDICTION/ARBITRATION
(a) This Individual Credit Agreement shall be
governed by the laws of the Republic of Austria.
(b) All disputes arising in connection with this
Individual Credit Agreement, including its conclusion, validity and the rights
and duties of the parties hereunder shall be settled under the Rules of
Conciliation and Arbitration then prevailing of the International Chamber of
Commerce in Paris fay three arbitrators.
(c) The place of arbitration shall be determined by
the arbitrators and be situated in a country member of the 1958 New York
Convention on the Recognition and Entorcement of Foreign Arbitral Awards. In
the event of unteasibility for whatever reason to proceed to arbitration in the
Borrower’s country the court of arbitration of the International Chamber of
Commerce shall decide where arbitration is to be held.
(d) The arbitral award shall determine the
liability of the parties as to the costs
incurred by the parties.
(e) The arbitratert shall make every effort to
conduct the proceedings and to prepare their award in such a way as to render
award enforceable at law.
(f) Judgment upon the award may be entered in any
court having jurisdiction or application may be made to such court for a
judicial acceptance of the award and an order of enforcement, as the case may
be.
(g) Notwithstanding the present agreement to
arbitrate the Lender shall be at liberty at any moment to apply to any
competent judicial authority for interim or conservatory measures.
(h) Should the Lender bring up any legal actions
(including suit, arbitration, attachment, execution or any other enforcement or
conservatory measure) against the Borrower in relation to any matter arising
under this Individual Credit Agreement, the Borrower herewith waives any right
of immunity, which the Borrower might have.
(i) Notwithstanding the toregoing the Borrovver
does not waive any such immunity in respect of its property which is (i) used
by a diplomatic or consuiar mission of the Socialist Republic of Viet Nam, (ii)
property of a military character and under the control of a military authonty
qr defense agency, (iii) located in the Socialist Republic of Viet Nam and
dedicated to a public or governmental use.
(j) Without prejudice to any other mode of Service
allowed under any relevant law, the Borrower irrevocably appoints the
Commercial Counsellor at the Embassy of the Socialist Republic of Viet Nam,
Felix Mottl Strasse 20,1190 Vienna as its agent for Service of process in
relation to any proceedings before the Austrian courts or the arbitrat tribunal
agreed upon in connection with this Individual Credit Agreement; and agrees
that failure by the process agent to notify the Borrower of the process will
not invalidate the proceedings concerned.
FOR AND ON BEHALF OF
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THE MINISTRY OF
FINANCE OF THE SOCIALIST REPUBLIC OF VIET NAM
acting on behalf of The Government of the Soccialist Republic of Viet Nam
……………………………………………….
Hanoi, 25th May 2015
TRƯƠNG CHÍ
TRUNG
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UniCredit Bank
Austria AG
………………………………………………
Vietna. 3 April 2015
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ANNEX
A
(Form of Legal
opinion]
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MINISTRY OF
JUSTICE
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No. /BTP-PLQT
Address: 60 Tran Phu Street
Hanoi, Vietnam
Tel: (84.4) 62739321
Fax: (84.4) 62739359
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SOCIALIST
REPUBLIC OF VIETNAM
Independertce - Preedom – Happiness
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Hanoi, ………, 2015
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To
UniCredit Bank Austria AG
8243 Structured Trade & Export Finance
Schottengasse 6-8
1010 Vienna
Austria
LEGAL OPINION
Regarding the Individual Credit Facilily Agreement
No.... dated 20.. to the General Credit Facility Agreement dated June 15th,
2010 and concluded between the Ministry of Finance of the Socialist Republic of
Vietnam acting on behalf of the Government of the Socialist Republic of Vietnam
and UniCredit Bank Austria AG (the „Agreement’’)
Dear Sirs/Madam,
As the Vice Minister of justice of Vietnam, I issue
this Legal Opinion in connection with the individual Credit Facility Agreement
No. ... dated 20.. (the “Agreement”) to the General Credit Facility
Agreement dated June 15, 2010 (the “General Agreement”) and concluded
between the Ministry of Finance of the Socialist Republic of Vietnam acting on
behalf of the Government of the Socialist Republic of Vietnam (the “Borrower")
and UniCredit Bank Austria AG (the “Lender”).
Terms used herein and detined in the Agreement bear
the meanings therein ascribed to them, unless the context otherwise requires.
Atter having examined:
(i) A copy of the authentic signed original of the
Agreement;
(ii) A copy of the authentic signed origirtal of
the General Agreement;
(iii) A copy of Decision No.
/QD-TTg of the Prime Minister dated
regarding the Agreement;
(iiii) A copy of the Fuli Powers dated
issued by the Ministry of Foreign Affairs evidencing the due authorization
of Mr
, Vice
Minister of Finance to sign the Agreement.
I confirm that there are no other documents
necessary in order that I may render this opinion. In giving this Legal
Opinion, I have assumed without any independent investigation:
(i) that the Agreement has been duly authorized,
executed and delivefed by the Lender; and
(ii) that all signatures, seals and chops of the
Lender are genuine and that all the documents submitted to me as copies conform
to their originals.
This Legal Opinion is based upon the documents
listed above and I have assumed for the purpose hereof that the Agreement and
the General Agreement have not been amended, modified, revcked or rescinded as
of the date hereof.
My opinion is given based on the law of the Socialist
Republic of Vietnam including but not limited to the legal normative documents
of Vietnam, as detined in the Law on Promulgation of Legal Documents adopted by
the National Assembiy of Vietnam on June 03, 2008, which are specitied in Annex
1 attached herewith (the legal normative documents so identified, collectiveiy
the “Legal Normative Documents"). I have not investigated and do
not express or imply any knowledge or opinion on the laws of any other
jurisdiction, and have assumed that no other laws would affect the opinion
expressed herein.
Based upon the foregoing I am of the opinion that:
a) Under the law of the Socialist Republic of
Vietnam the Borrgwer has the legal capacity to enter into the Agreement, to
have rights and obligations thereunder and to fulfil its obligations
thereunder. The Borrower possesses the capacity to sue or be sued in its own
name. The Borrower has the power to own its property.
b) The Borrower has the power and authority to
enter into the Agreement and to borrow under the Agreement and has taken all
necessary legal actions to authorize such borrowing upon the terms and
conditions of the Agreement and to authorize the execution, delivery and
implementation of the Agreement. The borrowing by the Borrower under the
Agreement constitutes a commercial act;
c) Under the law of the Socialist Republic of
Vietnam, the Agreement as signed by Mr Truong Chi Trung, Vice Minister of
Finance of Vietnam, has been duly executed and constitutes legally binding
obligations of the Borrower enforceable against it in the courts of the
Socialist Republic of Vietnam in accordance with its respective terms.
d) Mr. Truong Chi Trung, Vice Minister of Finance
of the Socialist Republic of Vietnam, is fully empowered and duly authorized to
sign the Agreement on behalf of the Borrower.
e) Every consent, license, approval or
authorization of any governmental authority or agency required in connection
with the execution, delivery, implementation, legality, validity or
enforceability of the Agreement and the borrowing under the Agreement
(including the obtaining and transter in EUR of all amounts due thereunder to
the Lender) have been duly obtained and are full in force and effect.
f) All amoynts payable by the Borrower under the
Agreement may be made free and clear of and without deduction for or on account
of any tax, levies, deduction or charge by the Socialist Repubtic of Vietnam,
any political subdivision or taxing authority. In the event of any withholding
of Vietnam Tax in respect of payments of interest under the Agreement the
obligation of the Borrower to pay additional amounts in accordance with Article
6.4 of the General Agreement is valid and enforceable.
g) It is not necessary or advisable to ensure the
tegality, validity, entorceability or admissibility in evidence of the
Agreement that it be filed, recorded or enrolled with any governmental
authority or agency in the Socialist Republic of Vietnam.
h) Under the law of the Socialist Republic of
Vietnam, the choice of the laws of the Republic of Austria to govern the
Agreement is a valid choice of law and will be recognized and enforced in any
court in the Socialist Republic of Vietnam, provided that such application of
the consequence thereof is not contrary to the basic principles of the law of
the Socialist Republic of Vietnam. The waiver of immunity in the Agreement is
valid and binding upon the Borrower.
i) It is not necessary under the law of the
Socialist Republic of Vietnam (i) in order to enable the Lender to entorce its
respective rights under the Agreement, or (ii) by reason of the execution,
delivery, pertormance or entorcement of the Agreement, that the Lender be
licensed, qualified or entitled to carry on business in the Socialist Republic
of Vietnam.
The Lender is not deemed to be resident, domiciled
or having an establishment in Vietnam by reason only of the execution,
delivery, pertormance and/or entorcement of the Agreement..
j) Any final and conclusive award obtained in the
arbitral tribunal stipulated in the Agreement under Artlcle 10 of the General
Agreement will be recognized and entorced in the Socialist Republic of Vietnam
in accordance with the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitrai Awards and Vietnam Civil Procedure Code.
k) To the best of my knowledge, the Agreement do
not contain any provision which shall be held unenforceable under the law of
the Socialist Republic of Vietnam.
I) The obligations of the Borrower under the
Agreement constitute legal, valid, binding and entorceable obligations of the
Borrower and will rank pari passu with all present and future unsecured
indebtedness and contingent loan obligations of the Borrower..
This Legal Opinion is given for the sole benefit of
the Lender and Oesterreichische Kontrollbank Aktiengesellschaft and may not be
disclosed to any other person.
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Yours faithfully
Nguyen Khanh Ngoc
VICE MINISTER OF JUSTICE
SOCIALIST REPUBLIC OF VIETNAM
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ANNEX 1 to Legal
Opinion
LEGAL NORMATIVE
DOCUMENTS OF VIETNAM
The legal normative documents of Vietnam, as
defined in the Law on Promulgation of Legal Documents adopted by the National
Assembly of Vietnam on June 03, 2008 include:
1. Constitution, laws and resolutions of the
National Assembly.
2. Ordinances and resolutions of the Standing
Committee of the National Assembly.
3. Decrees of the Government.
4. Decisions of the Prime Minister.
5. Resolutions of the Justice Council of the
Supreme People’s Court and circulars of the Chief Justice of the Supreme
Peopie's Court.
6. Circulars of the President of the Supreme
People's Procuracy.
7. Circulars of Ministers/ Heads of
Ministry-equivalent Agencies.
8. Decisions of the State Auditor General.
9. Joint resolutions of the Standing Committee of
the National Assembly/ the Government and the Central offices of
socio-political organizations.
10. Joint circulars of the Chief Justice of the
Supreme Peoples Court and the President of the Supreme Peoples Procuracy; those
of Ministers/ Heads of Ministry-equivalent Agencies and the Chief Justice of
the Supreme Peoples Court/ the President of the Supreme Peoples Procuracy;
those of Ministers/ Heads of Ministry-equivalent Agencies.
11. Legal normative documents of People’s Councils
and People’s Committees.
ANNEX
B
(List of authorised
perdond and specimen signatues)
The following persons are authorized to sign and
deliver the Individual Credit Agreement no [……] between the Ministry of Finance
pf the Socialist Republic of Viet Nam acting on bshalf of the Government of the
Socialist Republic of Viet Nam as Borrower and UniCredit Bank Austria AG as
Lender dated …., 2015 and any notices in connection therewith:
a) the below mentioned person (s) is authorized to
sign and deliver the a.m. Individual Credit Agreement:
1. (name and function/title) (signature)
2. (name and function/title) (signature)
3. (name and function/title) (signature)
b) the following persons (s) is authorezed to sign
notices to be given to the Lender under the a.m. Iidividual Credit Agreement on
behalf of the Borrower:
1. (name and function/title) (signature)
2. (name and function/title) (signature)
3. (name and function/title) (signature)
Certified by:
……………………………………………………….
[e.g. Financial Policy Department, Ministry of
Finance of the Socialist Republic of Viet Nam]