DECISION No. 233/1999/QD-TTg OF DECEMBER 20, 1999 PROMULGATING THE REGULATION ON THE GOVERNMENT�S GUARANTY FOR FOREIGN LOANS OF ENTERPRISES AND CREDIT INSTITUTIONS

THE PRIME MINISTER

DECIDES:

Article 1.- To promulgate together with this Decision the Regulation on the Government�s guaranty for foreign loans of enterprises and credit institutions.

Article 2.- This Decision takes effect 15 days after its signing. All the previous stipulations which are contrary to the Regulation promulgated together with this Decision are now annulled.

Article 3.- The Minister of Finance and the Governor of the State Bank of Vietnam shall have to assume the prime responsibility and coordinate with the Minister-Director of the Government Office, the Minister of Planning and Investment, the Minister of Justice and the heads of the concerned agencies in implementing, and guiding and inspecting the implementation of the Regulation on the Government�s guaranty for foreign loans of enterprises and credit institutions promulgated together with this Decision.

Article 4.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the People�s Committees of the provinces and centrally-run cities shall have to implement this Decision.

For the Prime Minister
Deputy Prime Minister
NGUYEN TAN DUNG

REGULATION ON THE GOVERNMENT�S GUARANTY FOR FOREIGN LOANS OF ENTERPRISES AND CREDIT INSTITUTIONS

Chapter I

GENERAL PROVISIONS

Article 1.- In this Regulation, the following terms and expressions shall be understood as follows:

Guarantor is the Vietnamese Government, which, through the guaranty-providing agency being (1) the Ministry of Finance, shall consider and provide guaranty for foreign loans of enterprises; or (2) the State Bank of Vietnam, shall consider and provide guaranty for foreign loans of credit institutions.

Guaranteed is an enterprise or a credit institution that borrows foreign loans (the borrower) and is guaranteed by the Government. The guaranteed also implies the borrower�s lawful assignee(s), transferee(s) and/or successor(s) accepted by the guarantor.

Guarantee is a party that has the ownership right over part or the whole guaranteed loan amount. The guarantee is the lender and the assignee(s), transferee(s) and/or lawful successor(s) of the lender that are referred to as the lender in loan contracts.

Assignee of the guaranteed or the guarantee is a party recognizing that the whole or part of rights and obligations of the guaranteed or the guarantee (including the ownership right) are its own rights and obligations in the assignment.

Transferee of the guaranteed or the guarantee is a party recognizing that the whole or part of rights and obligations of the guaranteed or the guarantee (excluding the ownership right) are its own rights and obligations in the transfer.

Successor of the guaranteed or the guarantee is a party receiving back part or the whole of assets together with obligations of the guaranteed or the guarantee.

Repayment obligation covers repayable amounts, including principal and interest according to loan contracts, interest for delayed repayment, fees and charges, compensations for damage (if any) according to provisions of specific loan contracts and in conformity with the letter of guaranty.

Margin interest rate is a part constituting the loan interest rate and the difference between the loan interest rate and the floating interest rate on an international inter-bank market.

The Government�s guaranty for foreign loans of enterprises or credit institutions (hereinafter referred to as the Government�s guaranty) is the guarantor�s commitment toward the foreign lender(s) to ensure the performance of repayment obligations already committed to in loan contracts of the borrowers toward lender(s) when they become due. In cases where the borrower fails to perform all the repayment obligations within the time limit already committed to in the loan contracts, the guarantor shall perform such repayment obligations on the borrower�s behalf according to provisions of the letter of guaranty, and the borrower shall be obliged to return to the guarantor the amounts paid by the latter on the former�s behalf together with the interest thereon and all expenses actually arising in relation thereto.

Article 2.- The Government�s guaranty is the guaranty of the highest legality in Vietnam; a document on commitment on the Government�s guaranty shall be materialized in form of a letter of guaranty.

The Government shall provide only guaranty, not re-guaranty.

Article 3.- The Government�s guaranty does not require the guaranteed being a State enterprise or a State-run credit institution to mortgage its assets. Other cases shall be proposed by the guaranty-providing agency to the Prime Minister for decision.

Article 4.- All other matters related to the Government�s guaranty for foreign loans of enterprises and credit institutions which are not mentioned in this Regulation shall comply with provisions of the Government�s Decree No.90/1998/ND-CP of November 7, 1998 promulgating the Regulation on management of foreign loans and repayment of foreign debts.

Chapter II

THE OBJECTS, SCOPE AND CONDITIONS FOR CONSIDERATION OF THE PROVISION OF THE GOVERNMENT�S GUARANTY

Article 5.- Objects to be considered by the Government for the provision of guaranty for foreign loans include:

1. State enterprises or State-run credit institutions allowed by the Government to directly borrow foreign capital by mode of self-borrowing and self-repaying in order to execute investment and development projects, contribute capital to joint ventures with foreign parties or expand credit activities.

2. Special objects other than those specified above, which shall be decided by the Prime Minister according to the actual demands and at the guaranty-providing agency�s proposals.

Article 6.- The Government shall provide guaranty to enterprises to borrow foreign capital for the execution of:

1. Investment projects of paramount importance in the national economic development plan, mainly the investment projects on infrastructure construction, with capital to be recovered.

2. Projects on the import of high-tech equipment or projects on the production of export goods.

3. Projects using commercial loans accompanied with non-refundable aid or foreign official development assistance (ODA) loans to create financing capital sources in form of mixed credit.

Article 7.- Credit institutions to be considered by the Government for the provision of its guaranty are those which borrow foreign capital to implement credit investment plans or supplement credit capital sources in all fields where capital can be recovered.

Article 8.- The guaranty-providing agency shall consider the provision of the Government�s guaranty only to objects and projects specified in Articles 5, 6 and 7 of this Regulation which fully meet the following conditions:

1. For enterprises: An enterprise�s investment project must satisfy the following requirements:

a/ Being a feasible project, which has been ratified or for which an investment decision has been issued by the competent agency according to the current regulations, which clearly states the loan borrowing and debt repaying plan, thus ensuring the repayment of due debts, and is eligible for being considered by the Government for guaranty for foreign loans for its execution.

b/ There must be the competent authority�s written approval of results of the bidding for the project and draft commercial contracts (consultancy contract, contract for supply of equipment, construction contract...) according to the current regulations.

Commercial contracts, loan contract and other instruments of the project must be compatible with each other in relevant terms.

For credit institutions: Loans must be approved by the Government for its guaranty according to the order prescribed at Point (b), Clause 1, Article 14 of this Regulation.

2. The value of a principal loan eligible for guaranty must not be lower than that of a sum of money equivalent to 10 million USD, except for projects specified in Clause 3, Article 6 of this Regulation. The lenders must be international financial organizations or credit institutions, foreign governments or commercial banks, or giant foreign economic organizations or groups.

3. A loan contract must fully meet the following conditions:

a/ It has a minimum loan term of 5 years or more (excluding the grace period);

b/ The loan currency must be the freely-convertible one(s);

c/ Loan interest rate, margin interest rate, fees and charges must conform to the present conditions on the international market and domestic market and the project�s particularities;

d/ Contents of the loan contract�s clauses must comply with the Vietnamese law and international practices;

e/ It is accepted and proposed by the guaranty-providing agency to the Prime Minister for approval.

4. There must be the lender�s written request for the Vietnamese Government�s guaranty.

5. Enterprises and credit institutions applying for guaranty are in normal production and/or business operation, and suffer from neither prolonged loss nor bad debts.

6. The requested guaranty level must not exceed the guaranty limit prescribed for such enterprise or credit institution.

Article 9.- Guaranty limit

The guaranty limit for each enterprise or credit institution is prescribed in Article 18 of the Government�s Decree No.90/1998/ND-CP of November 7, 1998 promulgating the Regulation on management of foreign loans and repayment of foreign debts.

Chapter III

THE AGENCIES PROVIDING AND MANAGING THE GOVERNMENT�S GUARANTY

Article 10.- The agencies providing the Government�s guaranty are those defined in Article 17 of the Government�s Decree No.90/1998/ND-CP of November 7, 1998 promulgating the Regulation on management of foreign loans and repayment of foreign debts.

Article 11.- The responsibilities of the guaranty-providing agencies and the concerned agencies

1. The Ministry of Finance is the agency to consider, on the Government�s behalf, the provision of guaranty to enterprises to borrow foreign loans under the Prime Minister�s decisions, perform the function of the State management over all the Government�s guaranties for foreign loans as for the Government�s foreign loans, and guide the enterprises that borrow foreign loans guaranteed by the Government to pay guaranty fee.

2. The State Bank of Vietnam is the agency to consider, on the Government�s behalf, the provision of guaranty to credit institutions to borrow foreign loans under the Prime Minister�s decisions. It shall have to supply adequate and timely information on its guaranties to the Ministry of Finance for general management of the provision of the Government�s guaranty, and guide the credit institutions that borrow foreign loans guaranteed by the Government to pay guaranty fee.

The Ministry of Finance and the State Bank of Vietnam shall agree upon a specific regulation on coordination in the provision of the Government�s guaranty, information exchange and handling of matters arising in the course of the Government�s guaranty, monitor and supervise the situation of using loans and render necessary support to the guaranteed enterprises and credit institutions, and quarterly report to the Prime Minister on loans guaranteed by the Government which cannot be repaid when they become due.

For the Government�s guaranties provided by the State Bank of Vietnam before the promulgation of the Government�s Decree No.90/1998/ND-CP of November 7, 1998, the State Bank of Vietnam shall continue to manage them according to the function of the guaranty-providing agency and shall have to transfer to the Ministry of Finance copies of all dossiers of such guaranties for general management. The whole guaranty fee amount collected from the effective date of this Regulation shall be channeled by the State Bank of Vietnam into the "Accumulation Fund for Debt Repayment" under the Ministry of Finance�s guidance.

3. The Ministry of Justice shall have to examine the legal matters in written agreements to be signed with the lenders and give its legal opinions to the guaranteed and the guarantor.

Article 12.- The guaranty-providing agency may be invited by the "bid solicitor" to participate in the evaluation of financial bid packages for projects having foreign loans requested to be guaranteed by the Government.

Chapter IV

THE ORDER AND PROCEDURES FOR PROVIDING THE GOVERNMENT�S GUARANTY

Article 13.- The contents of the letter of the Government�s guaranty shall be agreed upon by the guaranty-providing agency and the guarantee, and include the following details:

a/ The guarantor and the guaranty-providing agency;

b/ The guarantee;

c/ The guaranteed;

d/ References to the relevant commercial contracts, loan contract;

e/ The requested guaranty level, loan currency(ies);

f/ The guarantor�s commitment toward the guarantee on the obligations of the guaranteed and the guarantor;

g/ The benefits and responsibilities of the guarantee;

h/ The effective duration and the time limit for withdrawing the letter of guaranty;

i/ The governing laws, and the agency(ies) and place(s) for and language(s) to be used in the trial when disputes arise;

j/ The place and date of signing for issuance of the letter of guaranty.

Article 14.- The order and procedures for considering the provision of guaranty

1. Consent to the Government�s guaranty:

a/ For enterprises, the consent to the Government�s guaranty is prescribed in Clause 1, Article 8 of this Regulation.

b/ For credit institutions: At credit institutions� requests, the State Bank of Vietnam shall have to submit to the Prime Minister requests for consent to the provision of the Government�s guaranty for loans, clearly stating the lender, the value of loans that need to be guaranteed, the pre-conditions for loan borrowing and repayment laid by the lender, the guaranty-providing agency�s opinions on such loans, together with the lender�s written request for the Government�s guaranty.

2. Dossiers requesting the provision of guaranty:

Basing itself on the investment decisions (for enterprises) or the Prime Minister�s consents (for credit institutions), the borrower shall have to supply dossiers to the guaranty-providing agency; such a dossier shall comprise:

a/ The draft loan contract;

b/ The draft letter of guaranty;

c/ The relevant commercial contract(s);

d/ The feasibility study report of the project that uses foreign loan capital already ratified or for which an investment decision has been issued by the competent authority;

e/ The financial statement of the borrower already audited or certified by the agency in charge of management of the State�s capital and property at enterprises for 2 latest years (for enterprises or credit institutions being in operation).

f/ The lender�s written request for the Government�s guaranty.

3. Examination of dossiers requesting the provision of guaranty:

Upon receiving a dossier requesting the provision of guaranty, the guaranty-providing agency shall have to examine such dossier within 5 working days, and when necessary, it may request the concerned enterprise or credit institution to additionally supply or further clarify the relevant documents. If the guaranty dossier is complete, the guaranty-providing agency shall notify the borrower thereof, so that the latter can continue carrying out activities prescribed in Clauses 4, 5 and 6 of this Article.

4. Negotiation of loan contracts and relevant documents:

a/ After being notified by the guaranty-providing agency, the borrower shall negotiate with the lender on the specific contents of the loan contract with the participation of the guaranty-providing agency and other concerned agencies.

b/ The guaranty-providing agency shall negotiate with the lender on the contents of the letter of guaranty.

c/ The Ministry of Justice shall negotiate with the lender on the content of legal opinions.

5. Approval of loan contracts and letters of guaranty:

Within 30 days after the conclusion of the negotiation of a loan contract and relevant documents:

a/ At the request of the borrower or the superior State management agency of the borrower (if any), the guaranty-providing agency shall have to submit to the Prime Minister for approval contents of the loan contract and the letter of guaranty.

b/ The Prime Minister shall approve simultaneously the content of the loan contract and the content of the letter of guaranty.

6. Granting of letters of guaranty and giving of legal opinions after the Prime Minister�s written approval of the contents of loan contracts and letters of guaranty:

a/ The borrower shall officially sign the loan contract with the lender, and sign the written commitment according to the set form with certification by the superior State management agency of the borrower (if any) and send them to the guaranty-providing agency.

b/ The guaranty-providing agency shall issue each letter of guaranty in 3 originals, which shall be kept by the lender, the borrower and the guaranty-providing agency. The one to be kept by the lender shall be sent through the borrower.

c/ The borrower shall carry out the procedures for registering the to be-guaranteed loans according to the State Bank of Vietnam�s regulations.

d/ The Ministry of Justice shall publish its legal opinions in 4 originals in cases where the lender so requests, each shall be kept by the lender, the guarantor, the guaranteed and the Ministry of Justice. The one to be kept by the lender shall be sent through the borrower.

Article 15.- In case of guaranty for commercial loans accompanied with non-refundable aid or ODA loans to create a financing source in form of mixed credit, the order and procedures for considering guaranty shall comply with provisions of Clauses 2, 3, 4 and 6, Article 14 of this Regulation.

Article 16.- Withdrawal of the Government�s guaranty

The guarantor shall withdraw the letters of guaranty as soon as the guaranteed repayment obligations are fulfilled, or when the lender unilaterally cancel the loan contract, or the guaranty is substituted by other security measures. The guaranty-providing agency shall have to promptly notify the concerned parties of such withdrawal.

For cases where it is necessary to withdraw guaranty other than the above-said cases, the guaranty-providing agency shall consult the Ministry of Justice and propose them to the Prime Minister for consideration and decision according to the current provisions of laws and the international practices.

Article 17.- In cases where the guarantor has to repay debts on the guaranteed�s behalf, the guaranty-providing agency shall effect the repayment on the guaranteed�s behalf according to provisions of the Regulation on setting up, use and management of the Accumulation Fund for Foreign Debt Repayment promulgated together with the Finance Minister�s Decision No.72/1999/QD-BTC of July 9, 1999.

The amount recovered from the guaranteed according to provisions of Clause 1, Article 20 of this Regulation shall be channeled by the guaranty-providing agency into the "Accumulation Fund for Foreign Debt Repayment" and accounted as a revenue source of such fund.

Chapter V

THE OBLIGATIONS OF THE GUARANTEED

Article 18.- The guaranteed shall have the following obligations:

1. To supply to the guaranty-providing agency the following information:

a/ The report made according to the set form, including the following contents: the date and value of each capital withdrawal within the guaranteed loan; the capital withdrawal schedule, and quarterly debt repayment for the guaranteed loan;

b/ Annual reports on the situation of project execution;

c/ Financial statements audited or certified by the superior State management agency of the guaranteed (if any), including the accounting balance sheet, the results of business operation and monetary circulation, and explanation of the financial statements;

d/ Special circumstances that may affect the project execution and capability to fulfill the repayment obligations under the loan contract.

2. To create favorable conditions for the guaranty-providing agency to inspect the project execution when necessary.

3. To pay the guaranty fee on time and in full according to provisions of this Regulation.

4. To strictly and fully perform the obligations already committed with the guaranty-providing agency in the written commitment made according to the set form.

Article 19.- The guaranty fee levels and the fee for consideration of dossiers applying for guaranty

1. The guaranteed shall have to pay to the guaranty-providing agency the guaranty fee, which shall be calculated on the debit balance of the guaranteed loan, and specified as follows:

a/ 0.5%/year on the debit balance of the loans guaranteed by the Government for the execution of investment projects for infrastructure construction with possibility of capital recovery.

b/ 1.0%/year on the debit balance of the loans guaranteed by the Government for the execution of projects other than those mentioned at Point (a) above.

c/ For projects mentioned in Clause 3, Article 6 of this Regulation, the guaranty fee shall not be collected.

When it deems necessary to readjust the guaranty fee levels, the Ministry of Finance shall assume the prime responsibility and coordinate with the State Bank of Vietnam in proposing new guaranty fee levels to the Prime Minister for approval and promulgation at least 90 days before the application thereof. Under any circumstances, the guaranty fee levels must not exceed 1.5%/year on the debit balance of loans guaranteed by the Government.

2. Payment of guaranty fee

The guaranty fee shall be calculated in foreign currency(ies) in which the loan contracts have been signed, and paid on the date of repaying interest of loans in such foreign currency(ies), or in other convertible foreign currencies, or in Vietnam dong at the exchange rate(s) officially announced or notified to the Ministry of Finance by the State Bank of Vietnam at the said point of time. The guaranty-providing agency shall guide the guaranteed in directly remitting such guaranty fee amounts into the "Accumulation Fund for Debt Repayment" according to the Ministry of Finance�s regulations.

3. The fee for consideration of dossiers of applying for guaranty

The guaranteed shall have to pay to the guaranty-providing agency the fee at a fixed level for the consideration of dossiers of applying for guaranty in order to cover expenses arising in the course of considering and providing guaranty. The specific fee level(s) and the time limit for paying such fee shall be uniformly prescribed by the Ministry of Finance.

Article 20.- Other obligations

1. In cases where the guarantor repays debts on the guaranteed�s behalf, the guaranty-providing agency may apply coercive measures prescribed by law against the guaranteed, compelling it to acknowledge debts owed to the guarantor and indemnify the latter within a certain time limit the amounts already paid by the latter on its behalf, plus all expenses actually arising related to the repayment on its behalf, with any interest rate higher than one of the two following rates:

a/ Interest rate stated in the loan contract, or,

b/ LIBOR interest rate(s)/6 months for the loan currency(ies) according to the loan contract, plus 1%/ year calculated from the date the guarantor repays debts on the guaranteed�s behalf till the date the guarantor recovers such repaid amount.

2. In cases where the guaranteed is unable to repay debts due to subjective reasons, such as: ineffective use, waste or loss of loan capital, thus adversely affecting the Government�s prestige and causing losses to the State budget, the guaranteed shall be handled according to provisions of law.

Article 21.- The assignee, the transferee and the successor of the guaranteed shall have obligations toward the guaranty-providing agency in proportion to the scope of the assignment, transfer or succession from the guaranteed.

Chapter VI

HANDLING OF VIOLATIONS

Article 22.- Organizations and individuals that violate provisions of this Regulation shall, depending on the nature and seriousness of their violations, be administratively handled or examined for penal liability, and compelled to compensate for damage according to the current regulations.

For the Prime Minister
Deputy Prime Minister
NGUYEN TAN DUNG