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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:
38/2013/TB-LPQT
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Hà Nội, ngày 23
tháng 07 năm 2013
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THÔNG BÁO
VỀ
VIỆC ĐIỀU ƯỚC QUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định tại Luật Ký kết, gia nhập
và thực hiện điều ước quốc tế năm 2005, Bộ Ngoại giao trân trọng
thông báo:
Hiệp định vay vốn giữa nước Cộng hòa xã hội chủ
nghĩa Việt Nam (do Bộ Tài chính đại diện) và Ngân hàng Tái thiết Đức (KfW) cho
Dự án “Nhà máy điện gió Phú Lạc - Giai đoạn 1”, ký tại Frankfurt ngày 04 tháng
7 năm 2013, có hiệu lực kể từ ngày 04 tháng 7 năm 2013.
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
VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
Nguyễn Thị Thanh Hà
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Loan Agreement
Dated 4 July, 2013
between
KfW, Frankfurt am
Main (“KfW”)
and the
Socialist
Republic of Viet Nam
("Borrower")
represented by the
Ministry of
Finance
for
EUR 35,000,000.00
Phu Lac Wind Park
Project
Contents
Preamble
1. Loan
2. Channelling of the Loan to the Project-Executing
Agency
3. Disbursement
4. Fees
5. Interest
6. Repayment and prepayment
7. Calculations and payments in general
8. Federal guarantee
9. Negative pledge and pari passu
10. Costs and public charges
11. Special obligations
12. Reasons for termination
13. Representation and statements
14. General provisions
Annexes
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Annex 1
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Disbursement schedule
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Annex 2
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Specimen legal opinion for the loan agreement
(government)
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Preamble
The basis for this Loan Agreement is the agreement
dated October 11, 2012 between the Government of the Federal Republic of
Germany and the Government of the Socialist Republic of Viet Nam on Financial
Cooperation (FC) ("Government Agreement").
Under the condition that the Federal Republic of
Germany will provide interest rate subsidies and under the condition that the
Federal Republic of Germany will provide a guarantee for the loan KfW will
extend a Loan subject to the terms and provisions of this Loan Agreement. The
terms and conditions of the Loan comply with the OECD requirements applicable
on the date of signing of this Loan Agreement for recognition as Official
Development Assistance (ODA).
1. Loan
1.1 Amount. KfW will extend to the Borrower a
Loan not exceeding a total of
EUR 35,000,000,00
(the "Loan").
1.2 Loan purpose. The Borrower shall channel
the Loan in full to the Thuan Binh Wind Power JSC (TBW) acting as
Project-Executing Agency (the "Project-Executing Agency") in
accordance with the conditions set forth in Article 2. The Borrower shall
procure that the Project-Executing Agency uses the Loan exclusively to finance
the construction of the Phu Lac Wind Park as well as consulting services
("Project") and primarily to pay the foreign exchange costs.
The Project-Executing Agency and KfW will define the details of the Project as
well as the goods and services to be financed from the Loan in a separate
agreement.
1.3 Taxes, charges, customs duties. Taxes
and other public charges owed by the Borrower or the Project-Executing Agency
as well as customs duties may not be financed from the Loan.
2. Channelling of the Loan to
the Project-Executing Agency
2.1 Onlending Agreement. The Borrower shall
channel the Loan on an on-lending basis to the Project-Executing Agency in
accordance with the laws of Viet Nam.
2.2 Certified Translation. Prior to the
first disbursement from the Loan, the Borrower shall send KfW the confirmation
or the on-lending agreement respectively (together with translations thereof).
2.3 No Liability of Project-Executing Agency.
The channelling of the Loan shall not constitute any liability of the
Project-Executing Agency to KfW for payment obligations under this Loan
Agreement.
3. Disbursement
3.1 Request for disbursement and disbursement
schedule (Annex 1). As soon as all conditions precedent to disbursement
pursuant to Article 3.3 are fulfilled, KfW will disburse the Loan in accordance
with the progress of the Project upon request of the Borrower. Disbursement
will be effected in accordance with the disbursement schedule contained in
Annex 1 to this Loan Agreement. KfW will make disbursements only up to the
maximum amounts determined for each half-year. To the extent the Borrower
requests disbursement of lower amounts within any half-year the undisbursed
amounts may be requested in the next ensuing half-years.
3.2 Deadline for requesting disbursement.
KfW may deny disbursements after 31.12.2016 or on any other date thereafter as
agreed upon in writing by KfW and the Borrower.
3.3 Conditions Precedent to Disbursement.
KfW is obligated to make disbursements of any amount under this Loan Agreement
only upon fulfilment of the following conditions precedent in a form and
content acceptable to KfW:
a) the Borrower has furnished to KfW a legal
opinion satisfactory to KfW and substantially in the form of Annex 2 and
certified copies (each with a German or English translation) of all documents
to which this legal opinion refers proving that
aa) the borrower has met all requirements under its
constitutional law and other legal provisions for the valid assumption of all
its obligations under this Loan Agreement, and
bb) KfW is exempted from all taxes on income from
interest, charges, fees and similar costs in the Socialist Republic of Viet Nam
when granting the Loan;
b) the specimen signatures mentioned in Article
13.1 (Representation of the Borrower) have been submitted;
c) the Guarantee from the Federal Republic of
Germany mentioned in Article 8 is in force and effect without any restriction;
d) the Borrower has sent KfW the confirmation or
the respective on- lending agreement (together with translations thereof)
specified in Article 2.2;
e) no reason for termination has occurred or is
threatening; and
f) no extraordinary circumstances have arisen that
preclude or seriously or materially jeopardise the implementation, the
operation, or the purpose of the Project, or the performance of the payment
obligations assumed by the Borrower under this Loan Agreement.
Prior to disbursement from the Loan KtW has the
right to demand such further documents and evidence (e.g. a current financing
plan for the Project) as it reasonably deems necessary.
3.4 Separate Agreement. In a separate
agreement the Project-Executing Agency and KfW will specify the disbursement
procedure including specific conditions precedent to disbursement and in
particular the evidence to be furnished by the Project-Executing Agency proving
that the requested Loan amounts are used for the purpose stipulated in this
Loan Agreement.
3.5 Waiver of disbursement. Subject to the
fulfilment of its obligations under Article 11 the Borrower may waive the
disbursement of undisbursed Loan amounts with the consent of KfW in exchange
for the payment of the non-acceptance compensation pursuant to Article 3.6.
3.6 Non-acceptance compensation. If the
Borrower waives disbursement of a loan amount, or if a Loan amount is not
disbursed at all or is not disbursed by the deadline stated in Article 3.2 for
other reasons for which KfW cannot be held accountable, the Borrower will
promptly pay to KfW upon its request such amount as is necessary to compensate
KfW for any losses, expenses or costs incurred by KfW as a result of the non-acceptance
of the Loan amount in question. KfW will calculate the amount of the
non-acceptance compensation and communicate it to the Borrower.
3.7 Borrower’s rights. If KfW fails to
comply with its obligations under this Loan Agreement, the Borrower may submit
a dispute to arbitration in accordance with this Loan Agreement and/or seek
damages from KfW by submitting a dispute to arbitration or any court of
competent jurisdiction (in accordance with Clause 14.9 (Legal Disputes)).
4. Fees
4.1 Commitment fee. The Borrower will pay a
non-refundable commitment fee of 0,25 % p. a. on undisbursed Loan amounts. The
commitment fee will be computed for the period beginning on the earliest of the
following two dates (1) the date on the elapse of 12 months following the
signing date of this Loan Agreement and (2) the date of the first disbursement
under the Loan and lasting until such date the Loan has been disbursed in full,
or fully cancelled, as the case may be.
The commitment fee is due for payment semi-annually
and in arrears on 30 June and 30 December of each year (each a "Payment
Date"). It is first due for payment on the Payment Date following the
elapse of a six month period following the signing of this Loan Agreement.
5. Interest
Interest. The Borrower will pay interest on the
Loan in accordance with the following provisions:
5.1 Interest (fixed interest rate set upon
commitment of the Loan.) The Borrower shall pay interest on the Loan at a
rate of 1 % p. a, ("Fixed Interest Rate") until the last
repayment instalment according to the Repayment Schedule as defined in Article
6.1 has been received.
5.2 Calculation of interest and interest payment
dates. The interest on a disbursed Loan amount will be charged from the
date (exclusively), on which the respective Loan amount is paid out of the Loan
account held with KfW for the Borrower until the date (inclusively), on which
the respective repayments are credited to KfW's account stated in Article 7.3.
Interest will be calculated in accordance with Article 7.1 (Calculation).
Interest will be paid in arrears on the Payment Dates (as defined in Article
4.1).
6. Repayment and prepayment
6.1 Repayment schedule. The Borrower will
repay the Loan as follows:
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Instalment
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Date
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Amount
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1
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December 30,
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2016
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1,842,000.00
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EUR
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2
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June 30,
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2017
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1,842,000.00
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EUR
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3
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December 30,
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2017
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1,842,000.00
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EUR
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4
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June 30,
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2018
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1,842,000.00
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EUR
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5
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December 30,
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2018
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1,842,000.00
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EUR
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6
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June 30,
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2019
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1,842,000.00
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EUR
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7
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December 30,
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2019
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1,842,000.00
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EUR
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8
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June 30,
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2020
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1,842,000.00
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EUR
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9
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December 30,
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2020
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1,842,000.00
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EUR
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10
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June 30,
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2021
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1,842,000.00
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EUR
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11
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December 30,
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2021
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1,842,000.00
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EUR
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12
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June 30,
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2022
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1,842,000.00
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EUR
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13
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December 30,
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2022
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1,842,000.00
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EUR
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14
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June 30,
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2023
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1,842,000.00
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EUR
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15
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December 30,
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2023
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1,842,000.00
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EUR
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16
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June 30,
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2024
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1,842,000.00
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EUR
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17
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December 30,
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2024
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1,842,000.00
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EUR
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18
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June 30,
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2025
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1,843,000.00
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EUR
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19
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December 30,
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2025
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1,843.000.00
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EUR
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Total
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35,000,000.00
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EUR
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6.2 Undisbursed loan amounts. Undisbursed
Loan amounts will be offset against the respective last repayment instalment
due at any one time pursuant to the repayment schedule unless KfW, at its own
discretion, chooses another offsetting mode in an individual case.
6.3 Disbursements after the start of repayment.
If any Loan amounts are disbursed after their respective repayment period has
started, this will not affect the Repayment Schedule so long as the repayment
instalment due under the Repayment Schedule at any one time is lower than the
loan amount outstanding. If the repayment instalment due for payment exceeds
the loan amount outstanding, KfW will adjust the Repayment Schedule
accordingly. KfW reserves the right to postpone taking disbursements that are
made within 45 days prior to the respective Payment Date into consideration for
the determination of the outstanding loan amount until the next Payment Date.
6.4 Prepayment. The following will apply to
early repayments:
a) Right to make prepayments. The Borrower
may repay the Loan in full or part but at least in the amount of one repayment
instalment as per Article 6.1 in advance of maturity against payment of a
prepayment compensation as per Article 6.4 c).
b) Notice. A prepayment of a Loan amount
pursuant to Article 6.4 a) is subject to notification of the prepayment by the
Borrower to KfW no later than on the fifteenth Banking Day (as defined in
Article 14.1) in Frankfurt am Main prior to the intended prepayment date. Such
notice is irrevocable; it must specify the date on which the prepayment is to
be made and the amount thereof and obligates the Borrower to pay to KfW the stated
amount on the stated date.
c) Prepayment compensation. If the Borrower
prepays any Loan amount bearing interest at a Fixed Interest Rate the Borrower
must immediately pay to KfW upon request such amount as is necessary to
compensate KfW for any losses, expenses or costs incurred by KfW as a result of
the prepayment i.e. the excess (if any) of (i) the interest for a Loan amount,
which KfW would have been entitled to claim until the end of the Fixed Interest
Rate Period applying for the Loan amount had the Borrower not dispensed with
the disbursement of the Loan amount, over (ii) the interest which KfW could
receive by reinvesting the respective Loan amount until the end of the Fixed
Interest Rate Period applicable to that Loan amount taking into consideration
the repayment of principal as agreed in the Loan Agreement, provided that such
excess amount must be discounted by the reinvestment interest rate curve thus
determined by KfW. KfW will determine the prepayment compensation and
communicate it to the Borrower.
d) Amounts due. Together with the prepayment
the Borrower will also pay the following amounts:
aa) any prepayment compensation accruing as a
result of the prepayment of Loan amounts; and
bb) all interest accrued on the prepaid Loan amount
up until the date of the prepayment.
e) Offsetting. Article 6.2 (Undisbursed
loan amounts) will apply mutatis mutandis to the offsetting of prepayments.
6.5 Revised repayment schedule. In the event
that Article 6.3 (Disbursements after the start of repayment) or Article
6.4 (Prepayment) applies, KfW will send the Borrower a revised repayment
schedule that will become an integral part of this Loan Agreement and will
replace the repayment schedule valid until such time.
7. Calculations and payments in
general
7.1 Calculation. Interest, the commitment
fee, default interest pursuant to Article 7.5, lump-sum compensation for
overdue amounts pursuant to Article 7.6, non-acceptance compensation and
prepayment compensation will all be calculated on the basis of a 360-day year
with 30-day months.
7.2 Due date. If a payment to be made in
connection with this Loan Agreement falls due on a date that is not a Banking
Day (as defined in Article 14.1) the Borrower must make such payment on the
following Banking Day. If the following Banking Day falls within the next
calendar month, such payment must be made on the preceding Banking Day.
7.3 Account number, time of crediting. The
Borrower will be released from its payment obligations arising from this Loan
Agreement as soon as and to the extent that the corresponding amounts have been
credited to KfW at KfW's free disposal without any deductions in Euro and no
later than 10:00 a.m. in Frankfurt am Main to KfW’s account IBAN DE81 5002 0400
3100 1205 37 held with KfW, Frankfurt am Main, with additional reference of the
due date "Ref. YYYYMMDD") or to another account specified by KfW.
7.4 Counterclaims of the Borrower. The
Borrower is not entitled to assert any rights of retention or set-off or
comparable rights against payment obligations under this Loan Agreement unless
such rights are recognised by final judgment or are not being contested by KfW.
7.5 Default interest. The following will
apply to any overdue repayment instalment and overdue prepayment:
KfW may without prior reminder charge interest on
overdue repayment instalments and overdue prepayments of the Loan pursuant to
Article 6.4 from the period beginning at the due date and ending on the date of
payment in the amount of the Fixed Interest Rate plus 3% p. a. (in words: three
per cent per annum). Such default interest must be paid immediately upon KfW's
first demand.
7.6 Lump-sum compensation. For overdue
amounts (with the exception of such repayment instalments and prepayments as
mentioned in Article 7.5 (Default interest) KfW may, without prior
reminder, request lump-sum compensation of 3% p. a. above the Base Rate
applicable on the respective due date for the period beginning on the due date
and ending on the date of payment of such overdue amounts. The lump-sum
compensation must be paid immediately upon KfW's first demand. The Borrower
shall be free to prove that no damage was in fact incurred or that the damages
were not incurred in the amount as stated. The "Base Rate" is
the interest rate announced by the German Central Bank (Deutsche Bundesbank) as
base rate prevailing on the respective due date.
7.7 Offsetting. KfW has the right to offset
payments received primarily against payments due under this Loan Agreement or
secondarily against payments due under other loan agreements concluded between
KfW and the Borrower.
7.8 Calculations made by KfW. Absent
manifest error KfW's determinations and its calculation of amounts under this
Loan Agreement and in connection with this Loan Agreement shall constitute
prima-facie evidence.
8. Guarantee from the Federal
Republic of Germany
KfW will have payment claims under this Loan
Agreement guaranteed by the Federal Republic of Germany prior to the first
disbursement.
9. Negative pledge and pari
passu
9.1 Prohibition of pledge or mortgage. The
Borrower may not itself and will ensure that the Project-Executing Agency will
neither pledge, nor mortgage nor alienate the Project assets before repayment
in full of the Loan without KfW's prior consent.
9.2 Pari passu. To the extent permitted by law,
the Borrower undertakes to perform the obligations under this Loan Agreement
pari passu with all its other existing or future unsecured and not subordinated
payment obligations except for those which are mandatorily preferred by
applicable Viet Namese law.
10. Costs and public charges
10.1 No deductions or withholdings. The
Borrower will make all payments under this Loan Agreement without any
deductions for taxes, other public charges or other costs. In the event that
the Borrower is obligated by law or for other reasons to effect deductions or
withholdings on payments, the payments made by the Borrower will increase by
such amount as is necessary in order for KfW to receive in full the amounts due
under this Loan Agreement after deduction of taxes and charges.
10.2 Costs. The Borrower will bear all costs
and expenses accruing in connection with the disbursement and repayment of the
Loan, in particular remittance and transfer costs (including conversion fees),
as well as all reasonable, direct and documented costs and expenses accruing in
connection with the enforcement of this Loan Agreement and of all other
documents related to this Loan Agreement as well as all rights of KfW resulting
from this Loan Agreement.
10.3 Taxes and other charges. The Borrower will
bear all taxes and other public charges accruing outside the Federal Republic
of Germany in connection with the conclusion and execution of this Loan
Agreement (other than taxes occurring outside Germany which occur due to, or as
a consequence of an assignment of this Loan by KfW to a third party). If KfW
advances such taxes or charges,
the Borrower will transfer them
without delay upon request to KfW's account as specified in Article 7.3. KfW
will bear all taxes and other public charges accruing in the Federal Republic
of Germany in connection with the conclusion and execution of this Loan
Agreement.
11. Special obligations
11.1 Project implementation and special
information. The Borrower will by itself and will cause the
Project-Executing Agency to
a) prepare, implement, operate and maintain the
Project in conformity with sound financial, technical, and environmental
practices and substan-tially in accordance with the Project conception agreed
upon between the Project-Executing Agency and KfW;
b) assign the preparation and supervision of
construction of the Project to independent, qualified consulting engineers or
consultants, and the implementation of the Project to qualified firms;
c) award the contracts for the goods and services
to be financed from the Loan upon prior international competitive bidding;
d) keep books and records or have books and records
kept that unequivocally show all costs of goods and services required for the
Project and clearly identify the goods and services financed from this Loan;
e) enable the representatives of KfW at any time to
inspect such books and records and any and all other documentation relevant to
the implementation and operation of the Project, and to visit the Project and
all the installations related thereto;
f) furnish to KfW any and all such information and
records on the Project and its further progress as KfW may request; and
g) immediately and of its own accord, forward to
KfW any queries received by the Borrower from the OECD or its members under the
so-called "Agreement for Untied ODA Credits Transparency" following
the award of the contracts for the supplies and services to be financed from
the Loan and will coordinate the reply to any such queries with KfW.
11.2 Separate Agreement. The Project-Executing
Agency and KfW shall determine the details of Article 11.1 by a separate
agreement.
11.3 The Borrower will by itself and will cause the
Project-Executing Agency to
a) ensure the full financing of the Project and,
upon request, furnish to KfW evidence proving that the costs not paid from this
Loan are covered, and
b) promptly inform, each of their own accord, KfW
of (i) the occurrence or potential occurrence of an Event of Default and (ii)
any and all circumstances precluding or seriously jeopardizing the
implementation, the operation or the purpose of the Project.
11.4 The Borrower will assist the Project-Executing
Agency in conformity with sound engineering and financial practices in the
implementation of the Project and in the performance of the Project-Executing
Agency’s obligations under this Loan Agreement and, in particular, grant the
Project- Executing Agency any and all permissions necessary for the
implementation of the Project.
11.5 Compliance. The Borrower will by itself
and will cause the Project-Executing Agency to ensure that
the persons whom they
entrust with the preparation and implementation of the Project, the award of
the contract for the supplies and services to be financed, and with requesting
the Loan amounts do not demand, accept, make, grant, promise or accept the
promise of unlawful payments or other advantages in connection with these
tasks.
11.6 Transport of goods. The provisions set
forth in the Government Agreement, which are known to the Borrower and the
Project-Executing Agency, will apply to the transport of the goods to be
financed from the Loan.
11.7 Money laundering. The Borrower will by
itself and will cause the Project-Executing Agency on demand of KfW to promptly
make available to KfW all information and documents which KfW requires to
fulfil its obligations to prevent money laundering and terrorism financing as
well as for the continuous monitoring of the business relationship with the
Project-Executing Agency, which is necessary for this purpose.
12. Termination
12.1 Events of Default. KfW may exercise the
rights set forth under Article 12.2 (Legal consequences of an Event of
Default) if an event occurs which constitutes a material reason. In
particular, the following events shall each constitute a material reason:
a) the Borrower fails to perform payment
obligations towards KfW when due;
b) obligations under this Loan Agreement or under
separate agreements pertinent to this Loan Agreement have been breached;
c) the Borrower and/or the Project Executing Agency
is unable to prove that the Loan amounts have been used for the stipulated
purpose;
d) this Loan Agreement or any agreement entered
into separately to this Loan Agreement has ceased in whole or in part to have a
binding effect upon the Borrower or the Project-Executing Agency or is no
longer enforceable against the Borrower or the Project-Executing Agency;
e) the Borrower is in default with any payment or
the performance of other financial obligations owing to third parties;
f) any written declaration, confirmation,
information or representation or warranty given by the Borrower and/or the
Project-Executing Agency which is in the opinion of KfW essential for the
granting and maintaining of the Loan proves to be incorrect, misleading or
incomplete in any material aspect;
g) other extraordinary circumstances occur which
delay or preclude the performance by the Borrower and/or the Project-Executing
Agency of its obligations under this Loan Agreement;
h)as reasonably estimated by KfW, the assets,
financial or earnings situation of the Borrower has worsened considerably or
other extraordinary circumstances occur which delay or preclude the fulfilment
of obligations under this Loan Agreement.
12.2 Legal consequences of an Event of Default.
If any of the events specified in Article 12.1 has occurred and has not been
eliminated within a period of five days (in the case of Article 12.1 a)) or, in
all other cases specified in Article 12.1, has not been resolved within a
period determined by KfW which may not, however, be less than 30 days, KfW may
terminate this Loan Agreement or any parts of it with the consequence that
a) its obligations under this Loan Agreement
terminate, and
b) KfW may demand full or partial repayment of the
outstanding Loan amount together with the interest accrued and any and all
other amounts due under this Loan Agreement with Articles 7.5 (Default
interest) and 7.6 (Lump-sum compensation) applying to accelerated
amounts mutatis mutandis.
12.3 Compensation for damages. In the event
that this Loan Agreement is terminated in full or in part as per Article 12.2
hereof, the Borrower will pay non-acceptance compensation in accordance with
Article 3.6 (Non-acceptance compensation) and/or prepayment
compensation in accordance with Article 6.4 c) (Prepayment compensation).
13. Representation and
statements
13.1 Representation of the Borrower. The
Minister of Finance of the Socialist Republic of Viet Nam and such persons as
designated by him or her to KfW and authorised by specimen signatures
authenticated by him or her will represent the Borrower in the execution of
this Loan Agreement. The power of representation will not expire until its
express revocation by the representative of the Borrower authorised at such
time has been received by KfW.
13.2 Addresses. Notices or statements in
connection with this Loan Agreement must be in writing. They must be sent as
originals or - with the exception of requests for disbursement - via facsimile.
Any and all notices or statements made in connection with this Loan Agreement
must be sent to the following addresses:
|
For KfW:
|
KfW
Postfach 11 11 41
60046 Frankfurt am Main / Germany
Germany
Fax: +49 69 7431-2944
|
|
For the Borrower:
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Ministry of Finance
28 Tran Hung Dao Street
Hanoi
Socialist Republic of Viet Nam
Fax: +844 2220 8020
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14. General provisions
14.1 Banking day. Where reference is made in
this Loan Agreement to a "Banking Day" this means a day other than a
Saturday or Sunday on which commercial banks in Frankfurt am Main are open for
general business.
14.2 Place of performance. The place of
performance of all obligations under this Loan Agreement is Frankfurt am Main,
Federal Republic of Germany.
14.3 Partial invalidity and gaps. If any
provision of this Loan Agreement is or becomes invalid, or if there is a gap in
any of the provisions of this Loan Agreement, this will not affect the validity
of the remaining provisions hereof. The parties to this Loan Agreement will
replace any invalid provision by a legally valid one which comes as close as
possible to the spirit and purpose of the invalid provision. The parties will
fill any gap in the provisions with a legally valid provision which comes as
close as possible to the spirit and purpose of this Loan Agreement.
14.4 Written form and amendment. Amendments
and supplements to this Loan Agreement (including this Article 14.4) must be in
writing to be effective and signed by the parties hereto.
14.5 Assignment. The Borrower may not assign
or transfer, pledge or mortgage any claims from this Loan Agreement.
14.6 Applicable law. This Loan Agreement is
governed by the laws of the Federal Republic of Germany.
14.7 Limitation period. All claims of KfW
under this Loan Agreement expire after five years from the end of the year in
which such claim has accrued and in which KfW has become aware of the
circumstances constituting such claim or could have become aware of them
without gross negligence.
14.8 Waiver of Immunity. To the extent that
the Borrower may now or in future in any jurisdiction ciaim for itself or its
assets immunity from suit, execution, attachment or other legal process and to
the extent that in any such jurisdiction there may be attributed to itseif or
its assets such immunity, the Borrower hereby irrevocably agrees not to claim
and hereby irrevocably waives such immunity to the fullest extent permitted by
the laws of such jurisdiction.
14.9 Legal disputes.
Arbitration. All disputes arising out of or
in connection with this Loan Agreement will be settled exclusively and finally
by an arbitration tribunal. In this regard, the following will apply:
aa) The arbitration tribunal will consist of one or
three arbitrators who will be appointed and will act in accordance with the
Arbitration Rules of the International Chamber of Commerce (ICC) applicable
from time to time.
bb) The arbitration proceedings will be conducted
in Frankfurt am Main. The proceedings will be held in the English language.
14.10 Transmission of information. KfW is entitled
to transmit to the Federal Republic of Germany information in connection with
the conclusion and the execution of this Loan Agreement. KfW and the Federal
Republic of Germany are entitled to pass on information related to the Loan and
to the Project to international organisations engaged in the collection of
statistical data, particularly in connection with matters related to debt
service.
14.11 Entry into force. This Loan Agreement
comes into force on the date of the last signature.
This Loan Agreement is executed in two (2)
originals in the English language.
|
Frankfurt am Main,
this 4 July, 2013
KfW
|
Hanoi,
this
Socialist Republic of Viet Nam
represented by the
Ministry of Finance
Vice Minister of Finance.
TRƯƠNG CHÍ
TRUNG
|
Annex
1
Disbursement Schedule
By the end of each disbursement period indicated
below, the Borrower may request disbursement of loan amounts not exceeding in
total the amount indicated below for each disbursement period.
|
Period
|
until...
|
Maximum total
amount that may be disbursed until end of each disbursement period
(accumulated)
(all figures in €)
|
% of total loan
amount
|
|
1
|
30.12.2013
|
1.750.000
|
5%
|
|
2
|
30.06.2014
|
3.500.000
|
10%
|
|
3
|
30.12.2014
|
8.750.000
|
25%
|
|
4
|
30.06.2015
|
22.750.000
|
65%
|
|
5
|
30.12.2015
|
33.250.000
|
95%
|
|
6
|
30.06.2016
|
35.000.000
|
100%
|
Annex
2
|
MINISTRY OF
JUSTICE
-------
|
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
|
|
No.
/BTP-PLQT
Address: 60 Tran Phu street, Hanoi,
Vietnam
Telephone: (84.4) 6 273 9321
Fax: (84.4) 6 273 9360
|
Hanoi,
April ,2012
|
LEGAL OPINION
ON
Loan and Project
Agreement
dated
("Agreement")
FOR
"Phu Lac Wind
Power Project" ("Project")
|
To:
|
KfW
Postfach 11 11 41
60046 Frankfurt am Main
Federal Republic of Germany
Fax: + 49 69 7431-2944
|
Dear Sirs/Madam,
With reference to the (full name of the Agreement),
I, the undersigned, Deputy Minister of Justice, on behalf of the Ministry of
Justice, hereby certify as follows:
After having examined:
- An authentic signed original of the Loan and
Project Agreement dated ( ) (the Agreement) between KfW, Frankfurt am Main, and
the Socialist Republic of Vietnam, represented by the Ministry of Finance (the
Borrower) for ( ),
- Constitutional documents of the Borrower and
documentary evidence of all necessary governmental actions authorising the
execution and delivery of the Agreement,
- All the law, rules, regulations, and procedures
of the Recipient, effective on the date hereof, regarding or relating to the
execution and delivery of the Agreement (or Law No. 29/2009/QH12 dated 17 June
2009 of the National Assembly on Public Debt Management; Decree No.
79/2010/ND-CP dated 14 July 2010 of the Government on Public Debt Management
Operations; Decree No. 118/2008/ND-CP dated 27 November 2008 of the Government
on Function, Duties, Power and Organisation of the Ministry of Finance.)
as I have considered to be necessary or desirable
to examine in order that I may have this opinion. ;
Terms used herein and defined in the Agreement bear
the meanings therein ascribed to them, unless the context otherwise requires.
Accordingly, I am of the opinion that under the
laws of Vietnam as at the date hereof;
1. 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 performance
of the Agreement;
2. The Agreement as signed by Mr. [Dr. Nguyen Thanh
Do, General Director of the External Finance Department of the Ministry of
Finance of the Socialist Republic of Vietnam], who was authorised by [HE Mr.
Minister of Finance Vuong Dinh Hue], has been duly executed and constitutes
legally binding obligations of the Borrower enforceable against it at law in
accordance with its respective terms; (the signer will be determined later,
there may not be Mr. Nguyen Thanh Do)
3. The execution, delivery and performance of the
Agreement by the Borrower and the borrowing under the Agreement, at the date of
issuance of this legal opinion, do not violate any provision of the laws and
regulations of Vietnam.
4. Every consent, license, approval or
authorization of any governmental authority or agency required in connection
with the execution, delivery, performance, legality, validity or enforceability
of the Agreement and the borrowing under the Agreement (including the obtaining
and transference of all amounts due under the Agreement)have been duly obtained
and are in full force and effect;
5. The obligations of the Borrower under the
Agreement constitute legal, valid, binding and enforceable, direct and
unconditional obligations of the Borrower and rank and will rank at least pari
passu with all present unsecured indebtedness and contingent liabilities of the
Borrower;
6. The submission by the Borrower to arbitration in
accordance with the Arbitration Agreement between KfW and the Borrower pursuant
to Article [14.9] of the Agreement is valid under the laws of Vietnam;
7. Under the laws of Vietnam, the choice of the
laws of the Federal Republic of Germany to govern the Agreement is a valid
choice of law, provided that such application or the consequence thereof is not
contrary to the basic principles of the law of the Socialist Republic of
Vietnam. In my opinion the aforementioned condition is met.
8. The waiver by the Borrower of any right of
immunity on grounds of sovereignty or otherwise from jurisdiction, attachment
(before or after judgment) or execution as provided in Article 14.8 of the
Agreement is valid.
9. All payments to be made by the Borrower on the
basis of the Agreement shall be made without withholding or reduction for any
Taxes or Documentary Taxes in accordance with the double taxation treaty
between the Socialist Republic of Vietnam and the Federal Republic of Germany
dated November 6th 1995.
10. Any final and conclusive award obtained in the
arbitral tribunal stipulated in the Agreement shall be recognized and enforced
in accordance with the 1958 New York Convention on the Recognition and
Enforcement of Foreign Arbitral Awards and Vietnam Civil Procedure Code.
This opinion is limited to matters of Vietnam. We
express no opinion with respect to the laws of any other jurisdiction. This
opinion is given solely for the purpose of the Agreement and may not be used
for any other purpose.
|
|
Yours
faithfully,
LE THANH LONG
DEPUTY MINISTER OF JUSTICE
SOCIALIST REPUBLIC OF VIETNAM
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