Decree No. 15/2011/ND-CP dated February 16, 2011 of the Government on provision and management of government guarantee

THE GOVERNMENT

Decree No. 15/2011/ND-CP of February 16, 2011, on provision and management of government guarantee

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the December 16, 2002 Law on the State Budget;

Pursuant to the June 17, 2009 Law on Public Debt Management;

At the proposal of the Minister of Finance,

DECREES:

Article 1. Scope of regulation

This Decree provides the provision of government guarantee; management of government guarantee and responsibilities of agencies in the provision and management of government guarantee for domestic arid foreign loans, including issue of domestic and international bonds.

Article 2. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Guarantee means a party that has the ownership over part or the whole of a guaranteed loan or bond. A guarantee can be a lender or bond buyer, or the lawful assignee or transferee of a lender, which is referred to as the lender in a loan or bond issue agreement.

2. Assignee of the guaranteed or the guarantee means a party that takes over all or some of the rights and obligations of the guaranteed or the guarantee in an assignment.

3 Transferee of the guaranteed or the guarantee means a party that takes over all or some of the rights and obligations of the guaranteed or the guarantee in a transfer.

4. Payment obligation means payable amounts including loan principal and interest under a contract, interest on delayed payment, charges and expenses, damages (if any) under a specific loan or bond issue agreement, which are accepted in the letter of guarantee.

5. Recipient of procedural dossiers means a overseas Vietnamese representative agency or an institution authorized to receive and certify the receipt of procedural dossiers related to government guarantee and forward all those dossiers to the Ministry of Finance.

6. Legal opinion means a document issued by the Ministry of Justice in accordance with the Vietnamese law at the time of issuance, treaties to which Vietnam is a contracting party, and international financial, credit, commercial and investment practices.

Article3. Forms of guarantee

1. Government guarantee is the guarantee of the highest legality in Vietnam. A government guarantee commitment shall be made in the form of a letter of guarantee, a guarantee contract or a guarantee decision (below collectively referred to as letter of guarantee).

2. The Government provides only guarantee, not re-guarantee.

Article 4. Responsibilities of coordinating agencies

1. The Ministry of Justice:

a/ To participate in negotiation and give opinions on legal matters in foreign loan agreements, international bond issue agreements and letters of guarantee before they are submitted to the Prime Minister for decision; to give opinions on legal matters concerning foreign borrowing and repayment documents of domestic enterprises and economic organizations at the request of borrowers, lenders and the Ministry of Finance;

b/ To assume the prime responsibility for negotiating, and give legal opinions on, foreign loan agreements, international bond issue agreements, letters of guarantee, the guarantor and the guaranteed;

c/To coordinate with the Ministry of Finance in settling legal disputes arising in the implementation of letters of guarantee.

2. The Ministry of Foreign Affairs: To coordinate with the Ministry of Finance in authorizing appropriate overseas Vietnamese representative agencies to receive procedural dossiers related to government guarantee in case legal procedures under foreign loan agreements or letters of guarantee require recipients of procedural dossiers to be appropriate overseas Vietnamese representative agencies.

Article 5. Implementation of government guarantee limits

1. The Ministry of Finance shall provide government guarantee under the Prime Minister's decision for each loan or each bond issue tranch within the approved limits for foreign borrowing and government guarantee.

2. When government guarantee approved for a year has been fully provided but there is a request for government guarantee for a key project or work or an urgent major project of special significance to national socio-economic development for which the investment policy has been decided by the National Assembly or the Prime Minister, the Ministry of Finance shall report such to the Prime Minister for adjustment of the government guarantee limit for that year, which, however, must ensure national debt safety requirements.

Article 6. Programs and projects to be considered for government guarantee

1. Programs and projects shall be considered for government guarantee under Article 33 of the Law on Public Debt Management.

2. The Prime Minister shall specify programs and projects applying high technologies, projects in energy, mineral exploitation and processing, manufacture of exports and provision of services; and programs and projects in sectors and localities entitled to state investment incentives under Clauses 2 and 3, Article 33 of the Law on Public Debt Management.

Article 7. Conditions for obtaining government guarantee

In addition to the conditions specified in Article 34 of the Law on Public Debt Management, conditions for obtaining government guarantee are detailed as follows:

1. For programs and projects:

a/ Being on the list of programs and projects entitled to government guarantee decided by the Prime Minister in each period;

b/ For special programs and projects outside the above list, being decided by the Prime Minister on a case-by-case basis.

2. For borrowers and bond issuers:

a/ Being enterprises lawfully established and operating in Vietnam and implementing programs and projects. Complying with legal provisions on operation, finance management, accounting and auditing;

b/ For state policy banks and financial or credit institutions assigned by the Prime Minister to implement policy credit programs or targeted credit programs of the State:

Reaching the minimum capital adequacy ratio as stipulated by the Government or the State Bank of Vietnam.

3. For loans or bonds:  

a/ Being within the government guarantee limit approved by the Prime Minister under Article 5 of this Decree;

b/For foreign loans and international bonds:

- Being within the limit for foreign commercial loans registered with the State Bank of Vietnam;    

- The loan currency is freely convertible;

- Satisfying the conditions on international bond issue under regulations on international bond issue.

c/ For domestic loans and bonds:

- Satisfying the conditions on domestic bond issue under regulations on domestic bond issue;

- Bonds issued by state policy banks the Vietnam Development Bank and the Social Policy Bank) being guaranteed by the Government under Prime Minister-approved plans on capital raising and lending under social policies;

- Bonds issued by enterprises to raise funds for investment projects under Prime Minister ­assigned tasks being guaranteed by the Government.

Article 8. Guarantee level

The guarantee level must not exceed 80% of the total investment of a program or project, which includes all expenses related to the loan, except the case provided at Point f, Clause 2, Article34 of the Law on Public Debt Management.

For an enterprise with foreign share which implements project entitled to government guarantee under Article 32 of the Law on Public Debt Management, the guarantee is only provided for the part of the loan in proportion to the liability of the Vietnamese party in the enterprise.

Article 9. Guarantee application dossiers

1. The lender’s written request for government guarantees to the borrower; and the borrowed or the bond issuer's written request for government guarantee.

2. Documents on legal status, including the enterprise establishment decision or the business registration certificate of the investor of the program or project.

3. Investment decision enclosed with the project gassier made current regulations.

4. The plan on borrowing or bond issue and plan on loan use and repayment, which clearly identifies:

a/ Investment capital source (including owner capital and borrowed capital);

b/ Feasibility of borrowing conditions for the loan or bonds to be issued;

c/ Solvency of the program or project.

5. The lender's offers, enclosed with the draft loan agreement or the bond issue plan and dossier.

6. Audited financial statements for the latest three years. For an enterprise that has operated for less than three years, a written commitment of the owner representative, the owner or the parent company to guaranteeing the enterprise's solvency is required.

This written commitment aims to guarantee debt payment for the guaranteed enterprise when it meets repayment difficulties.

7. The written commitment shall be made according to the form provided in Appendix II to this Decree.

Article 10. Order of appraisal and guarantee provision

1. Appraisal of the financial plan of an investment program or project

Within 30 working days after receiving a complete and valid guarantee application dossier from the borrower or the bond issuer under Article 9 of this Decree, the Ministry of Finance shall appraise the financial plan and guarantee application dossier in terms of:

a/ Objects and type of the program or project, ensuring satisfaction of the conditions specified in Articles 32 and 33 of the Law on Public Debt Management, and in Articles 6 and 7 of this Decree;

b/ The financial plan of the program or project using the loan or bond capital. Appraisal methods are provided in Appendix I to this Decree;

c/ For a key project or work or an urgent major project of special significance to national socio-economic development for which the investment policy has been decided by the National Assembly or the Prime Minister; or a commercial loan accompanied with a non­refundable aid or an ODA loan to constitute a funding source as syndicate credit (project already designated according to accompanying funding source), the Ministry of Finance shall propose the Prime Minister to provide guarantee based on the financial plan of the approved program or project.

2. After conducting the appraisal, the Ministry of Finance shall report such appraisal to the Prime Minister for decision on guarantee provision.

3. Negotiation on the loan or bond issue agreement, the letter of guarantee and legal opinions

a/ After obtaining the Prime Minister's in-principle approval for government guarantee, the guaranteed shall negotiate the loan or bond issue agreement, with the participation of the Ministry of Finance. For a foreign loan or international bond issue, the Ministry of Justice's participation is required.

At least 3 working days before negotiating legal dossiers related to the loan or bond issue, the guaranteed shall provide the Ministry of Finance and the Ministry of Justice with the following documents: the draft loan or bond issue agreement; the signed commercial contract and the draft letter of guarantee.

For a domestic loan or bond issue, the letter of guarantee shall be made according to the form provided by the Ministry of Finance. For a foreign loan or international bond issue, these documents enclosed with draft legal opinions shall also be submitted to the Ministry of Justice.

The Ministry of Finance shall assume the prime responsibility for negotiating the letter of guarantee and the Ministry of Justice shall assume the prime responsibility for negotiating legal opinions (if any) for the loan or bond issue. After being agreed upon, the letter of guarantee shall be submitted by the Ministry of Finance to the Prime Minister for approval.

b/ Agreement signing: After negotiations on the loan or bond issue agreement are successfully completed, the guaranteed shall submit this agreement to a competent authority for approval and signing;

c/ Finalization of the guarantee "provision dossier: After the loan or bond issue agreement is signed, the guaranteed shall provide the Ministry of Finance with this agreement and a written commitment certified by its managing agency (if any), made according to the form provided in Appendix II to this Decree for finalization of the guarantee dossier.

4. Approval by the Prime Minister

Based on the Ministry of Finance’s report, the Prime Minister shall consider and decide:

a/ To approve the letter of guarantee and assign the Ministry of Finance to provide
guarantee;  

b/ To assign the Ministry of Justice to give legal opinions on the foreign loan or international bond issue agreement, the letter of guarantee, the guarantor and the guaranteed, for a foreign loan or international bond issue;

c/ To assign the Ministry of Foreign Affairs to coordinate with the Ministry of Finance in authorizing an appropriate overseas Vietnamese representative agency or approving an institution to receive the procedural dossier when legal procedures under the foreign loan or international bond issue agreement require a recipient of such procedural dossier;

d/ To approve the guarantee charge for the domestic or overseas loan or bond issue.

5. Issuance of a letter of guarantee

a/ Issuance of a letter of guarantee: After the guarantee provision dossier is completed, based' on the Prime Minister's approval of the guarantee ^provision, the Ministry of Finance shall issuing letter of guarantee.

The letter of guarantee shall be issued only once for loans or bond issue for the program or project,  or issued for each loan or bond issue under the Prime Minister's decision, but must not  exceed the total borrowing or issue level approve3?ry the Prime Minister for that program or project.

For a foreign loan or international bond issue: The letter of guarantee shall be issued in four (4) originals, of which one (1) shall be kept by the Ministry of Finance in the dossier, one (1) by the guaranteed, one (1) by the Ministry of Justice, and one (1) sent to the lender or the principal underwriter of bond issue. For a domestic loan or bond issue, the letter of guarantee shall be issued in three (3) originals, of which one (1) shall be kept by the Ministry of Finance in the dossier, one (1) by the guaranteed and one (1) sent to the lender or the principal under writer of bond issue;

b/ For a foreign loan or international bond issue, the guaranteed shall send to the Ministry of Justice a document enclosed with the official letter of guarantee already deposited at this Ministry for the latter to give its legal opinions on the contents already decided by the Prime Minister.

6. Legal opinions and registration of the foreign loan or international bond issue

a/ Registration of the loan: For a foreign loan or international bond issue, after the letter of guarantee is issued, the guaranteed shall register the loan or bond issue with the State Bank of Vietnam under Clause 1, Article 35 of the Law on Public Debt Management and the State Bank of Vietnam's regulations on management of foreign borrowing and repayment by enterprises;

b/ Certification of the recipient of procedural dossiers: When legal procedures under the foreign loan or international bond issue agreement and the letter of guarantee require a recipient of procedural dossiers, the Ministry of Finance shall coordinate with the Ministry of Foreign Affairs in authorizing an appropriate overseas Vietnamese representative agency or an institution to receive procedural dossiers for the guaranteed and the Ministry of Finance.

Based on the request enclosed with the authorization form of the Ministry of Finance, the authorized Vietnamese representative agency or institution shall sign for certification a written agreement to act as the recipient of procedural dossiers which shall forward this dossier to the guarantee and send a copy to the Ministry of Finance;

c/ Giving legal opinions on guarantee and the foreign loan or international bond issue agreement: At the proposal of the guaranteed, within 10 working days, the Ministry of Justice shall give its written legal opinions in two (2) originals, of which one shall be sent to the guarantee and one kept by the Ministry of Justice.

Article 11. Contents of a letter of guarantee

1. A letter of guarantee must contain the following details:

a/ The guarantor;

b/ The guaranteed;

c/  References to related commercial contracts and the loan agreement;

d/ Proposed guarantee level and loan currency;

e/ The Ministry of Finance's commitment toward the guarantee to performing the guarantee's obligations and its own obligations;

f/ Benefits and responsibilities of the guarantee;

g/ Validity duration and withdrawal of the letter of guarantee;

h/ The governing law, the agency and place for and the language to be used in the settlement of arising disputes;

i/ Place and date of signing for issuance of the letter of guarantee.

2. Other contents may be agreed upon by the involved parties but must not contravene the Vietnamese law.

3. A letter of guarantee shall be withdrawn as soon as all guaranteed repayment obligations are fulfilled or the guaranteed sends to the Ministry of Finance a written certification that the concerned letter of guarantee has terminated its validity.

Article 12. Guarantee charges

1. Based on the appraisal of financial plans of programs or projects and enterprises" financial situation, the Ministry of Finance shall set specific charge rates for each program or project depending on its risk level, which, however, must not exceed 1.5%/year of the balance of the guaranteed debt. Guarantee charge rates are specified in Appendix III to this Decree.

2. Guarantee charges shall be collected as follows:

a/ A guarantee charge is set in the loan currency, calculated from the date of the first capital withdrawal and paid to the stimulation fund for debt payment under the Finance Ministry's guidance;

b/A guarantee charge is collected on the date of interest payment for the guaranteed loan. At the request of the guaranteed, the guarantee charge during the loan's grace period may be collected when the project is commissioned, but at an interest rate equal to that of the guaranteed loan;  

c/ The guarantee charge shall be collected in the loan currency or in Vietnam dong at the selling rate announced by the Joint Stock Commercial Bank for Foreign Tradeoff Vietnam at the time of charge payment; 

d/ If the guarantee charge payment is delayed, the guaranteed shall bear an interest on the lately paid guarantee charge amount calculated on the number of days of delayed payment. The applicable interest rate is equal to that of the guaranteed loan or bond.      

3. The Ministry of Finance may deduct 1.5% of the total collected guarantee charge amounts to offset expenses for the provision and management of government guarantee and expenses permitted by the Prime Minister.

Article 13. Mortgaged assets

1. Except government-guaranteed loans of or bonds issued by state policy banks, assets formed from government-guaranteed loans may be mortgaged to secure the fulfillment of the borrower's obligations toward the Ministry of Finance in proportion to the ratio of loan forming those assets.

2. Assets formed from government-guaranteed loans may not be used to secure the fulfillment of other civil obligations.

3. Mortgaged assets may neither be sold nor exchange unless it is so agreed by the Ministry of Finance. In case of sale of mortgaged assets, the proceeds from such sale or assets formed from those proceeds will become mortgaged assets in replacement of the sold assets.

4. Registration of mortgage: After the Ministry of Finance issues a letter of guarantee and within b months after the assets are officially receivej5g the guaranteed shall register mortgaged assets as security for government
guaranty according to the law on security transactions.

Article 14. Handling of mortgaged assets

1. When the guaranteed fails to fulfill or fully fulfill the-debt repayment obligations and the Ministry of Finance has fulfilled all those obligations for the guaranteed but the guaranteed is unable to repay the Ministry of Finance, the mortgaged  assets shall be handled to repayment to the Ministry of Finance.

2. Mortgaged assets shall be handled and released under the law on security transactions.

3.Proceeds from the handling of mortgaged assets shall be remitted into the accumulation fund for debt payment to be used as a source for repayment of guaranteed loans.

Article 15. Obligations of the guaranteed

1. To fulfill all obligations of the borrower or bond issuer under the signed loan or bond issue agreement.

2. To register mortgaged assets according to the law on security transactions.

3. At the time the Ministry of Finance considers guarantee provision, the guaranteed shall make commitment that during the validity of government guarantee:

a/ The guaranteed may transfer part or whole of shares or contributed capital of Vietnamese organizations and individuals to foreign investors only after it has fulfilled all debt payment obligations toward the lender (the guarantee) for the remaining debt in proportion to the ratio of shares to be transferred and sends a notice to the Ministry of Finance. Within 15 working days after receiving such notice, the Ministry of Finance shall reply the guaranteed in writing;

b/ Owners of shares or contributed capital of 5% or higher of the actually contributed charter capital shall jointly make a written commitment to holding at least 65% of the actually contributed charter capital throughout the validity of the guarantee. The enterprise (the guaranteed) shall register a list of such shareholders and capital contributors at a securities exchange or a securities trading center under the Ministry of Financed guidance.

When an investor named in the registered list wishes to transfer its share or contributed capital to another investor outside this list, the latter must satisfy criteria on financial capacity approved by the Ministry of Finance.

An enterprise that issues additional equity capital or calls for additional contributed capital shall register additional investors to ensure the maintenance of the committed capital.

c/ In special cases, the Ministry of Finance may propose the Prime Minister to consider and decide not to apply the commitments specified at Points a and b of this Clause.

4. To create conditions for the Ministry of Finance to inspect the program or project implementation when necessary.

5. If the guaranteed fails to fulfill or fully fulfill its debt payment obligations upon debt maturity, it shall notify such in writing to the Ministry of Finance at least 45 days before the due date of the debt, clearly stating the reasons for its incapability to fulfill its obligations and committing to refunding the debt amounts to be paid by the Ministry of Finance on its behalf plus all expenses actually arising in the debt payment. If the guaranteed fails to notify in advance to the Ministry of Finance of its difficulties in fulfilling its debt obligations, causing direct damage to the state budget, it shall compensate all material damage to the state budget.

6. Before having its debt paid on its behalf, the guaranteed shall sign a compulsory lending agreement under the following specific conditions:

a/ Lending interest rate: The lending interest rate is the interest rate set in the loan or bond issue agreement. The interest duration is counted from the date the Ministry of Finance pays the debt for the guaranteed to the date the Ministry of Finance recovers such amount;

b/ Lending term: The compulsory lending term is considered and decided by the Minister of Finance depending on each project's solvency, but must not exceed five years;

c/ The lending source comes from the accumulation fund for debt payment under Point d. Clause 1, Article 36 of the Law on Public Debt Management.

7. When the guaranteed breaches its commitments stated in the compulsory lending agreement for 3 consecutive periods, in addition to requirements on mortgaged assets under this Decree, it shall open a special account and transfer all its revenues into that account to guarantee prioritized payment of the government-guaranteed loan. The balance of the special account must at least equal 100% of the payable amount of the subsequent debt payment period and must be maintained constantly for a full year. Past this time limit, if the guaranteed strictly fulfils its commitments, the application of that account will be cancelled.

Article 16. Assignment or transfer of guaranteed obligations

1. The assignment or transfer of government-guaranteed loans or bonds must be approved by the Ministry of Finance.

2. The assignee or transferee has obligations toward the government-guaranteed loan or bond in proportion to the scope of the assignment or transfer from the guaranteed.      

Article 17. Modification and change of letters of guarantee

1. In the course of guarantee, any changes in the conditions under a loan agreement must be immediately reported in writing to the Ministry of Finance by the guaranteed.

2. If modifications to a loan agreement do not increase the total value of the guaranteed loan, the Prime Minister shall authorize the Minister of Finance to decide and issue a new letter of guarantee or an annex modifying the letter of guarantee.

3. If modifications to a loan agreement increase the total value of the guaranteed loan, the Ministry of Finance shall submit the case to the Prime Minister for decision before issuing a new letter of guarantee or an annex modifying the letter (if guarantee.

Article 18. Handling of breaches of debt payment obligations of the guaranteed

In case the guaranteed is unable to promptly and fulfill its debt payment obligations, leading for the Ministry of Finance's repayment on its behalf:

1. If the guaranteed meets with difficulties leading to its temporary insolvency:

a/ Within debt payment periods, the Ministry of Finance shall request the owner representative or parent company of the guaranteed to pay the debt for the guaranteed. If such representative or company is unable to pay the debt for the guaranteed, the Ministry of Finance may use the accumulation fund for debt payment to pay the debt;

b/ For more than 3 debt payment periods, the Ministry of Finance shall request the owner representative or parent company of the guaranteed (if any) to pay the debt for the guaranteed. If such representative or company is unable to pay that debt or the guaranteed does not have such representative or company, the Ministry of Finance shall request the guarantee's managing agency to conduct inspection and propose and submit remedies to the Ministry of Finance for summarization and reporting to the Prime Minister for decision.

2. If the guaranteed meets with serious difficulties leading to its incapability to pay principal and interest and after the measures specified in Clause 6. Article 15 of this Decree have been taken, the Ministry of Finance shall assume the prime responsibility for and coordinate with the owner agency or the managing agency of the guaranteed in, inspecting and identifying causes and adopting a remedy plan which shall be reported to the Prime Minister for decision on a case-by-case basis.

3. If the guaranteed is completely insolvent, the Ministry of Finance shall report such to the Prime Minister for handling of mortgaged assets under Article 14 of this Decree. If the handling of mortgaged assets is not enough to recover the debt, the Ministry of Finance shall report such to the Prime Minister for handling under law.

4. In all cases of insolvency mentioned above, if the insolvency is due to subjective causes, the Ministry of Finance shall propose the Prime Minister to assign functional agencies to handle under law persons causing such insolvency.

Article 19. Reporting regulations

1. Quarterly and annually, the guaranteed shall submit financial statements to the Ministry of Finance. Annual financial statements must be certified by a state audit agency or an independent auditor. When necessary, the Ministry of Finance may request the guaranteed to report on related issues.

2. Biannual report on capital withdrawal (indicating the date and value of each withdrawal), debt payment and debt balance for each guaranteed loan or bond issue, which shall be made according to the form provided in Appendix IV to this Decree.

3. Biannual report on program or project implementation in the capital withdrawal duration till completion of the construction stage.

4. Report on completion of the construction stage.

5. Report on project evaluation upon its completion.

Article 20. Inspection and supervision

1. The Ministry of Finance shall regularly supervise the performance of the guarantee’s obligations;

2. If the guaranteed shows signs of financial difficulty or fails to pay debts under Article 15 of this Decree, the Ministry of Finance shall inspect the financial status of the project, identify reasons for its insolvency and report remedies to the Prime Minister.

Article 21. Effect

1. This Decree takes effect on April 5, 2011.

2. To annul the Prime Minister's Decision No. 272/2006/QD-TTg of November 28, 2006, promulgating the Regulation on provision and management of government guarantee for foreign loans.

3. For government guarantee provided before the promulgation of this Decree which remains valid, matters arising from letters of guarantee shall be handled under this Decree.

Article 22. Implementation responsibilities

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People's Committees and concerned enterprises, organizations and individuals shall implement this Decree

On behalf of the Government
Prime Minister

NGUYEN TAN DUNG