THE
PRIME MINISTER
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
--------------
|
No.
14/2009/QD-TTg
|
Hanoi,
January 21, 2009
|
DECISION
PROMULGATING THE REGULATION ON THE PROVISION OF GUARANTEE FOR
ENTERPRISES TO BORROW LOANS FROM COMMERCIAL BANKS
THE PRIME MINISTER
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the December 16, 2002 Law on State Budget;
Pursuant to the February 12, 1997 Law on Credit Institutions and the May 16,
2004 Law
Amending and Supplementing a Number of Articles of the Law on Credit
Institutions:
Pursuant to the November 29, 2005 Enterprise Law;
Pursuant to the Government's Decree No. 30/ 2008/NQ-CP of December 11, 2008. on
urgent measures to curb economic decline, maintain economic growth and ensure
social welfare;
At the proposal of the Minister of Finance,
DECIDES:
Article 1.
To promulgate together with this Decision the Regulation on the provision of
loan guarantee for enterprises to borrow loans from commercial banks lawfully
operating in Vietnam.
Article 2.
To assign the Vietnam Development Bank to provide guarantee for enterprises
wishing to borrow loans from commercial banks for implementing investment
projects or production and business plans under the Regulation issued together
with this Decision.
Article 3.
Local credit guarantee funds for small- and medium-sized enterprises shall
operate under the Prime Minister's Decision No. 193/ 200l/QD-TTg of December
20. 2001, promulgating the Regulation on establishment and operation of credit
guarantee funds for small- and medium-sized enterprises and Decision No.
115/2004/QD-TTg of June 25, 2004. amending and supplementing Decision No.
193/200l/QD-TTg of December 20, 2001. with some articles to be amended and
supplemented as follows:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. To replace Clause I, Article
16 of Decision No. 193/2001/QD-TTg of December 20, 2001, with Article 6 of the
Regulation issued together with this Decision.
Article 4.
This Decision takes effect on the dale of its signing.
Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, presidents
of provincial-level People's Committees and the Chairman of the Management
Board and the Director General of the Vietnam Development Bank shall implement
this Decision.
PRIME
MINISTER
Nguyen Tan Dung
REGULATION
ON PROVISION OF GUARANTEE FOR ENTERPRISES TO BORROW LOANS
FROM COMMERCIAL BANKS
(Issued together with the Prime Minister's Decision No. 14/2009/QD-TTg of
January 21, 2009)
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
GENERAL PROVISIONS
Article 1.
Subjects eligible for loan guarantee
Subjects eligible for the
Vietnam Development Bank's loan guarantee are enterprises of all economic
sectors (including cooperatives) which have a maximum charter capital of VND 20
billion and employ up to 500 laborers (below referred to as enterprises).
Article 2.
Scope of loan guarantee
1. The Vietnam Development Bank
shall provide guarantee for enterprises to borrow loans from commercial banks
lawfully operating in Vietnam to carry out investment projects on production
and business development (borrowing loans for investment in fixed assets) or to
implement production and business plans (borrowing working capital) in
accordance with law.
2. Guarantee will not be
provided to real estate consultancy and dealing and securities trading
enterprises and enterprises providing services (excluding transportation,
education and training and healthcare); and enterprises borrowing loans to pay
debts owed under other credit contracts.
Article 3.
Interpretation of terms
In this Regulation, the terms
below a construed as follows:
1. Parties involved in a
guarantee:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- The guaranteed is an
enterprise.
- The guarantee is a commercial
bank lawfully operating in Vietnam.
2. Guarantee deed means a
written unilateral commitment of the guarantor to the guarantee that the
guarantor shall perform financial obligations for the guaranteed if the
guaranteed is unable to pay debts or fully pay debts as committed to the guarantee.
3. Loan guarantee contract means
a written agreement conducted between the guarantor and the guaranteed under
which the guarantor shall perform financial obligations for the guaranteed if
the guaranteed is unable pay debts or fully pay debts as committed to the
guarantee.
Article 4.
Principles on loan guarantee
1. All conditions for loan
guarantee prescribed by law and this Regulation must be fully met.
2. Involved parties shall
exercise all rights and perform all obligations related to the guarantee in
accordance with law.
3. The guaranteed may neither
transfer assets formed from loans borrowed for investment projects nor use
assets formed from loan capital in other credit and guarantee activities.
4. The guarantor may sell assets
mortgaged as guarantee security to retrieve debt amounts already paid for the
guaranteed.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Falling within the eligible
subjects and scope of guarantee prescribed in Articles 1 and 2 of this
Regulation.
2. Having an efficient
investment project on production and business development or production and
business plan. An investment project on production and business development
must be capitalized at least VND I(K) million.
3. Owing no overdue debts to
credit institutions and economic organizations.
4. Having no tax arrears. If an
enterprise has tax arrears but comes up with an efficient production and
business development project or production and business plan, the guarantor may
proceed with evaluating its project or plan and decide to provide loan
guarantee under this Regulation.
5. Having at least 10% of equity
in the production or business development project or production or business
plan.
6. Mortgaging the whole value of
assets formed from loan capital (up to 90%) and equity (at least 10%) to secure
the guarantee at the guarantor.
Chapter II
SPECIFIC PROVISIONS
Article 6.
Guarantee levels and currencies used for loan guarantee
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. Currencies used for loan
guarantee are Vietnam dong and freely convertible foreign currencies.
Article 7.
Loan guarantee term
The loan guarantee term must
match the term of loans provided by the guarantee which, however, must not be
longer than the capital recovery term (for cases of borrowing loans for
investment in fixed assets) and the production and business cycle (for cases of
borrowing working capital).
Article 8.
Loan guarantee charges
1. Annual guarantee charges must
not exceed 0.5% of the guaranteed amount. ('harges shall be collected according
to the guarantee term as agreed upon in the loan guarantee contract. The
guarantor may exempt or reduce guarantee charges in case the guaranteed
encounters force majeure risks (natural disasters, fires.)
2. The guarantor may use 25% of
the collected charge amounts to cover management expenses related to guarantee
activities and remit the remaining amount into the loan guarantee risk reserve
fund.
Article 9.
A dossier of request for loan guarantee
1. The enterprise's written
request for loan guarantee.
2. Documents proving the
enterprise's eligibility for guarantee as prescribed in Article 5 above.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. When wishing to borrow loans
eligible for guarantee, enterprises shall send a dossier of request for loan
guarantee to the Vietnam Development Bank.
2. Within 20 working days after
receiving a complete dossier, the Vietnam Development Bank shall evaluate the
dossier. If all conditions are met. it shall issue a notice of guarantee
approval to the loan-borrowing enterprise. In case of refusal to grant
guarantee, the Vietnam Development Bank shall notify the enterprise thereof and
clearly explain reasons for the refusal.
3. On the basis of the
enterprise's loan request and the guarantor's written notice of guarantee
approval, the guarantee shall consider and sign a credit contract with the enterprise.
4. After a credit contract is
concluded between the guarantee and the guaranteed, the guarantor shall sign a
loan guarantee contract, a guarantee security contract and issue a guarantee
deed for the guaranteed to borrow loans from the guarantee.
5. The guarantee:
- The guarantee shall provide
loans to the guaranteed according to the State Bank of Vietnam's regulations on
the mechanism on the provision of loans by commercial banks to borrowers.
- To apply all measures to
retrieve debts according to current regulations (adjusting the debt-payment
time limit and level and extending debts) when the guaranteed encounters
temporary difficulties.
- To immediately notify the
guarantor of changes in the credit contract, adjustments of the debt-payment
time limit and level, debt extension or breaches of the contract committed by
the guaranteed which may affect the debt retrieval capability, for coordinated
handling.
- After measures have been taken
to retrieve overdue debts, if the guaranteed still fails to pay debts or fully
pay debts, the guarantee shall request the guarantor to perform guarantee
obligations as committed.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Within 60 days after
receiving a request for performance of guarantee obligations, the guarantor
shall negotiate with the guarantee on the performance or non-performance of
guarantee obligations committed in the guarantee deed and prescribed in this
Regulation.
2. If having to perform
guarantee obligations as committed, the guarantor may:
- Use the loan guarantee risk
reserve fund to perform guarantee obligations.
- Request the guaranteed to
acknowledge as compulsory debts the sum of money which the guarantor has paid
for it with an interest rate of equal to 150% of the rate for due debts
prescribed by the guarantee at the time of debt acknowledgement. The guaranteed
shall pay their compulsory debts to the guarantor.
- Further apply measures to
retrieve debts; bring the case to economic arbitration or initiate a lawsuit at
an economic court.
Article 12.
Loan guarantee risk reserve fund
1. The loan guarantee risk
reserve fund is formed from the following sources:
a/ The start-up amount of VND
200 billion allocated from the state budget.
b/ Loan guarantee charges.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d/ Proceeds from sale of assets
formed from loans.
dd/ Lawful donations (including
official development assistance) of organizations and individuals at home and
abroad for the enterprise development;
e/ Deposit interests.
2. The loan guarantee risk
reserves fund shall be used to offset guarantee risks.
3. The year-end balance of the
loan guarantee risk reserve fund may be carried forward to subsequent years for
use. In case the loan guarantee risk reserve fund is not enough to offset
guarantee risks, the Ministry of Finance shall propose the Prime Minister to
allocate additional amounts from the state budget to the fund.
4. The Ministry of Finance shall
guide the management and use of the loan guarantee risk reserve fund.
Article 13.
Capital sources and financial mechanisms
1. The Vietnam Development Bank
may use its charier capital and other lawfully mobilized capital sources to
provide guarantee; access and use technical and financial assistance from
international organizations and the Government to improve its credit guarantee
capability.
2. The Vietnam Development Bank
shall conduct separate accounting for loan guarantee activities.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1. Rights and obligations of the
guarantor:
a/ To request the guaranteed to
supply documents included in the dossier of request for guarantee and relevant
documents proving its eligibility for guarantee prescribed in Article 5 above.
b/ To appraise loan guarantee.
c/ To collect loan guarantee charges
according to regulations.
d/ To coordinate with the
guarantee in examining and supervising the process of using loans and paying
debts by the guaranteed.
dd/ To exercise its rights and
perform its obligations as committed with the guarantee and the guaranteed.
e/ To refuse to provide loan
guarantee to ineligible enterprises or enterprises that fail to meet the
conditions prescribed in Article 5 of this Regulation.
g/ To initiate a lawsuit at
court in accordance with law when the guaranteed violates the loan guarantee
contract or credit contract.
h/ To request the guaranteed and
the guarantee to supply information and make periodical or irregular reports on
the guaranteed's operations concerning loan guarantee.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
k/ To refuse to perform
guarantee obligations when the guaranteed or the guarantee commits one of the
following violations:
- Violating the loan guarantee
contract or the guarantee deed;
- The guaranteed uses the loan
for improper purposes other than those stated in the credit contract signed
with the guarantee;
- The guarantee fails to notify
the guarantor when the guaranteed suffers from business losses or is unable to
pay tax obligations to the State.
- The guarantee fails to notify
the guarantor within 7 working days after the dale when the guaranteed falls into
insolvency or fails to fully pay debts in time.
l/ To supply information and
make periodical or irregular loan guarantee reports to state management
agencies according to regulations.
2. Rights and obligations of the
guarantee:
a/ To request the guaranteed to
abide by its commitments in the credit contract and relevant current
regulations.
b/ To examine and supervise the
use of loan capital by the guaranteed so as to ensure thai loan capital shall
be used properly, safely and efficiently.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d/ To notify the guarantor when
the guaranteed violates the credit contract or relevant current regulations.
dd/ To notify the guarantor
within 7 working days from the date the guaranteed falls into insolvency or
fails to fully pay debts in time.
e/ To exercise the rights and
perform the obligations of a commercial bank towards the guaranteed in
accordance with law (adjusting the debt-payment time limit and level or
extending debts) when the guaranteed encounters temporary difficulties.
g/ To request the guarantor to
perform its commitments in the deed of loan guarantee.
h/ To coordinate with the
guarantor in performing the guarantee obligations towards the guaranteed.
i/ To supply information and
make periodical and irregular loan guarantee reports to state management
agencies according to regulations.
3. Rights and obligations of the
guaranteed:
a/ To supply adequate documents
related to loan guarantee at the request of the guarantor and the guarantee and
take responsibility for the accuracy and lawfulness of supplied information and
documents.
b/ To efficiently use loan
capital for proper purposes.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
d/ To submit to the examination
and supervision by the guarantor and guarantee.
dd/ To fully commitments in the
loan guarantee contract and credit contract.
e/ To fully pay guarantee
charges to the guarantor within the prescribed time limit.
g/ To request the guarantor and
guarantee to perform commitments in the loan guarantee contract and credit
contract.
h/ To fully pay to the guarantor
debts (principal and interest) which the guarantor has paid for it and other
expenses related to the performance of guarantee obligations by the guarantor.
i/ To supply information and
make periodical and irregular reports on the implementation of investment
projects, the production and business situation and the performance of
financial obligations towards the State and the situation of loan borrowing and
payment of debts to the guarantor, the guarantee, relevant units and management
agencies in accordance with regulations.
Article 15.
Responsibilities of concerned ministries, branches and agencies
1. The Ministry of Finance
shall:
- Assume the prime
responsibility for, and coordinate with concerned ministries and branches in,
proposing the Prime Minister to promulgate or supplement or adjust mechanisms
and policies on loan guarantee for enterprises.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
- Assume the prime
responsibility for, and coordinate with the Ministry of Planning and Investment
in, further allocating capital for the loan guarantee risk reserve fund in
accordance with the State Budget Law.
- Examine and supervise the
provision of loan guarantee by the Vietnam Development Bank.
2. The Ministry of Planning and
Investment shall coordinate with the Ministry of Finance in further allocating
capital for the loan guarantee risk reserve fund in accordance with the State
Budget Law.
3. The State Bank of Vietnam
shall:
- Guide commercial banks to
apply the interest rates for guaranteed loans which are lower than their
ordinary interest rates so as to ensure the provision of actual loan interest
incentives to enterprises;
- Coordinate with the Ministry
of Finance in promulgating documents to guide mechanisms and policies on loan
guarantee for enterprises;
- Guide commercial banks in
coordinating with the Vietnam Development Bank in implementing mechanisms and
policies on the provision of loan guarantee for enterprises.
- Examine and supervise
commercial banks in credit operations targeting enterprises so as to ensure the
effective provision of guarantee for enterprises.
Chapter
III
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
Article 16.
Ministers, heads of ministerial-level agencies, heads of government-attached
agencies, presidents of provincial-level People's Committees and the chairman
of the Management Board and the general director of the Vietnam Development
Bank shall implement this Regulation.
Article 17.
For any problems arising in the course of implementing this Regulation, the
Ministry of Finance shall sum up opinions of concerned ministries, branches and
localities thereon and propose amendments and supplementations to the Prime
Minister for consideration and decision.