MINISTRY OF FINANCE OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 01/VBHN-BTC
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Hanoi, January 5, 2023
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DECREE1
ON ON-LENDING OF THE GOVERNMENT’S ODA LOANS AND
FOREIGN CONCESSIONAL LOANS
Decree No. 97/2018/ND-CP
dated June 30, 2018 of the Government of Vietnam on on-lending of the
Government's ODA loans and foreign concessional loans, effective as of July 1,
2018, is amended by:
Decree No. 79/2021/ND-CP
dated August 16, 2021 of the Government of Vietnam on amendments to Decree No.
97/2018/ND-CP, effective as of October 1, 2021.
Pursuant to the Law on
Organizing the Government dated June 19, 2015;
Pursuant to the Law on
Public Debt Management dated November 23, 2017;
Pursuant to the Law on
State Budget dated June 25, 2015;
Pursuant to the Law on
Public Investment dated June 18, 2014;
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The Government of
Vietnam hereby promulgates the Decree on on-lending of the government's ODA
loans and foreign concessional loans.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Decree provides
regulations on managing, on-lending and recovering loans borrowed from the
government's ODA loans and foreign concessional loans.
Article 2. Regulated
entities
1. The end borrower that
borrows the Government’s ODA loans and foreign concessional loans as prescribed
in the Law on Public Debt Management.
2. The Ministry of
Finance of Vietnam and the representative agencies authorized by the Ministry
of Finance of Vietnam for on-lending the loans.
3. The agencies,
organizations and individuals related to the process of managing, on-lending
and recovering loans derived from the Government’s ODA loans and foreign
concessional loans.
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Aside from the terms
defined in the Law on Public Debt Management, the terms of this Decree are
construed as follows:
1. “Foreign loan
agreement” means a capital-borrowing agreement, contract or deal concluded on
behalf of the State or the Government with a foreign lender.
2. “On-lending agreement”
means an on-lending contract or a loan sub-agreement signed between the
Ministry of Finance or the duly-authorized intermediary and the end borrower
regarding the on-lending.
3. “On-lending
authorization contract" means a contract signed between the Ministry of
Finance of Vietnam and the duly-authorized intermediary to on-lend loans,
manage the on-lent loans and recover the debts, including the measure in term
of the duly-authorized intermediary bears all the credit risks.
4. "Grace
period" means a period of time when the end borrower already received the
loan and has not paid back the principal but has paid enough interests and
expenses as prescribed in the on-lending agreement.
Article 4. Setting a
five-year on-lending limit
1. Set a five-year
on-lending limit for the public sector entity and enterprise:
Before June 30 in the
fifth year of the five-year-plan on borrowing loans and repaying public debts
for these entities to register for the second five-year plan; the public sector
entity and the enterprise (hereinafter referred to as “End borrower” shall
submit to the Ministry of Finance the following documents:
a) An evaluation report
on the on-lending and disbursement of the loans specified in the agreement and
on the total anticipated disbursement within the current period of 5 years.
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c) A report on the
opinions of the agency in charge about the application of the project managers
requesting the disbursement for the enterprises and the public sector
entities.
2. Setting a five-year
on-lending limit for the People’s Committees of the provinces.
Setting a five-year
on-lending limit for the People’s Committee of the province is part of the plan
on borrowing loans and repaying debts within 5 years of the local government.
The process for setting an on-lending limit shall comply with the regulations
in the Decree on local government’s debt management.
3. In consideration of
indicators of public debt safety, total loan target and the local budget deficit
specified in the five year financial plan on on-lent loans granted to the
People’s Committees of the provinces, the Ministry of Finance of Vietnam shall
make a general report on the requests of the central or local departments and
agencies, set a five-year on-lending limit, and send this general report and
limit to the Government of Vietnam for the Government to forward them to the
Standing Committee of the National Assembly of Vietnam and the National
Assembly of Vietnam.
Article 5. Developing
an on-lending plan and an annual on-lending limit
1. Develop an on-lending
plan and set an annual on-lending limit for the public service provider and
enterprise:
Before July 20 every year
to develop an on-lending plan and set an annual on-lending limit; the end borrower
shall send the following documents to the Ministry of Finance of Vietnam:
a) An evaluation report
on the on-lending process, disbursement value, repayment of annual on-lent
loans and accumulation data from the time receiving the loans to the year before
the plan year; unrealized value, details of each project and each
year.
b) An anticipated report
on the value will be used in the plan year and other on-lent loans specified in
the signed agreement, and on-lent loans in the new agreement to be signed.
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a) The development of the
annual on-lending plan for the People’s Committee of the province is part of
the annual plan on borrowing loans and repaying debts of the local government.
The process of developing the plan shall comply with the regulations in the
Decree on local Government’s debt management;
b) The contents of the
annual on-lending plan for the People's Committee of the province shall include
the loans, repayments for on-lent loans and the solvency of the local
government.
3. Based on the five-year
on-lending limit, the application of the end borrowers and project managers,
and the indicators of public debt safety, the Ministry of Finance of Vietnam
shall make a specific consolidated report on the annual on-lending plan and
submit it to the Government for getting an approval for the total annual
on-lending limit, then forward this report to the Prime Minister of Vietnam for
consideration and approval for the plan of the Government of Vietnam on
borrowing loans and repaying debts.
4. If the disbursement
exceeds the annual on-lending plan, the Ministry of Finance of Vietnam shall
make a consolidated report on this case and submit this report to the
Government of Vietnam for making adjustments to the plan in order to ensure
national principles.
a) If the Government of
Vietnam on-lends the loans to public sector entities and enterprises, the
project implementation schedule shall be followed.
b) If the Government of
Vietnam on-lends the loans to the People’s Committee of the province, the
disbursement shall not exceed the annual loans which are approved by the
National Assembly of Vietnam.
Article 6. On-lending
currency and debt recovery currency
1. On-lending currency is
the currency in which the external loan is borrowed by the Government of
Vietnam.
2. Debt recovery currency
is the currency in which the on-lent capital is denominated. If the end borrower
repays the debt in Vietnam Dong, the intermediary shall apply the selling rate
of this currency set by the Joint stock Commercial Bank for Foreign Trade of
Vietnam at the time making the repayment in order to recover the debt.
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1. If the end borrower is
the People's Committee of the province, the repayment period and the grace
period shall comply with the regulations in the foreign loan agreement.
2. If the end borrower is
the public service provider or enterprise:
a) The repayment period
shall be equal to the capital recovery period under the investment project
(feasibility study report) which is approved by the competent authority, but
shall not exceed the grace period specified in the foreign loan agreement.
b) The grace period shall
be equal to the construction period, which will last until the project is put
into operation as mentioned in the investment project (feasibility study
report) approved by the competent authority, but shall not exceed the grace period
specified in the foreign loan agreement.
c) The repayment period
and the grace period of on-lent loans shall start from the beginning of
repayment period and grace period of foreign loans.
3. If there is any
difference in the repayment period and the grace period between the foreign
loans and the on-lent loans, the recovery of on-lent loans which are not paid
to the foreign lender shall be included in the Accumulation Fund for Debt
Payment.
Article 8. On-lending
interest rate
The on-lending interest rate
is specified in Clause 5, Article 34 of the Law on Public Debt Management
including the interest rate of loans borrowed from a foreign country of the
Government of Vietnam, the charges specified in the foreign loan agreement, and
the management charge of on-lent loans and loan-loss provision.
Article 9. The charges
and relevant costs collected by foreign lender and the charges for domestic and
foreign banks.
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2. The end borrower shall
pay the charges and costs to the foreign lender through the duly-authorized
intermediary, and this intermediary in turn shall pay them to the Ministry of
Finance of Vietnam. The end borrower shall pay the service charges directly to
the banks which provide service to it.
Article 10. Management
fees of on-lent loans.
1. The rate of management
fees of on-lent loans shall be 0.25% per year, to be calculated based on the
loan balance as follows:
a) The People’s Committee
of the province or city shall transfer the amount of money to the intermediary
(Ministry of Finance of Vietnam) which is equal to 0,25% per year.
b) The enterprise and
public sector entity shall pay for the duly-authorized intermediary an amount
of 0,25% per year. The duly-authorized intermediary shall be entitled to 0,15%
per year and shall transfer the payment of 0,1% per year to the Ministry of
Finance of Vietnam.
2. The management and use
of the on-lending charge shall comply with the financial mechanism of the
duly-authorized intermediary. The management and use of on-lending charges of
the Ministry of Finance shall be carried out in accordance with the regulations
of the Prime Minister of Vietnam.
Article 11. Loan loss
provision
1. The loan loss
provision shall be carried out as follows:
a) The loan loss
provision applied to the People's Committee of the province shall be equal to
0% per year per loan balance.
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c) The loan loss
provision applied to the enterprises shall be equal to 1,5% per year per loan
balance.
2. Deductions for loan
loss provision:
a) If the duly-authorized
intermediary does not bear credit risks, the loan loss provision shall be paid
to the Accumulation Fund for Debt Payment.
b) If the duly-authorized
intermediary bears all the credit risks, the loan loss provision shall be
submitted to this intermediary. The duly-authorized intermediary shall classify
debts, deduct and use the loan loss provision to handle credit risks according
to the law on credits and other relevant legal documents.
Article 12. Late
payment interest
1. If the end borrower
does not repay the principal, interests and other relevant costs on time as
prescribed by laws (if any), it shall pay for the late payment interest as
prescribed in the regulations in Clause 2, Clause 3 of this Article.
2. If the late payment
includes the principal, interests and costs specified in the foreign loan
agreement, the late payment interest rate shall be determined in accordance
with the regulations in the aforesaid agreement. If the foreign loan agreement
does not specify the late payment interest rate, this rate shall be equal to
150% of the rate which the Government repays to the foreign lender.
3. As for the management
fees of on-lent loans and loan loss provision, the late payment interest rate
shall be equal to 150% of the management fees and loan loss provision specified
in Articles 10 and 11 hereof.
4. The number of days
beyond limit shall be counted from expiration date of repayment period to the
date before the date on which the repayment is received.
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The number of days within
a year counted to determine the interests, late payment interest, charges paid
to foreign lender, management fees of on-lent loans and loan loss provision
shall comply with the regulations specified in the foreign loan agreement.
Article 14. Debt
acknowledgement
The end borrower shall
acknowledge the debts at the time the Government of Vietnam acknowledges the
debts to the foreign lender.
Article 15. Order of
priority for recovering loans
1. The end borrower shall
repay the principal, interest and charges specified in the on-lending agreement
before repaying its other debts.
2. If the end borrower
can only pay one part of its debt on the due date, the order of priority for
recovering loans shall be set as follows: management fees of on-lent loans,
loan loss provision, late payment interest, overdue debt interest, due debt
interest, other charges, overdue principal and due principal.
Article 16. Loan
security
1. The end borrower shall
use the asset-based lending method prescribed by law, except cases exempted
from collateral as prescribed in Clause 4 of this Article. The loan security
shall be specified in the on-lending agreement.
2. The collateral shall
include assets originating from the Government’s on-lent loans and/or other
legal assets of the end borrower. The collaterals shall be approved by the
Ministry of Finance of Vietnam if the Government of Vietnam bears the credit
risks or approved by the duly-authorized intermediary if this intermediary
bears the credit risks.
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4.4 No
collateral is required in any of the following cases:
a) An on-lent loan
granted to the People’s Committee of province;
b) An on-lent loans
acknowledged by a project management board affiliated to Ministry and then
transferred to the People’s Committee of province.
5. The duly-authorized
intermediary and the end borrower shall complete the procedures for providing
collateral as prescribed by the Law on secured transactions and collateral
management.
6. The handling of
collaterals for debt recovery shall be carried out in accordance with laws. If
the duly-authorized intermediary does not bear the credit risks, the handling
of guarantees for debt recovery shall be approved by the Prime Minister of
Vietnam.
Article 17. Repayment
on on-lent loans
1. The end borrower shall
allocate budget from the financial plan or budget estimates of the end borrower
in order to make full repayment on time as prescribed in the on-lending
agreement. The repayment shall not depend on the progress of implementing the
commercial contracts on on-lent loans.
2. The end borrower shall
make a repayment on on-lent loans before repaying other debts.
3.5 (annulled)
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5. Within 2 working days
from the date on which the repayment from the end borrower is received, the
intermediary or the duly-authorized intermediary shall transfer the total
repayment (principal, interest, charges, etc. ) to the Accumulation Fund for
Debt Payment after deducting the management fees of on-lent loans as prescribed
in Clause 1, Article 10, hereof. As for the banks that have policy on
authorization for on-lending multiple loans, the period making repayment to the
Ministry of Finance of Vietnam shall be carried out monthly as prescribed in
the Government's Decree on managing Accumulation Fund for Debt Payment.
Article 18.
Pre-maturity payment
1. The end borrower may
pay debt before maturity if it satisfies the requirements for pre-maturity
payment as prescribed in the foreign loan agreement and if it is approved by
the Ministry of Finance of Vietnam.
2. If there is no
regulation on pre-maturity payment in the foreign loan agreement, the end
borrower shall only make a pre-maturity payment when it is approved by the
Prime Minister of Vietnam (if the duly-authorized intermediary does not bear
the credit risks) or by the duly-authorized intermediary (if this agency bears
the credit risks).
3. The end borrower shall
send a request document to the Ministry of Finance of Vietnam and the
duly-authorized intermediary within 90 days before the repayment due date in
order to make a pre-maturity payment; the Ministry of Finance of Vietnam or the
duly-authorized intermediary shall communicate with the foreign lender and
report about this request to the competent authority for consideration and
decision-making.
4. The end borrower shall
pay all the charges and costs when making a pre-maturity payment.
Article 19. Handing
over debt obligation
1. The end borrower shall
only hand over and transfer the debt obligation incurred from on-lent loans if
it is:
a) Approved by the Prime
Minister of Vietnam when the duly-authorized intermediary does not bear the
credit risks; or
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2. When the end borrower
is requested to hand over or transfer the debt obligation, it shall report and
provide explanation about this request to the Ministry of Finance of Vietnam or
the duly-authorized intermediary and take charge to implement the
approval document from the competent authority mentioned in Clause 1 of this
Article.
Chapter II
ON-LENDING ODA LOANS AND FOREIGN
CONCESSIONAL LOANS
Article 20.
Eligibility conditions for receiving on-lent capital
The eligibility
conditions for the People's Committees of the provinces, enterprises or public
sector entities to borrow on-lent capital shall be approved in accordance with
Article 36 of the Law on Public Debt Management.
Article 21. On-lent
rate
1.6 The
on-lending rate for the People’s Committee of the province:
a) The local
government having the rate of additional funding from the central government
budget to total local government budget expenditure equaling 70% or more shall
be entitled to 10% of the on-lent capital derived from the ODA loan or
concessional loan;
b) The local
government having the rate of additional funding from the central government
budget to total local government budget expenditure from 50% to less than 70%
shall be entitled to 30% of the on-lent capital derived from the ODA loan or
concessional loan;
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d) The local
government having the rate of revenues regulated into central budget shall be
entitled to 70% of the on-lent capital derived from the ODA loan or
concessional loan;
dd) Hanoi city and Ho
Chi Minh city: shall be entitled to 100% of the on-lent capital deprived from
the ODA loan or concessional loan;
e) With regard to
programs and projects in conjunction with sustainable development adapted to
climate change in certain local areas in Mekong Delta that need the support
from the Government of Vietnam as prescribed in the Resolution No. 41/NQ-CP dated
April 1, 2021, the on-lending rate shall be decided by the Government but not
less than 10%.
2. The on-lending rate
for public service providers:
a) The public service
provider which covers full recurrent expenditures and investment expenditures
by its own budget shall be entitled to 100% of the on-lent capital derived from
the ODA loan and concessional loan used for investment project.
b) The public service
provider which covers full recurrent expenditures and partial investment
funding by its own budget shall be entitled to 50% of the on-lent capital
derived from the ODA loan and concessional loan used for investment project.
c)7 If other
on-lending rates apply to the entities prescribed in Point a, Point b Clause 2
of this Article, in the course of developing financial mechanism for ODA loans
and concessional loans, upon the proposal of the agency in charge and end
borrower, the Ministry of Finance of Vietnam shall take charge and cooperate
with the Ministry of Planning and Investment of Vietnam and relevant agencies
in seeking decision from the Government of Vietnam on the on-lending rates on a
case-by-case basis but not less than 10%.
3. The on-lending rate
for enterprises:
Enterprises are eligible
for receiving all of the on-lent capital derived from the ODA loan and
concessional loan which are used for investment project, but this amount shall
not exceed 70% of the total investment capital approved by the competent
authority.
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a) The on-lending rate
prescribed in Clauses 1, 2, 3 of this Article shall apply to the principal
repayment prescribed in the foreign loan agreement;
b) The end borrower shall
allocate from its budget to complete the repayment obligations including
commitment fees, late payment interest, pre-maturity repayment fee and other
charges incurred from the whole amount of ODA loan or concessional loan of the
Government of Vietnam which are used for project investment.
Article 22.
Identification of the intermediary
1. If the Ministry of
Finance of Vietnam on-lends directly the loans to the People's Committee of the
province, the Ministry of Finance of Vietnam is the intermediary.
2. Defining the
duly-authorized intermediary which does not bear the credit risks:
If the duly-authorized
intermediary on-lends loans to a public service provider or enterprise for
carrying out the investment project of the State’s investment plan, the
Ministry of Finance of Vietnam shall make a report based on the characteristics
of this project and send it to the Prime Minister of Vietnam for identification
of this intermediary, which is:
a) The Vietnam
Development Bank, as for the investment program or project; or
b) The Vietnam Bank for
Social Policies, as for the social agenda or project.
3. The duly-authorized
intermediary which bears the credit risks:
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b) When suggesting the
project, the agency in charge shall request the credit institution to become
the duly-authorized intermediary and bear the credit risks if this institution
agrees.
c) The credit institution
has the authority and responsibility to give opinions to the agency in charge
of the project or to the project manager during the development process or the
process of approving the pre-feasibility report or feasibility report.
d) During the process of
appraising the pre-feasibility report or feasibility report, if the credit
institution determines that the project is ineffective and refuses to
participate in this project, the agency in charge shall select another credit
institution which satisfies the conditions for becoming the duly-authorized
intermediary to bear the credit risks.
Article 23. Responsibilities
and authority of the duly-authorized intermediary
1. The duly-authorized
intermediary shall implement the regulations prescribed in Clause 1, Article 40
of the Law on Public Debt Management.
2. Aside from the
regulations prescribed in Clause 1 of this Article, the duly-authorized
intermediary bearing the credit risks shall:
a) Bear all the credit
risks and take the responsibility to repay all debts to the Ministry of Finance
of Vietnam on time and in all cases prescribed in the on-lending authorization
contract.
b) Be entitled to receive
the management fees of on-lent loans prescribed in the regulations in Article
10 hereof, and the whole loan loss provision.
c) Make decisions on the
collateral given by the end borrower.
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3.8Notwithstanding
Clause 1 of this Article, the duly-authorized intermediary not bearing the
credit risks shall have the following responsibilities:
a) Assess the
sub-loans granted to enterprises, public service providers and send the
assessment reports to the Ministry of Finance of Vietnam; the reports shall
affirm the capital recovery of the projects; capacity to repay the sub-loans of
the enterprises, public service providers;
b) Manage the
on-lending process and collection of sub-loans, ensure all the loans are repaid
in full and when they come due to the Ministry of Finance of Vietnam according
to the assessment reports and on-lending authorization contracts.
c) Assess the loan
security plan; register, manage and realize the collateral and other assets
pledged by the end borrower as the security for the sub-loan as prescribed in
the law on collateral;
d) Inspect the use of
sub-loans by the end borrower through examining the sub-loan disbursement
documents, except for those controlled by the State Treasury;
dd) Supervise the
sub-loan, financial position of the end borrower, the existing operation of the
project invested by the sub-loan; carry out periodic or ad-hoc inspection of
the sub-loan, the end borrower and send a report to the Ministry of Finance of
Vietnam;
e) Assess the sub-loan
settlement plan (if any) of the end borrower and the report on the assessment
of sub-loan settlement plan, clearly state the appropriateness or
non-appropriateness of the sub-loan settlement plan and send it to the Ministry
of Finance of Vietnam for seeking a decision from the competent authority.
Article 24. On-lending
appraisal agency
1. The Ministry of
Finance of Vietnam is the agency which appraises the eligibility conditions for
receiving on-lent loans of the People's Committees of provinces.
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Article 25. Matters to
be appraised
1. The on-lending
appraisal of the People’s Committee of the province shall be carried out in
accordance with Clause 1, Article 38 of the Law on Public Debt Management; this
appraisal is carried out to evaluate the ability to satisfy the eligibility
conditions for on-lent loans as prescribed in Clause 1, Article 36 of the Law
on Public Debt Management.
2. The on-lending
appraisal of public sector entities or enterprises shall be carried out in
accordance with Clause 2, Article 38 of the Law on Public Debt; this appraisal
is carried out to evaluate:
a) The legal identity and
the ability to satisfy the eligibility conditions for on-lent loans as
prescribed in Article 36 of the Law on Public Debt Management.
b) The financial capacity
and the debt situation of the end borrower.
c) The feasibility of the
plan on using capital loan and repaying debts, and the plan on giving the
collaterals.
d) The risks and the
feasibility of the measures which are adopted to prevent and manage risks and
are specified in the repayment plan of the end borrower.
Article 26. On-lending
appraisal process
1. After the investment
project (feasibility study report) gets approved by the competent authority,
the authorized representative of the end borrower shall send an official
dispatch to request for the on-lending appraisal, enclosed with the appraisal
documents specified in Article 27 hereof to the appraisal agency and the
Ministry of Finance of Vietnam. The person who makes the decision to invest in
the project which receives on-lent loans derived from the ODA loan or
concessional loan shall ensure that the repayment for the capital loan has high
feasibility and legal basis.
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3. If the Ministry of
Finance of Vietnam authorizes the duly-authorized intermediary, within 30
working days from the date on which the completed documents are received, the
appraisal agency shall send the appraisal report to the Ministry of Finance of
Vietnam. Within 15 working days from the date on which the completed documents
are received, the Ministry of Finance of Vietnam shall report the appraisal
result to the Ministry of Finance of Vietnam based on the appraisal report of
the duly-authorized intermediary.
4. If the eligibility
conditions for on-lent loans are satisfied by the end borrower, the Ministry of
Finance of Vietnam shall report this result to the Ministry of Finance for
approval for the on-lending; if the conditions are not satisfied, the Ministry
of Finance shall report this result to the Prime Minister of Vietnam for him to
refuse to sign the foreign loan agreement.
5. According to the
on-lending approval decision of the Prime Minister of Vietnam, the Ministry of
Finance of Vietnam shall negotiate and sign the loan agreement in accordance
with the current regulations of the law on managing ODA loan capital and
foreign concessional loan.
6. The appraisal agency
shall take full responsibility for the on-lending appraisal result. The end
borrower shall take full responsibility for the references and data specified
in the application documents.
Article 27.
Application for appraisal
1. The application
documents for appraisal of the solvency of the local budget shall consist
of:
a) A written consent of
the Provincial People's Council or the Standing committee of People's Council
to the mobilization of capital for investment or contribution of investment
capital in a public-private partnership project under the Government's plan to
on-lend of the Government’s foreign capital and sources of funding for repaying
debt.
b) A document proposing
the approval for the policy of investment; Investment Decision, investment
project document (or feasibility study report) which are approved by the
competent authority and include the plan on using on-lent capital.
c) A report on the status
of lending and repayment of the locality at the time of the loan proposal,
including details of all occurred loans and outstanding loans; report on the
loan balance of the local budget last year and estimate the current loan
balance of the current year; the percentage of debt repayment on the local
budget revenue is allocated according to decentralization in the last three
years.
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dd) Other relevant
documents supporting the province’s solvency (if any).
2. The application
documents of the enterprises and public sector entities shall consist of:
a) A document proposing
the approval for the policy of investment;
b) Investment project
(feasibility study report) approved by the competent authority and enclosed
with the Approval Decision for the investment project.
c) The plan on using
capital loan and paying debt; The plan on owner’s equity (for enterprises),
counterpart funds; the plan on giving collaterals and relevant documents
of this plan; the management plan and the plan on handling collaterals; a
document providing explanation about the revenues – expenditures of the project
which is approved by the investor.
d) An annual audited
financial statement of the last 03 years to the date on which the appraisal
application and the report on the status of lending, repayment and outstanding
loans of the end borrower.
Article 28. Signing
the on-lending agreement, on-lending authorization contract
1. After the foreign loan
agreement is signed, within 30 working days, the Ministry of Finance of Vietnam
shall rely on the decision on approving the on-lent capital borrowed from the
ODA funds or concessional loans to sign:
a) The on-lending
agreement with the People’s Committee of the province, using the form in
Appendix I enclosed hereof; or
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c) The on-lending
authorization contract with the duly-authorized intermediary which bears the
credit risks, using the form in Appendix III enclosed hereof.
2. Within 30 working days
from the date on which the on-lending authorization contract is signed, the
duly-authorized intermediary shall sign an on-lending agreement with the end
borrower in order to manage the process of on-lending and recovering debts.
Chapter III
MANAGEMENT OF ON-LENT LOANS
Article 29. Management
of the use of on-lent capital
1. The end borrower shall
take full responsibility to use the capital loan effectively and with right
purposes according to the approval decision on policy of investment, the
investment decision of the competent authority, the approved project document,
the signed on-lending agreement.
2. The duly-authorized
intermediary shall take full responsibility to examine the use of on-lent loans
by the end borrower by evaluating the document on disbursements for on-lent
loans, except the cases where the disbursements are controlled by the State
Treasury. The end borrower shall take full responsibility for providing valid
and authentic documents for the duly-authorized intermediary. In case of need,
the duly-authorized intermediary shall have the authority to request the end
borrower to report to it about the use of capital loan and to prove that this
loan is used with right purposes.
3. According to the
disbursement announcement of the foreign lender and the announcement of the
Ministry of Finance of Vietnam, the intermediary and the duly-authorized
intermediary shall record a debit and submit a periodic report on debt data to
compare with the end borrower’s report.
4. The end borrower shall
take charge to implement the measures for managing on-lent loans, purchase
trade credit insurance and exchange rate risk insurance as prescribed by laws
in order to reduce the credit risks and the exchange rate risks.
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1. The end borrower shall
pay off debts in full to the Ministry of Finance of Vietnam on time according
to the on-lending agreement (if this Ministry on-lends loans to the People’s
Committee of province) or to the duly-authorized intermediary in order for
these agencies to pay off the debt recovery in full and on time to the
Accumulation Fund for Debt Payment.
2. If the duly-authorized
intermediary bears the credit risks, this agency shall urge and collect debts
in order to make full repayment to the Ministry of Finance of Vietnam on time
and in accordance with the authorized on-lending contract.
3. Quarterly, the
duly-authorized intermediary shall compare the debt data including the
withdrawal amount, repayment amount and outstanding loans with the end
borrower’s data.
4. No later than 60 days
from the last day of the previous year, the duly-authorized intermediary shall
make an annual report on the debt situations of all the on-lent loans managed
by it, compare this report with the report from the Ministry of Finance of
Vietnam including the total number of on-lending projects, disbursements,
repayments and outstanding loans on the case-by-case basis.
Article 31. Management
of collaterals
1.9 Within 30
days from the date on which the on-lending agreement is signed with the public
sector entity or enterprise, the end borrower and the duly-authorized
intermediary shall send a copy of the loan security contract to the Ministry of
Finance of Vietnam.
2. Within 30 days from
the date on which the loan security contract is signed, according to the law on
secured transactions, the end borrower shall apply for the loan security to
guarantee for the on-lent loans.
3. The parties related to
the collateral shall be responsible to comply with the regulations on
collaterals. The collateral shall be managed and used with right purposes. The
handing over and transferring of collateral shall be approved by the Prime
Minister of Vietnam if the duly-authorized intermediary does not bear the
credit risks, or by the duly-authorized intermediary if this agency bears the
credit risks.
4. The loan security
contract shall end only if the end borrower completes all the debt obligations
in accordance with the on-lending agreement.
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6. The duly-authorized
intermediary shall manage and supervise the process of using the collateral;
shall have the authority to hire an independent organization to appraise,
evaluate, and supervise the collateral if being required to take compulsory
measures as prescribed by laws and shall handle the collateral. The end
borrower shall be responsible for paying all these charges.
Article 32. Reporting
the status of on-lending and financial situation of the end borrower
1. 10The end
borrower which is the People’s Committee of the province shall send reports on
on-lending situation to the Ministry of Finance of Vietnam, the end borrower
which is a public sector entity or an enterprise shall send reports to the
duly-authorized intermediary twice a year, the first report shall be sent no
later than July 31 of the year for the reporting period from January 1 to June
30, and then second report shall be sent no later than February 15 of the
following year for the reporting period from July 1 to December 31, including:
a) Loan drawdown,
repayment, outstanding amount of the sub-loan;
b) Fluctuations to the
collateral;
c) Financial
positions, debts of the end borrower, including debt balance, past due loans
(if any) to any creditor;
d) Existing operation
of the projects, management and use of assets of the projects and assets formed
by borrowed capital.
2.11The
duly-authorized intermediary shall send reports with the contents specified in
clause 1 of this Article to the Ministry of Finance of Vietnam twice a year,
the first report shall be sent no later than August 31 of the year for the
reporting period from January 1 to June 30 and the second report shall not sent
no later than February 28 of the following year for the reporting period from
July 1 to December 31 of the reporting year or report to it immediately if any
problem occurs and affects the solvency of each on-lending project or end
borrower.
3. Every year, the
Ministry of Finance of Vietnam shall mention about the status of on-lending in
the general report on public debt management.
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Article 33. Evaluation
and supervision
1. The on-lending which
complies with the regulations hereof shall be evaluated by the competent
regulatory agencies as prescribed by laws.
2. The duly-authorized
intermediary shall manage and supervise the on-lent loans, end borrower, the
on-lending process, debt recovery process, fluctuations of the collaterals,
development process, construction work process which is invested by using
periodic on-lent loans, and shall carry out inspection for the end borrower and
report this result to the Ministry of Finance of Vietnam.
3. The Ministry of
Finance of Vietnam shall supervise the on-lending through the duly-authorized
intermediary. According to the annual or sudden inspection plan, the Ministry
of Finance of Vietnam shall carry out inspection for the duly-authorized
intermediary and the end borrower.
4. During the inspection
and supervision processes, if the end borrower does not comply with the
commitment or obligations mentioned in the on-lending agreement, the
duly-authorized intermediary or the Ministry of Finance of Vietnam shall handle
this case in accordance with its authority. If the case is beyond its
competence, the Ministry of Finance of Vietnam shall report this problem to the
Prime Minister of Vietnam for him to decide the handling measures.
Chapter IV
DEBT CLASSIFICATION, RISK MANAGEMENT AND
HANDLING OF ON-LENT LOANS
Article 34. Debt
classification
1. The on-lent loans
given to the public sector entities or enterprises shall be classified
periodically by the duly-authorized intermediary and shall also be included in
the debt classification table of the public debt management program, which is
created based on the end borrower’s status of fulfilling debt obligations.
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b) Group 2: The debt is
overdue for 1 period;
c) Group 3: The debt is
overdue for 2 or 3 periods;
d) Group 4: The debt is
overdue for 4 periods or above;
dd) Group 5: The debt
cannot be repaid.
2. The duly-authorized
intermediary shall annually report about the debt classification process
managed by it to the Ministry of Finance of Vietnam for this Ministry to make a
final report on the debt classification of on-lent loan portfolio.
3. The debt
classification is not applicable to on-lent loans given to the People’s
Committees of provinces.
4. The debt
classification applied to on-lent loans when the intermediary bears the credit
risks shall be carried out in accordance with the regulations of the State bank
of Vietnam on classifying the assets, loan loss provision amounts and methods
and the use of loan loss provision for handling risks during the operation
process of the credit institution.
Article 35. Risk
management
1. The Ministry of
Finance of Vietnam shall apply the professional risk management based on the
debt classification as follows:
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b)12 If two or
three loan installments are missed: Where the end borrower is an enterprise
granted the sub-loan by the duly-authorized intermediary in which the
intermediary bears the credit risks, at least 15 days before the subsequent
loan installment, it shall at least maintain account balance as follows:
- Three subsequent loan
installments if two loan installments are missed;
- Three subsequent
loan installments if three loan installments are missed.
c) As for the debt which
is overdue for 3 periods or above: The intermediary shall be authorized by the
end borrower to request the borrower’s banks to deduct money from its account
for repaying debts as prescribed in Clause 5, Article 17 hereof.
d) If the borrower cannot
repay the debt: It shall implement the handling measures which are approved by
the Prime Minister of Vietnam including handling collateral to recover debt.
2. The risk handling
shall comply with the laws in reducing maximum risk for the State; the
intermediary and the end borrower shall take responsibility for revoking and
handling debts.
Article 36. Extending
repayment period
1. If the end borrower
has temporary difficulty in keeping up with the rate of the project's process,
earning enough revenues to repay debts, and making repayment on time although
it already applied remedial measures due to objective factors, natural
disasters, enemy-inflicted devastation, changing of policy, economic background
which causes a negative effect to the project.
a) The Minister of
Finance of Vietnam shall consider and extend the repayment period and grace
period of the on-lent loans, but these periods shall not exceed the repayment
period of the foreign loans.
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2. At the request of the
end borrower and the agency in charge of the end borrower, and according to the
appraisal report on the solvency of the end borrower which is made based on the
plan on extending repayment period and grace period of the duly-authorized
intermediary, the consideration and decision for approving the extended period,
repayment period and grace period shall be made.
3. In order to appraise
the solvency based on the plan on extending repayment period and grace period,
the end borrower shall submit the following documents to the duly-authorized
intermediary:
a) The plan on extending
repayment period.
b) An audited financial
report of the last 3 years of the end borrower.
c) A report on the
opinions of the agency in charge and the related agency on the reasons for
having financial difficulties in repaying debt.
4. The credit institution
shall consider extending the repayment period for the on-lent loans which are
given when the intermediary bears the credit risks. In this case, the credit
institution shall take full responsibility in repaying the capital loan to the
Ministry of Finance of Vietnam in accordance with the on-lending authorization
contract.
Article 37. Charging
off debt
1. The on-lent loans
given to a public sector entity or enterprise shall be charged off when the end
borrower has difficulty for a long time in making repayment due to objective
factors, natural disasters, enemy-inflicted devastation, changing in policy,
economic background that causes a negative effect to the project leading to a
financial loss in 3 consecutive years or more until the deadline date of the
repayment making it difficult to repay other lenders, difficulty in ensuring
working capital to complete the obligations to the employees although the
public sector entity or enterprise already applied remedial measures, however,
it still cannot repay debts, when the end borrower has a scheme for finance
restructuring which is approved by the competent authority based on the policy
of investment.
2. The charge-off period
shall not exceed 5 years.
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4. For the
duly-authorized intermediary to appraise the solvency of the end borrower based
on the charge-off plan, the aforesaid borrower shall submit:
a) A plan on making
repayment after the period of charging off debt and/or budget expires.
b) An annual audited
financial report of the last 3 years of the end borrower.
c) A report on the
opinions of the agency in charge and the related agency on the reasons why the
project has difficulties and has debts occurred and cannot make repayment.
d) A scheme for finance
restructuring of the end borrower which is approved by the competent authority
based on the policy of investment.
5. The Ministry of
Finance of Vietnam shall forward the report on appraising the charge-off plan
and the request from the duly-authorized intermediary to the Ministry of
Finance of Vietnam for him to consider and make decision to charge off the
on-lent loans.
6. If the on-lent loans
are charged off by a credit institution which bears the credit risks, this
institution shall repay the capital loan to the Ministry of Finance of Vietnam
according to the on-lending authorization contract.
Article 38. Partial
debt write-off
1. The partial debt
write-off for interest, late payment interest and a partial on-lent capital
shall be considered when the end borrower is a public sector entity or enterprise
that has difficulty for a long time in making repayment due to objective
factors, natural disasters, enemy-inflicted devastation, changing in policy,
economic background that causes a negative effect to the project leading to a
financial loss in 5 consecutive years or more until the deadline date of
repayment making it difficult to repay other lenders, difficulty in ensuring
working capital to complete the obligations to the employees although the
public sector entity or enterprise already applied remedial measures, however,
it still cannot repay debts, when at least one lender agrees to the principle
on restructuring the debt; when the end borrower has a scheme for finance
restructuring which is approved by the competent authority based on the policy
of investment.
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a) A plan on making
repayment after the period of charging off debt and/or budget expires.
b) An annual audited
financial report of the last 5 years of the end borrower.
c) A report on the
opinions of the agency in charge and the related agency on the reasons why the
project has difficulties and has debts occurred and cannot make repayment.
d) A report on the
opinions of at least one lender who agrees to the principle on restructuring
another relevant debt for the end borrower.
dd) A scheme on finance
restructuring of the end borrower which is approved by the competent authority
based on the policy of investment, applicable to the project using on-lent
capital.
3. The Ministry of
Finance of Vietnam shall forward the report on appraising the plan on writing
off partial debt and the request from the duly-authorized intermediary to the
Prime Minister of Vietnam for him to consider and make decision to write off
partial debt of the on-lent loan.
4. The debt write off for
the on-lent loan carried out in accordance with the measure in which the
intermediary bears the credit risks shall be decided by the credit institution.
In this case, the credit institution shall take full responsibility in repaying
the capital loan to the Ministry of Finance of Vietnam in accordance with the
on-lending authorization contract.
Article 39. Writing
off full debts if the end borrower is an enterprise
1. If the end borrower is
an enterprise that has been dissolved or has declared bankruptcy in accordance
with the competent authority's decision, the debt recovery shall be carried out
in accordance with the law on dissolution and bankruptcy.
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Article 40. Budget for
settling debts
1. The end borrower shall
repay debt to the Ministry of Finance of Vietnam by sending money to the
Accumulation Fund for Debt Payment, and use this fund as a source to repay
foreign debt. The Ministry of Finance of Vietnam shall repay debt in accordance
with the regulations in the foreign loan agreement.
2. If the Ministry of
Finance of Vietnam extends repayment period, charges off debt and writes off
debt in accordance with the decisions of the competent authority, it shall use
the Accumulation Fund for Debt Payment to handle these cases.
Chapter V
IMPLEMENTATION PROVISIONS13
Article 41. Entry into
force
1. This Decree comes into
force as of July 1, 2018. This Decree replaces Decree No. 78/2010/ND-CP dated
July 14, 2010 and Decree No. 52/2017/ND-CP dated April 28, 2017.
2. The finance mechanism,
the eligibility conditions for on-lent loans of the programs or projects which
are approved by the Prime Minister of Vietnam; the authorization contract and
the on-lending agreement which had been signed before this Decree came into
force shall continue to be implemented. If the specific eligibility conditions
are not approved or changed by the Prime Minister of Vietnam, the Ministry of
Finance of Vietnam shall report this case to the Prime Minister of Vietnam
before negotiation.
Article 42.
Implementation responsibilities
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VERIFICATION OF INTEGRATED DOCUMENT
PP. MINISTER
DEPUTY MINISTER
Vo Thanh Hung
APPENDIX I
ON-LENDING AGREEMENT FOR THE PEOPLE’S COMMITTEE OF PROVINCE
OR CENTRALLY AFFILIATED CITY
(Enclosed with the Government’s Decree
No. 97/2018/ND-CP dated June 30, 2018)
SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
---------------
Hanoi, date
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Pursuant to the Law on
Public Debt Management dated November 23, 2017;
Pursuant to the Law on
State Budget dated June 25, 2015;
Pursuant to Decree No.
97/2018/ND-CP dated June 30, 2018 of the Government of Vietnam on on-lending of
the Government's ODA loans and foreign concessional loans;
Pursuant to the Foreign
Loan Agreement No. .......... signed on............
month..........year.......... (hereinafter referred to as “Foreign Loan
Agreement”) between the Government/State of Socialist Republic of Vietnam
(hereinafter referred to as “Vietnam”) and (name of the foreign lender) for
investing in the project (name of the Project) (hereinafter referred to as
“Project”);
Pursuant to the Decision
No. …./QD-TTg dated …………. of the Prime Minister of Vietnam (on approving the
policy of investment and the financial mechanism of the project);
Pursuant to the Decision
No. ……/QD-UBND dated ……….of the Chairperson of the People’s Committee of
province/city (on approving the Project);
Pursuant to other
relevant documents.
The intermediary and
the end borrower are:
1. The intermediary is:
The Ministry of Finance of Vietnam which is represented by the Department of
Debt Management and External Finance.
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Tel:
………………………………………………………………………………………
Fax No.
………………………………………………………………………………………………
And:
…………………………………………………………………………………………………..
2. The end borrower is:
People’s Committee of province/city: …………………………………
Address:
……………………………………………………………………………………………..
Tel:
………………………………………………………………………………………
Fax No.
………………………………………………………………………………………………
Agreed to sign this
On-lending Agreement on terms and conditions set forth below:
Article 1. Definitions
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Article 2. The terms
and conditions of the On-lending Agreement
1. Terms and conditions
for on-lending loans:
The intermediary on-lends
a partial foreign loan/whole foreign loan in accordance with the Foreign Loan
Agreement to the end borrower on the following conditions:
a) The on-lending
currency and the debt recovery currency are: ……………………………………………..
b) The on-lending value
is the total withdrawal capital which does not exceed………………………………..
c) The on-lending
term:……includes the grace period……….from the day.........................
d) On-lending interest
rate: … % per year based on the outstanding debts, including:
- External loan interest
rate: .............% per year based on the outstanding debts.
- Management fees of
on-lent loans are 0,25% per year based on the outstanding debts.
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dd) Late payment
interest: If the end borrower cannot make repayment on principal, interest,
fees and other relevant charges on time, it shall pay for the late payment
interest which is equal to late payment interest rate specified in the Foreign
Loan Agreement. If the Foreign Loan Agreement does not specify the late payment
interest rate, this rate shall be determined as 150% of the on-lending interest
rate specified in the Foreign Loan Agreement, applicable to the days overdue.
e) Interest and late
payment interest shall be determined based on the actual number of days within
a year which is ....days (according to the regulations in the Foreign Loan
Agreement).
g) The repayment date is
set based on the repayment date specified in the Foreign Loan Agreement.
h) If Vietnam is
responsible for implementing the provisions for quick repayment which are
specified in the Foreign Loan Agreement, the terms and conditions specified in
point c and d of this clause shall be adjusted accordingly.
i) The end borrower may
repay the debt early if it satisfies the conditions for pre-maturity payment
which are specified in the Foreign Loan Agreement, and the pre-maturity payment
shall be approved by the foreign lender. If the end borrower does not satisfy
the conditions for pre-maturity payment which are specified in the Foreign Loan
Agreement, it can only repay debt early if it is approved by the Prime Minister
of Vietnam. The end borrower shall pay all charges and costs related to the
pre-maturity payment. The end borrower shall submit the application for
pre-maturity payment to the intermediary within 90 days before the expected due
date of the payment.
k) The end borrower shall
make direct payments for the charges collected by domestic banks.
l) The repayment on loans
derived from ODA loans or concessional loans shall be made on time by the end
borrower before it pays its other debts.
m) If the end borrower is
only able to pay part of its due liabilities, the order of priority for debt
reduction is as follows: management fees of on-lent loans, late payment
interest, overdue debt interest, due debt interest, other charges, overdue
principal and due principal.
n) The end borrower may
use foreign currency to make repayment if it receives the revenues from the
project in foreign currency or if it buys the foreign currency from the
domestic commercial banks. If the end borrower repays the debt in Vietnam
Dong, the exchange rate is the selling rate of this on-lending currency set by
the Joint stock Commercial Bank for Foreign Trade of Vietnam at the time making
repayment.
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The end borrower shall
determine and pay off the principal, interest and charges of the on-lent loans
in full and on time (if any) for the Ministry of Finance of Vietnam using the
following account number:
- Name of the account:
Department of Debt Management and External Finance (RECOVERING ON-LENT LOANS IN
USD)
Account code:
xxxx.x.xxxxxxx.xxxxx (if making repayment in USD); or
- Name of the account:
DEPARTMENT OF DEBT MANAGEMENT AND EXTERNAL FINANCE (COLLECTING ON-LENT LOANS IN
VND)
Account code:
xxxx.x.xxxxxxx.xxxxx (if making repayment in VND).
- At Vietnam State Treasury;
or
Another account specified
in the written announcement of the Ministry of Finance of Vietnam.
2. The time of
acknowledging debts:
The end borrower shall
acknowledge the debts at the time the Government of Vietnam acknowledges the
debts to the foreign lender.
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The intermediary shall
complete the procedures for recording a debit for the end borrower according to
the disbursement announcement of the foreign lender.
Quarterly, the
intermediary shall compare the debt data including the withdrawal amount,
repayment amount and amount of outstanding loans with the end borrower.
Article 3.
Responsibilities of both parties
1. Responsibilities of
the end borrower:
a) The end borrower shall
cooperate closely with the intermediary in carrying out its obligations as
prescribed in this On-lending Agreement and in the regulations on
responsibilities of the end borrower which are specified in the Government’s
Decree No. 97/2018/ND-CP dated June 30, 2018.
b) The end borrower shall
allocate principals from the local budget and/or other lawful capital sources
as prescribed by laws to pay off the debts of on-lent loans (principal,
interest, charges) in full and on time.
c) The obligation to pay
the signed on-lent loans shall be fully calculated when making annual budget
estimates and local budget’s medium-term financial plans.
d) The end borrower shall
assign the Department of Finance of province/city to:
- Cooperate closely with
the unit assigned to be the project manager, evaluate the capital management process
of the Project, build a database on the provincial debt status, ensure that the
on-lending is appropriate to the loan limit, and monitor and plan the repayment
when it is due.
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2. Responsibilities of
the project manager:
Quarterly and at least 15
days before the start of the repayment period prescribed in Point g, Clause 2,
Article 2 hereof, the unit assigned to be the project manager by the end
borrower shall make a report on the process and disbursement amount of the
project and send it to both the Department of Finance and the end borrower in
order for the Department of Finance in the province/city ............. to
determine the required interest, charges and principal which are allocated from
the provincial budget to pay off debts for the intermediary.
3. Responsibilities of
the intermediary:
The intermediary shall
guarantee that it will take the responsibility specified in this On-lending
Agreement and in the regulations on on-lending of the Government's ODA loans
and concessional loans for the People’s Committees of the provinces.
Article 4.
Compensation and repayment
1. If the end borrower
cannot fulfill its obligations in accordance with this On-lending Agreement,
the intermediary may, at its sole discretion, to request the end borrower to
comply with the regulations on sanctions and compensations; such actions shall include
stopping the disbursements of foreign loans for the Project, stopping the
disbursements for other projects which receive loans from the central budget
and use these loans with right purposes or on-lend them to the budget of
province/city, and stop considering the on-lent loans derived from other
external loans.
2. None of regulations in
the On-lending Agreement which harm or affect the rights of the Ministry of
Finance of Vietnam including the right to compensation as prescribed by laws.
3. If the Vietnam’s
rights to loan disbursement which are prescribed in the Foreign Loan Agreement
are now suspended or terminated due to any cause, the disbursement of on-lent
loans which is prescribed in this On-lending Agreement shall be suspended or
terminated immediately. The end borrower shall fulfill all obligations
prescribed in this On-lending Agreement for the disbursed on-lent loans which
are derived from external loans.
Article 5.
Implementation provisions
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2. This On-lending
Agreement shall be binding upon the organizations that succeed the People's
Committee of the province/city in any form.
3. During the
implementation process, both parties shall consider to supplement or amend this
On-lending Agreement based on the actual situation or if it is necessary. All
amended or added contents of this On-lending Agreement shall be made in writing
and signed by both parties and be an integral part of this On-lending
Agreement.
4. The On-lending
Agreement shall be made into 2 original documents and both documents shall have
similar legal validity. The intermediary shall keep 1 original and the end
borrower shall keep 1 original.
This On-lending Agreement
shall be signed at ………… on the mentioned date above, through the authorized
representative of each party.
PEOPLE’S
COMMITTEE OF THE PROVINCE/CITY……..
Authorized representative
Ministry of
Finance of Vietnam
Authorized representative
APPENDIX II
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
---------------
Hanoi, date
ON-LENDING AUTHORIZATION CONTRACT IN TERM OF THE
INTERMEDIARY NOT BEARING THE CREDIT RISKS
The loan is derived from ..... for the Project (Name
of the project)
No.:…../ /UQCVL/BTC-QLN
Pursuant to the Law on
Civil Code dated December 8, 2015;
Pursuant to the Law on
Public Debt Management dated November 23, 2017;
Pursuant to Decree No.
97/2018/ND-CP dated June 30, 2018 of the Government of Vietnam on on-lending of
the Government's ODA loans and foreign concessional loans;
Pursuant to the Foreign
Loan Agreement signed on day ……month……year between the State/Government of
Socialist Republic of Vietnam and (name of the foreign lender) (hereinafter
referred to as “Foreign Loan Agreement”) for the Project…. (hereinafter
referred to as “Project”);
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Pursuant to the Decision
on approving the Project No. ....., date;
Ministry of Finance of
Vietnam (hereinafter referred to as “Principal”), represented by the Department
of Debt Management and External Finance.
Headquarters: 28 Tran
Hung Dao - Hanoi
Tel: 024-22202828
Fax No. 024-22208020 or
024-22202868 and
Name of the Credit
Institution which is intermediary (hereinafter referred to as “Authorized
Party")
Headquarters:
……………………………………………………………………………………
Tel:
………………………………………………………………………………………..
Fax:
……………………………………………………………………………………………….
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Article 1. The Principal shall authorize the Authorized Party to
on-lend the Government’s loans prescribed in the Foreign Loan Agreement to ………
(name of the end borrower) and/or any party that inherits all of rights and
obligations of (name of the end borrower) under any form (hereinafter referred
to as “end borrower) of the Project, with the following conditions:
1. The on-lending
currency:
2. The on-lending value
is the total withdrawal capital which does not exceed……………..
3. The on-lending
term:……includes the grace period……….from the day.........................
4. Interests of on-lent
loans are …% per year based on the outstanding debts including:
a) External loan interest
rate: .............% per year based on the outstanding debts.
b) Management fees of
on-lent loans are 0,25% per year based on the outstanding debts.
c) The loan loss
provision for on-lending is ......% per year based on the outstanding
debts.
d) The charges paid to
the foreign lender as prescribed in the Foreign Loan Agreement.
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6. The repayment date
shall be set based on the repayment date specified in the Foreign Loan
Agreement.
7. The end borrower shall
take full responsibility for paying all charges and relevant costs that the
Government of Vietnam must pay to the foreign lender as prescribed in the
Foreign Loan Agreement, including…….., and other charges and costs. The
end borrower shall pay off these charges to the Authorized Party and this Party
shall pay them for the Principal.
8. The date of debt
acknowledgement is the date on which the Government of Vietnam acknowledges
debt with the foreign lender as prescribed in the Foreign Loan Agreement.
9. Repayment date: the
end borrower shall pay off the principal and interest for the Authorized Party
once every six months, on......and on.......every year (as prescribed in the
Foreign Loan Agreement). The semi-annual principal repayment shall be
made consecutively, starts from ........ends on............... The interest
shall be determined from the first day of the repayment period when the
outstanding loan occurs.
10. The end borrower
shall make a pre-maturity payment after sending a written notification to the
Authorized Party and the Principal within 90 days before the date on which the
pre-maturity payment is made, and after getting an approval from the Prime
Minister for the conditions specified in the Government’s Decree No.
97/2018/ND-CP dated June 30, 2018.
11. If the end borrower
repays the debt in Vietnam Dong, the exchange rate shall be the transferred
selling rate of this on-lending currency set by the Joint stock Commercial Bank
for Foreign Trade of Vietnam at the time making the repayment.
12. The end borrower
shall make direct payments for the charges collected by domestic banks.
13. The end borrower
shall repay all of its debt obligations specified in this Agreement and in the
On-lending Agreement before repaying any of its other debts.
14. The end borrower
shall provide their collateral including assets originating from the on-lent
loans and other legal assets which are approved by the Authorized Party and the
Principal as prescribed in the Government's Decree No. 97/2018/ND-CP dated June
30, 2018. The regulations on collateral shall be specified in the On-lending
Agreement and shall comply with the relevant provisions in the Decree.
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Article 2. Responsibilities of the Principal
1. The Principal shall
send the notifications of the disbursement of on-lent loans and the arising
charges which are prescribed in the Foreign Loan Agreement to the Authorized
Party, and this Party shall make an announcement on the debts of on-lent loans
acknowledged with the end borrower.
2. The Principal may take
charge or cooperate with the Authorized Party to inspect and supervise the use
of and repayment on on-lent loans of the end borrower periodically or when it
is necessary.
Article 3. Responsibilities of the Authorized Party14
The Authorized Party
shall comply with the regulations on responsibilities of the authorized
duly-authorized intermediary as prescribed in the Law on Public Debt Management
and the Government’s Decree No. 97/2018/ND-CP dated June 30, 2018 on on-lending
of the Government's ODA loans and foreign concessional loans, clause 5 Article
1 of the Government’s Decree No. 79/2021/ND-CP dated August 16, 2021 on
amendments to the Government’s Decree No. 97/2018/ND-CP dated June 30, 2018 and
certain responsibilities as follows:
1. Within 30 working
days from the date on which this Contract and/or the On-Lending Agreement is
signed in accordance with the conditions prescribed in Article 1. Within 15
days after signing the On-lending Agreement with the end borrower, the
Authorized Party shall send 01 copy of this Agreement to the Principal for
cooperation in supervising the process.
2. The Authorized
Party shall rely on the notice of loan withdrawal sent by the Principal to
announce and acknowledge debts with the end borrower.
3. The Authorized
Party shall recover and repay debts to the Principal within the period of time
specified by the Government of Vietnam from the date on which the Authorized
Party receives the principal, interest, charges of foreign loans and the
charges required to be collected and specified in Article 1 from the end
borrower, and after it being entitled to the management fees of sub-loans which
are specified in the Government's Decree No. 97/2018/ND-CP dated June 30, 3018.
4. The Authorized
Party shall do the debt reconciliation with the end borrower quarterly,
including the disbursement amount, amount of acknowledged debt, repayment
amount, and amount of outstanding loans in a period and the cumulative
outstanding loans.
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6. Once a year, at the
time of formulating the state budget estimates, the Authorized Party shall
aggregate borrowing and repayment plans of end borrowers for the Principal to
include them in an annual plan for on-lending, repayment, and sub-loan limits
of the Government of Vietnam.
Article 4. Implementation provision
1. This contract shall be
made into 2 original documents, the Principal shall keep 1 original, the
Authorized Party shall keep 1 original; this contract shall come into force
from the date on which it is signed (or the date on which the Foreign Loan
Agreement comes into effect based on the regulations in the Foreign Loan
Agreement or the Decision of the Prime Minister of Vietnam).
2. The Principal and the
Authorized Party shall implement the above regulations. Any amendment (if any)
made to this contract shall be included in the Appendix document and shall
comply with the laws.
The On-lending
Authorization Contract is signed on the date mentioned above, at..........by
the authorized representative of each Party.
Representative
of the Principal
Representative of Authorized Party
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ON-LENDING AUTHORIZATION CONTRACT IN TERM OF THE
INTERMEDIARY BEARING THE CREDIT RISKS
(Enclosed with the Government’s Decree No.
97/2018/ND-CP dated June 30, 2018)
SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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Hanoi, date
ON-LENDING AUTHORIZATION CONTRACT IN TERM OF THE
DULY-AUTHORIZED INTERMEDIARY BEARING THE CREDIT RISKS
(Name of the loan) for the Project (Name of the Project)
No.:…../ /UQCVL/BTC-QLN
Pursuant to the Law on
Civil Code dated December 8, 2015;
Pursuant to the Law on
Public Debt Management dated November 23, 2017;
Pursuant to Decree No.
97/2018/ND-CP dated June 30, 2018 of the Government of Vietnam on on-lending of
the Government's ODA loans and foreign concessional loans;
Pursuant to the Foreign
Loan Agreement signed on day ……month……year between the State/Government of
Socialist Republic of Vietnam and (name of the foreign lender) (hereinafter
referred to as “Foreign Loan Agreement”) for the Project…. (hereinafter
referred to as “Project”);
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Pursuant to the Decision
on approving the Project.
Ministry of Finance of
Vietnam (hereinafter referred to as “Principal”), represented by the Department
of Debt Management and External Finance.
Headquarters: 28 Tran
Hung Dao - Hanoi
Tel: 024-22202828
Fax No. 024-22208020 or
024-22202868; and
Name of the Credit
Institution which is intermediary (hereinafter referred to as “Authorized
Party")
Headquarters:
……………………………………………………………………………………
Tel:
………………………………………………………………………………………..
Fax:
……………………………………………………………………………………………….
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Article 1. The Principal shall authorize the Authorized Party to
on-lend the loans to……. (name of the end borrower) and/or any party that
inherits all of rights and obligations of (name of the end borrower) under any
form (hereinafter referred to as “end borrower) of the foreign loan...........
(name of the donor country/ organization) according to the Agreement………with the
following conditions:
1. The on-lending
currency is:…………………………………….
2. The on-lending value
is the total withdrawal capital which does not exceed……………
3. The on-lending
term:……includes the grace period……….from the day......................
4. On-lending interest
rate:...... % per year based on the outstanding debts.
a) External loan interest
rate: .............% per year based on the outstanding debts.
b) Management fees of
on-lent loans are 0,25% per year based on the outstanding debts.
c) The loan loss
provision for on-lending is ......% per year based on the outstanding
debts.
d) The charges paid to
the foreign lender as prescribed in the Foreign Loan Agreement.
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6. The repayment date
shall be set based on the repayment date specified in the Foreign Loan
Agreement.
7. The end borrower shall
take full responsibility for paying all charges and relevant costs to the
foreign lender as prescribed in the Foreign Loan Agreement, including
management fees, commitment fees, loan withdrawal fees, insurance fees and
other fees and costs. The end borrower shall pay off these fees to the
Authorized Party, and this Party shall pay them back to the Principal.
8. The date of debt
acknowledgment is the date on which the Government of Vietnam acknowledges debt
with the foreign lender as prescribed in the Foreign Loan Agreement.
9. Repayment date: the
end borrower shall pay off the principal and interest for the Authorized Party
once every six months, on......and on.......every year (as prescribed in the
Foreign Loan Agreement). The repayment for the principal shall be made
consecutively, from the date……. , Ends on date
10. If the Foreign Loan
Agreement provides regulations on pre-maturity payment, the end borrower shall
make this payment after sending a written notification to the Authorized Party
and the Principal within 90 days before the date on which the payment is made,
and shall be approved by the Authorized Party and the Principal. If the
Foreign Loan Agreement does not provide regulations on pre-maturity payment or
the end borrower does not satisfy these regulations, the pre-maturity payment
shall be approved by the Authorized Party.
11. If the end borrower
repays the debt in foreign currency, the exchange rate is the transferred
selling rate of this on-lending currency set by the Joint stock Commercial Bank
for Foreign Trade of Vietnam at the time making the repayment.
12. The end borrower
shall make direct payments for the charges collected by domestic banks.
13. The end borrower
shall repay all of its debt obligations specified in this Agreement and in the
On-lending Agreement before repaying any of its other debts.
14. The end borrower
shall provide their collateral including assets originating from the on-lent
loans and other legal assets which are approved by the Authorized Party and
shall notify the Principal of these assets. The regulations on collateral shall
be specified in the On-lending Agreement and shall comply with the relevant
provisions in the Decree.
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16. The end borrower
shall specify its commitments on gathering the revenues of the project to make
repayment on time in the On-lending Agreement as prescribed in the Government’s
Decree No. 97/2018/ND-CP dated June 30, 2018; commit that it will not cancel
the authorization given to the duly-authorized intermediary unexpectedly; and
it shall allow this agency to automatically deduct any of its loans to collect
debts if it cannot make the repayment.
Article 2. Responsibilities of the Principal
1. The Principal shall
notify the Authorized Party of the foreign lender’s loan disbursement
notification for this Party to complete the procedures for acknowledging debts
with the end borrower regarding the on-lent loans.
2. The Principal shall
send a notification of the charges specified in Clause 7, Article 1 of this
Contract (if any) to the Authorized Party; and this Party shall notify the end
borrower for this end borrower to make debt repayment.
3. The Principal may take
charge or cooperate with the Authorized Party to inspect and supervise the use
of and repayment on on-lent loans of the end borrower periodically or when
necessary.
Article 3. Responsibilities of the Authorized Party
1. Within 30 working days
from the date on which this Contract is signed, the Authorized Party shall sign
the On-lending Agreement with the end borrower in accordance with the
conditions prescribed in Article 1. Within 15 days after signing the On-lending
Agreement with the end borrower, the Authorized Party shall send 1 copy of this
Agreement to the Principal for cooperation in supervising the on-lending
process.
2. The Authorized Party
shall complete the procedures for the end borrower to receive full debts based
on the notification of loan disbursement sent by the Authorized Party or the
foreign lender.
3. The Authorized Party
shall fulfill all of its obligations and take relevant responsibilities in
accordance with the regulations in Clause 1, Article 40 of the Law on Public
Debt Management, Article 23 of the Government's Decree No. 97/2018/ND-CP dated
June 30, 2018 and in this contract.
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5. The Authorized Party
shall do the debt reconciliation with the end borrower quarterly, including the
disbursement amount, amount of acknowledged debt, repayment amount, and amount
of outstanding loans in a period and the cumulative outstanding loans.
6. a) Once every six
months in June and December, the Authorized Party shall send a notification of
the debt recovery plan and the implementation process to the Principal; the
Principle shall include this plan and process in the annual plan and prepare to
make repayments to the foreign lender.
b) The Authorized Party
shall make a report on the on-lending process, the debt status of the end
borrower and the relevant contents prescribed in the Government's Decree No.
97/2018/ND-CP dated June 30, 2018.
7. The Authorized Party
shall carry out periodic or sudden inspection of the project’s execution and
the debt status of the end borrower in order to ensure the solvency of the end
borrower.
8. If the End borrower
does not make repayment on time:
a) After the Authorized
Party uses sanctions or measures but still cannot recover debts of on-lent
loans in full and on time from the end borrower including the principal,
interest, charges and other relevant costs, it shall pay off the debts in full
on behalf of the end borrower to the Principal within 2 working days after the
due date specified in the On-lending Agreement; these amount shall be
transferred to the Accumulation Fund for Debt Payment as prescribed in the
On-lending Agreement and this contract.
b) The Authorized Party
shall send a notification of these problems to the Principal when they occur.
Article 4. Implementation provision
1. This contract shall be
made into 02 documents, the Principal shall keep 1 document, the Authorized
Party shall keep 1 document; and this contract shall come into force from the
date on which it is signed.
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Representative of the Principal
Representative
of Authorized Party
1 This document is integrated from the following 2 Decrees:
- Decree No.
97/2018/ND-CP dated June 30, 2018 of the Government of Vietnam on on-lending of
the Government's ODA loans and foreign concessional loans, effective as of July
1, 2018;
- Decree No.
79/2021/ND-CP dated August 16, 2021 of the Government of Vietnam on amendments
to Decree No. 97/2018/ND-CP, effective as of October 1, 2021.
This integrated document
does not replace the 2 Decrees mentioned above.
2 Decree No. 79/2021/ND-CP has the following promulgation
grounds:
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Pursuant to the Law on
Public Debt Management dated November 23, 2017;
Pursuant to the Law on
State Budget dated June 25, 2015;
Pursuant to the Law on
Public Investment dated June 13, 2019;
At the request of the
Minister of Finance of Vietnam;
The Government of
Vietnam hereby promulgates the Decree on amendments to Decree No. 97/2018/ND-CP
dated June 30, 2018.”
3 This Clause is amended by Clause 1 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
4 This Clause is amended by Clause 2 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
5 This Clause is annulled by Article 2 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
6 This Clause is amended by Clause 3 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
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8 This Clause is supplemented by Clause 5 Article 1 of
Decree No. 79/2021/ND-CP, effective as of October 1, 2021.
9 This Clause is amended by Clause 6 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
10 This Clause is amended by Clause 7 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
11 This Clause is amended by Clause 8 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
12 This Point is amended by Clause 9 Article 1 of Decree No.
79/2021/ND-CP, effective as of October 1, 2021.
13 Article 3 and Article 4 of Decree No. 79/2021/ND-CP,
effective as of October 1, 2021, are as follows:
“Article 3. Entry
into force
1. This Decree comes
into force as of October 1, 2021.
2. The programs and
projects with the investment policies approved by the competent authority, the
finance mechanism, loan eligibility conditions before the date of entry into
force of the Decree shall be further implemented as per the approval of the
competent authority.
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Article 4.
Implementation responsibilities
Ministers, Heads of
ministerial-level agencies, Heads of Governmental agencies, the Presidents of
People’s Committees of provinces or central-affiliated cities, relevant
enterprises, organizations and individuals shall implement this Decree.”
14 Article 3 Appendix II enclosed with Decree No.
97/2018/ND-CP is amended by the Appendix enclosed with Decree No. 79/2021/ND-CP
according to Clause 10 Article 1 of Decree No. 79/2021/ND-CP, effective as of
October 1, 2021.