Decision No. 02/2000/QD-BTC dated January 6, 2000 of the Ministry of Finance promulgating the regulation on sub-lending of the Government’s foreign loan/aid capital

DECISION

PROMULGATING THE REGULATION ON SUB-LENDING OF THE GOVERNMENT’S FOREIGN LOAN/AID CAPITAL

THE MINISTER OF FINANCE

Pursuant to the Government’s Decree No.15/CP of March 2, 1993 defining the tasks, powers and State management responsibilities of the ministries and ministerial-level agencies;
Pursuant to the Government’s Decree No.178/CP of October 28, 1994 on the tasks, powers and organizational structure of the Finance Ministry;
Pursuant to the Government’s Decree No.90/CP of November 7, 1998 promulgating the Regulation on Management of Foreign Loans and Repayment of Foreign Debts;
Pursuant to the Government’s Decree No.87/CP of August 5, 1997 promulgating the Regulation on Management and Use of Official Development Assistance (ODA);
Pursuant to the Government’s Official Dispatch No.672/CP-QHQT of July 6, 1999 ratifying the contents of the Regulation on Sub-Lending of the Governments Foreign Loan/Aid Capital;
At the proposal of the Director of the External Finance Department,

DECIDES:

Article 1.- To issue together with this Decision the Regulation on Sub-lending of the Governments Foreign Loan/Aid Capital.

Article 2.- This Decision takes effect 15 days after its signing. The relevant Departments of the Finance Ministry and the heads of the concerned agencies and units shall have to implement this Decision.

REGULATION

ON SUB-LENDING OF THE GOVERNMENT’S FOREIGN LOAN/AID CAPITAL

(Issued together with the Finance Ministry’s Decision No.02/2000/QD-BTC of January 6, 2000)

Article 1.- Definition

In this Regulation, the following terms shall be construed as follows:

a/ "Sub-lending" means a undertaking whereby the Government, through the Finance Ministry, authorizes the sub-lending agencies to sub-lend the Governments foreign loan/aid capital to sub-borrowers for implementation of investment projects, which are capable of recovering capital; or to the domestic credit institutions for the further provision of loans according to a credit program or credit combination under a project using foreign loan capital.

b/ "Foreign loan/aid agreements" are international agreements signed by the Vietnamese Government or the agencies authorized by the State or the Government of Vietnam, with foreign parties in order to provide capital to Vietnam.

c/ "Donors" are foreign parties which finance programs and/or projects.

d/ "Sub-lending agencies" are domestic financial and credit institutions authorized by the Finance Ministry to provide sub-loans, which have to recover capital and loan interests from sub-borrowers and enjoy sub-lending fee according to the Government’s stipulations. Where the Finance Ministry directly provides sub-loans under credit programs, the sub-lending fee shall not be collected.

e/ "Sub-borrowers" mean units and organizations being domestic investors that use the Government’s foreign loan/aid capital to implement projects stated in the foreign loan/aid agreements and have to refund the loan capital to the Government according to the sub-lending agreements they have signed with the sub-lending agencies in order to create capital sources for foreign debt repayment. In case of credit programs, the "sub-borrowers" shall be financial/credit institutions that receive capital from the Finance Ministry to further lend it to the program objects according to their respective regulations.

f/ "Sub-lending agreements" mean credit contracts between the sub-lending agencies and sub-borrowers, or sub-lending sub-agreements between the Finance Ministry and sub-borrowers in case of borrowing from international financial institutions. The borrowing-repayment conditions of sub-lending agreements may be different from the borrowing-repayment conditions of loan agreements signed with the donors.

g/ "Commercial interest rate for reference (CIRR)" means the fixed interest rate for each type of currencies announced every month by the Organization for Economic Cooperation and Development (OECD) on the basis of the long-term bond interest rate, which is often used to determine the lending interest rate for export credit.

h/ "Interest rate guided by the Finance Ministry": The interest rates for sub-lending and debt recovery shall comply with the interest rate guided by the Finance Ministry, based on the interest rates officially announced by the State Bank of Vietnam or notified by the latter to the Finance Ministry at the time of sub-lending or debt recovery.

Article 2.- Sub-borrowing conditions

Vietnamese organizations and units may sub-borrow the Governments foreign loan/aid capital when they meet the following conditions:

1. Having programs/projects using loan/aid capital already ratified by the competent authority, ensuring the debt-repayment capability according to the domestic investment legislation, being allowed by the Government to use the loan/aid capital and accepted by donors.

2. For operating units and/or organizations, they must be those conducting normal business activities and having healthy financial situation.

3. Accepting the Governments sub-lending conditions stipulated in this Regulation.

4. Making expositions and commitments to obtain adequate reciprocal capital for implementation of programs/projects.

The State management agencies and administrative management units shall not be entitled to sub-borrow the Government’s foreign loan/aid capital.

Article 3.- Sub-lending conditions

3.1. Currencies for sub-lending and debt recovery:

a/ Sub-lending in foreign currencies:

(1) The sub-borrowers shall acknowledge debts in foreign currency(ies) and may repay them in foreign currency(ies) or Vietnam dong according to the exchange rates at the time of repayment under the Finance Ministrys guidance.

(2) The foreign currency(ies) used for sub-lending shall be the original currency(ies) stated in the loan/aid agreements signed with foreign parties or other convertible foreign currencies as agreed upon with the Finance Ministry. In case of debt recovery in foreign currency(ies), the sub-borrowers may repay debts in foreign currency(ies) prescribed in the loan/aid agreements or other convertible foreign currencies as agreed upon with the Finance Ministry and according to the exchange rates guided by the Finance Ministry.

b/ Sub-lending in Vietnam dong:

For a number of ODA-funded programs/projects, the sub-lending shall be effected only in Vietnam dong, and the Government shall agree to bear foreign exchange risks while the sub-borrowers shall acknowledge debts in Vietnam dong.

c/ For a number of ODA programs/projects, if necessary, the sub-loans may be provided in both foreign currency(ies) and Vietnam dong.

3.2. Value of sub-loans

The sub-loan value inscribed in the sub-lending agreements shall be determined on the basis of the value of foreign loan/aid agreement signed with the donor for each program/project. Where a foreign loan/aid agreement is concluded for more than one program/project but the amount of capital to be allocated to each program/project is not provided for, the sub-loan value shall be determined on the basis of decision on allocation of the Governments loan/aid capital.

The value of the actually acknowledged debts shall be calculated according to each time of capital withdrawal. The value of acknowledged debts for sub-loans in Vietnam dong shall be determined on the basis of the capital amount actually withdrawn in foreign currency(ies) multiplied by the exchange rate guided by the Finance Ministry at the time of capital withdrawal.

3.3. Time point for debt acknowledgment:

The time when the sub-borrower acknowledges a debt with the sub-lending agency shall be the time of capital withdrawal under the donor’s notice or the time of capital withdrawal from the special account, in cases where more than one program/project under the same foreign loan/aid agreement uses the mode of withdrawing capital from the special account.

3.4. Time for principal repayment:

The time for repayment of principal capital and the grace period shall be determined on the basis of the two following conditions:

1. The time for repaying the principal of the sub-loan inscribed in the sub-lending agreement shall conform to the time for refunding capital as stated in the feasibility study report ratified for each program/project.

The grace period shall be calculated from the time of implementation of the program/project till the time it is put into operation as stated in the feasibility study.

2. In principle, the repayment time must not exceed the time-limit set by the donor for the Vietnamese Government. In case of the excess of such time-limit, the Finance Ministry shall report it to the Prime Minister for decision.

The grace period and repayment time shall be counted as from the first day of capital withdrawal of the program/project (unless otherwise requested by the donor).

After the final capital withdrawal for the project has been effected, the sub-lending agency shall base itself on the total capital amount already withdrawn and the actually acknowledged debt value already accrued to define a detailed schedule of principal repayment for each sub-lending agreement in conformity with the foreign loan/aid agreement and send it to the sub-borrower as well as the Finance Ministry (for monitoring).

The sub-borrowers may repay debts ahead of time but must notify such in writing at least 30 days before the debts are repaid to the sub-lending agencies and the Finance Ministry.

3.5. Sub-lending interest rates:

1. Commercial interest rates:

Where the Government borrows foreign capital under commercial conditions and makes domestic subloans in foreign currency(ies), the sub-lending interest rates shall be equal to the interest rates and fees (except for the fees already paid by the sub-borrowers directly to the foreign parties) collected by the foreign parties, plus the domestic sub-lending fee.

2. Preferential interest rates:

The preferential interest rates shall apply in cases where the Government sub-lends its ODA capital to domestic investment projects.

The preferential interest rates for sub-loans in Vietnam dong shall apply according to the lending interest rates for investment of the State Development Assistance Fund, or the preferential interest rates applicable to special credit programs under the Prime Minister’s decisions. Such preferential interest rates already include the domestic sub-lending fee.

The preferential interest rate for sub-loans in foreign currency(ies) shall be calculated for each type of currency under the principle that it shall be equal to 2/3 of the commercial interest rate for reference (CIRR) at the time of signing the foreign loan/aid agreement, with a term compatible to the term of loan provided under the foreign loan agreement plus the overseas fee (if any) and sub-lending service charge, which, in all circumstances, must not be lower than the interest rate inscribed in the loan agreement plus the overseas fee and sub-lending fee. For types of foreign currency not provided for in the CIRR Table, the Finance Ministry shall use the commercial interest rates on the markets of the donors home countries.

The above-mentioned preferential interest rates shall also apply to sub-loans in case of the use of the mixed credit capital, including the commercial loans and ODA capital, by the mode of integrating both types of capital.

3. With regard to credit programs where capital is withdrawn in cash and sublent through financial/credit institutions to the end-users, the sub-lending interest rates shall be determined on the basis of the weighted average interest rate of the domestic banking system or the lending interest rate for the end-borrowers minus the percentage (%) of remuneration enjoyed by financial/credit institutions being sub-borrowers to cover expenses.

3.6. Types of fee: The sub-borrowers shall have to pay the following types of fee:

1. The fees collected by foreign parties: Depending on each specific loan agreement, the overseas fees may include the management fee, the commitment fee, the capital withdrawal fee and other fees stipulated in the foreign loan/aid agreement. Ordinarily, the sub-borrowers pay these fees directly to the donors. In cases where the Government pays the above-mentioned overseas fees, the sub-borrowers shall have to refund them to the State budget.

2. Domestic sub-lending fee: This fee shall be collected by the sub-lending agencies from the sub-borrowers and included in the domestic sub-lending interest rates.

The sub-lending fee shall not cover the credit risks. More concretely:

- For sub-loans valued at under 2 million SDR (about 3 million USD) and with the lending term of under 12 years, the sub-lending fee shall be 0.3%/year of the original debit balance.

- For sub-loans valued at under 2 million SDR and with the lending term of 12 years or more, the sub-lending fee shall be 0.25%/year of the original debit balance.

- For sub-loans valued at 2 million SDR or more, the sub-lending fee shall be 0.2%/year of the original debit balance.

Where the sub-lending agencies can select the sub-borrowers and accept the credit risks, the Finance Ministry shall reach agreement with the sub-lending agencies on each specific case and report it to the Prime Minister for deciding the risk level, which shall be added to the above-mentioned sub-lending fee.

3. For service charges to be collected by serving banks, the sub-borrowers shall pay them directly to the banks according to the latter’s regulations.

3.7. Interests on late repayment fine:

For all the payable amounts, including the principals, interests and sub-lending fee, if failing to pay them on time, the sub-borrowers shall be subject to an interest on late payment fine, which is equal to 130% of the interest rate stated in the sub-lending agreement but must, in all circumstances, not be lower than the interest on late repayment fine provided for in the foreign loan agreement. The interest on late repayment fine shall be calculated from the date the repayment is due but not made till the date of actual repayment.

3.8. Calculation of interests

The sub-lending interest rate and fee as well as the interests on fines shall be calculated on the actual number of days and the basis of 360 days a year.

Article 4.- Special sub-lending cases

The above-mentioned subjects entitled to subloans and sub-lending conditions shall apply to all programs/projects which re-borrow the Governments foreign loan/aid capital. In special cases where conditions other than the above-mentioned principles shall be prescribed, the Finance Ministry shall report them to the Prime Minister for decision.

Article 5.- Non-exemption of liability and priority order for repayment of loan capital

5.1. Non-exemption of liability:

All complaints and disputes related to commercial contracts shall be settled by the contracting parties. These complaints and disputes shall not exempt the sub-borrowers from any obligations under the sub-lending agreements.

5.2. Order of priority for repayment of loan capital:

With regard to the payable principals, interests and fees stated in the sub-lending agreements, the sub-borrowers shall have to repay them according to the order of priority like any other loans of enterprises.

Article 6.- Sub-lending procedures and responsibilities of the concerned agencies

6.1. Evaluation, ratification of sub-lending programs/projects:

1. For ODA loans under projects: The Ministry of Planning and Investment shall assume the prime responsibility and coordinate with the Finance Ministry in submitting to the Prime Minister a list of projects entitled to re-borrow the Governments loan/aid capital before the framework international agreements or agreements on the lists of projects are concluded with foreign parties.

The evaluation and ratification of projects shall comply with the Government’s Decree No.87/CP of August 5, 1997 promulgating the Regulation on ODA Management and Use; Decree No.90/CP of November 7, 1998 promulgating the Regulation on Management of Foreign Loans and Repayment of Foreign Debts; and Decree No.52/1999/ND-CP of July 8, 1999 promulgating the Regulation on Investment and Construction Management. The evaluating agency shall take responsibility for the projects’ efficiency and capability of repaying debts to the State budget and be held responsible before law for the evaluation results.

2. For ODA loans under credit programs: Financial/credit institutions being sub-borrowers shall have the right to evaluate projects and choose the objects for further lending in conformity with the credit programs already agreed upon with the donors, and at the same time bear all risks in the course of providing sub-loans to such objects.

3. For commercial loans, except where the Prime Minister appoints sub-borrowers, the sub-lending agencies shall have the right to re-evaluate projects and choose suitable sub-borrowers after the investors have completed the procedures for elaboration and ratification of investment projects according to the States current regulations and shall bear all risks in the sub-lending course.

6.2. Sub-lending order and procedures:

The sub-borrowers shall submit to the Finance Ministry (the External Finance Department) the following documents to serve as basis for sub-lending:

- The ratified feasibility study of the project;

- The investment decision of the competent level;

- The official dispatch proposing conditions for re-borrowing the Government’s loan/aid capital;

- The certification of the financial situation issued by the provincial/municipal Finance-Pricing Department or the Enterprise Finance Sub-Department (in provinces and cities where sub-departments are set up) for the State enterprise, or the already audited financial statement of the unit or organization for two fiscal years right before the time of re-borrowing (for operating units and organizations);

- The exposition and commitment on reciprocal capital.

Within 30 days after receiving all above-said valid documents from the sub-borrowers, the Finance Ministry shall work with the sub-lending agencies and the sub-borrowers to define concrete sub-lending conditions for projects on the basis of the framework conditions of this Regulation. In special cases where the sub-lending conditions prescribed in this Regulation cannot be met, the Finance Ministry shall consult the concerned agencies and submit their opinions to the Prime Minister for decision.

6.3. Conclusion of sub-lending authorization contracts :

After defining concrete sub-lending conditions according to Clause 6.2 or after getting an approval from the Prime Minister, within 15 days the Finance Ministry (represented by the External Finance Department) shall conclude sub-lending authorization contracts with the sub-lending agencies according to the set general principles.

6.4. Conclusion of sub-lending agreements:

Within 30 days after signing the sub-lending authorization contracts with the Finance Ministry, the sub-lending agencies shall conclude sub-lending agreements with the sub-borrowers according to the conditions stipulated in the sub-lending authorization contracts already signed with the Finance Ministry.

After concluding sub-lending agreements, the sub-lending agencies shall send the copies thereof to the Finance Ministry (the External Finance Department) for coordination in monitoring and management.

For sub-lending agreements in form of sub-lending sub-agreements or in cases where the Finance Ministry directly provides sub-loans, the Finance Ministry shall authorize the External Finance Department to conclude the sub-lending agreements. The time-limits for signing sub-lending sub-agreements shall comply with the provisions of the foreign loan/aid agreements. In this case, the sub-lending authorization contracts may be signed after the conclusion of the sub-lending agreements.

6.5. Debt-acknowledgement procedures:

Basing itself on the donors capital withdrawal notices, the Finance Ministry shall charge debit to the sub-lending agencies so that the latter notify the sub-borrowers of filling in the debt-acknowledgement procedures for each time of sub-loan provision.

Right after receiving a notice on the end of the capital-withdrawal time-limit of a foreign loan/aid agreement, the Finance Ministry shall inform it to the sub-lending agencies so that the latter complete the debt-acknowledgement procedures for each project/program.

6.6. Management and reporting:

1. The sub-borrowers shall have to manage and use the loan/aid capital for the right purposes stipulated in the foreign loan/aid agreement, and with efficiency. The sub-borrowers shall have to make entries and settle accounting accounts of all goods, services and currencies related to the loan-capital support.

The sub-borrowers shall have to supply periodically or at the irregular requests of the sub-lending agencies or the Finance Ministry (in case the Finance Ministry directly provides sub-loans) information and/or reports related to the implementation of programs/projects to the sub-lending agencies, the Finance Ministry and the donors, and at the same time notify these agencies of the arising circumstances which have delayed the implementation of programs/projects and caused changes to programs/projects.

2. The sub-lending agencies shall have to manage and supervise the use of sub-loan capital by sub-borrowers. The sub-lending agencies shall have to clearly record and settle accounting accounts of sub-loans for each of the sub-borrowers.

The sub-lending agencies shall have to regularly or irregularly supply information and/or reports related to the implementation of programs/projects to the Finance Ministry and donors at their requests.

6.7. Capital recovery:

1. The sub-borrowers and sub-lending agencies shall have to strictly and fully repay debts stated in the sub-lending agreements and sub-lending authorization contracts, which shall be transferred to the Accumulation Fund for Debt Repayment managed by the Finance Ministry under its concrete guidance.

2. The sub-lending agencies may apply all necessary measures under the current law provisions to ensure the full and timely recovery of debts from the sub-borrowers and refund them to the State budget.

3. Where the sub-borrowers are unable to repay debts:

a/ If the programs/projects are evaluated and provided with loans by the sub-lending agencies mentioned in Item 6.1(3), the sub-lending agencies shall have to repay debts for the sub-borrowers.

b/ If the programs/projects are designated by the Government as mentioned in Item 6.1(1) and the sub-lending agencies, after applying all necessary measures permitted by law, still fail to recover debts, such sub-lending agencies shall have to notify the situation to the Finance Ministry so that the latter coordinates with the Ministry of Planning and Investment and the project-evaluating agencies in reporting such to the Prime Minister for handling.

Article 7.- Implementation provisions

7.1. The sub-lending agreements signed before the promulgation of this Regulation shall continue to be effective, except for the provisions on capital recovery, which must be adjusted under the Regulation on Accumulation Fund for Debt Repayment, issued by the Finance Ministry together with the Finance Ministers Decision No.72/1999/QD-BTC of July 9, 1999.

7.2. The other matters related to the process of sub-lending and recovery of sub-loan capital not mentioned in this Regulation shall be dealt with according to 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 and Decree No.87/CP of August 5, 1997 promulgating the Regulation on ODA Management and Use.

In the course of implementation, if any problems arise, the concerned agencies, units and organizations should promptly report them to the Finance Ministry for handling.