The Decree 78/2010/nd-Cp: On Lending Source Loans Of Foreign Governments

Original Language Title: Nghị định 78/2010/NĐ-CP: Về cho vay lại nguồn vốn vay nước ngoài của Chính phủ

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Pursuant to the law on organization of the Government of 25 December 2001;

Pursuant to the law on State budget of 16 December 2002;

Pursuant to the law on public debt management, June 17, 2009;

Considering the recommendation of the Minister of finance DECREE, chapter I GENERAL PROVISIONS article 1. Scope and objects 1. This Decree regulates the conditions, processes, procedures and responsibilities of the agencies, organizations, individuals in the lending source loans of foreign Governments.

2. This Decree shall apply to agencies, organizations, individuals related to loan activities back foreign capital from the Government.

Article 2. Explanation of terms In this Decree, the terms below are interpreted as follows: 1. "foreign loan agreement" is the agreement, contract, loan agreement signed on behalf of the State, the Government or the Ministry of finance signed under the provisions of the law to the foreign lender.

2. "loan agreement" is the agreement for the loan or the loan agreement signed between the Ministry of finance supporting or lending institutions back to the borrower for the loan back foreign capital from the Government.

3. "the contract authorized lending again" is the agreement signed between the Ministry of finance with the lending agencies again (the case of the Ministry of finance is not the lending institutions) to authorize lending institutions back on behalf of the Ministry of finance to manage the use of the loan capital, loan recovery (including root , interest rates, fees) to reimburse the State budget.

4. "accounting rates" are the rates due to the Ministry of Finance announced refers to accounting and reporting of revenues and expenses in foreign currency of the State budget.

5. "commercial interest reference-Commercial Interest Reference Rate (CIRR)" is commercial interest referenced by the Organization of economic cooperation development (OECD) published monthly on electronic information page of this Organization (www.oecd.org).

6. "Fees" are fees that a borrower must pay in addition to the interest for loans, lending institutions for foreign loans and parties for the bank service.

7. "grace period" is the period of time starting from the date of signing the loan agreement or the agreement for the loan repayment date back to the first origin as defined in the loan agreement or loan agreement.

Chapter II TERMS and CONDITIONS of the LOAN BACK to article 3. The loan value back to 1. The value of loans again recorded in the loan agreement is determined on the basis of the value of foreign loan agreements for each program, project. In the case of foreign loan agreements signed for multiple projects but does not specify the allocation for each programme, the project, the value of the loans is determined based on the loan allocation decisions of the Government.

2. The value of getting the actual debt is worth is estimated according to each exit.

Article 4. Loan money back 1. ODA loans: back lending the borrower can choose the currency of the loan back as Vietnam or in foreign currency loans foreign radicals demand loan and repayment ability. The borrower did not switch back after the loan contract signed the loan agreement. Exchange rate from foreign currency to Vietnam Bronze in case get loans back in Vietnam is determined as follows: a) the case of withdrawal of foreign loans in foreign currency and sold currency Vietnam Dong, the exchange rate is the exchange rate in the respective foreign currency purchases by the Bank serving at the time of withdrawal of foreign loans.

b) where withdrawal of foreign loans in foreign currency in the form of a special account, the account used for the advance of a program, project, the exchange rate is the exchange rate in the respective foreign currency purchases by the Bank serving at the time of withdrawal of foreign loans.

c) cases of withdrawal of foreign loans in foreign currency in the form of special account, advance accounts for many programs, projects using a common account, the exchange rate is the exchange rate buy foreign currency in the Bank's respective service in time to withdraw money from the account.

d) where the withdrawal of foreign loans in foreign currency to pay directly to contractors, suppliers, the exchange rate is the exchange rate by Accounting Finance Ministry announced at the time of withdrawal of foreign loans.

2. commercial loan back lending, borrowing foreign incentives: the borrower get back the debt in foreign currency loans foreign origin, excluding special cases due to the Prime Minister to decide.

3. For the people's Committee, the central cities (hereafter referred to as the provincial people's Committee) lending (applying to all types of resources): the money is back to the original currency loans to foreign borrowers.

Article 5. Debt collection coins 1. ODA loan back loans: debt collection coins is lending money again. Case the borrower get back the debt in foreign currency and charged in Vietnam, again lending institutions apply accounting rates due to the Ministry of finance regulation at the time of repayment or rates of return lending agency agreement with the lending provisions in the loan agreement back to recover the debt.

2. review lending loan and commercial loan incentives: debt collection coins is lending money again. Case the borrower get back the debt in foreign currency and charged in Vietnam, again lending institutions apply the same sales rate of exchange of bank service or of joint stock commercial bank for foreign trade of Vietnam in the absence of the corresponding rates of the Bank serving at the time of repayment to debt collection.

Article 6. The date the debt 1. With respect to the account funds made in the form of letters of credit (L/C), direct payment, refund on a borrower back on debt: with the loan Agency is again on the exit side of foreign loans.

2. With regard to the terms of the exit follow the form of the special account, account advance: a) the case of many projects, the program in the same foreign loan agreements and the use of a particular account or account on advance borrower get back the debt with lending agencies again is on exit from this account for each program , project. Interest arising from foreign lenders about navel withdrawal day special account or accounts on to advance funds from this account for each program, the project will do the State budget payments to the foreign lenders under the provisions of the loan agreement.

b) loan agreements foreign case only for a program, project, and use a special account or accounts on the advance of the loan back debt with lending institutions back on foreign lending party is transformed into capital accounts.

3. notification of disbursement base lender or proof of payment from the special account, the account of the advance, the Finance Ministry reported or established through tri recorded record revenue spent on loan agencies back the value of disbursed according to the disbursement date, for each programme, the project.

4. notice notices or base record currency recorded genus of the Ministry of finance, lending institutions have the responsibility to notify the borrower to receive debt relief. Case the borrower does not agree with the figures reported or recorded record revenue branch of the Ministry of finance, lending agencies again reported immediately to the Ministry of finance to handle.

Article 7. Lending rate back to 1. Commercial loan back lending, loan incentives: the interest rate for loans by foreign lenders interest.

2. review the ODA loan lending a) loans with loan case currency back to the original foreign loans in foreign currency, the interest rate for loans by 2/3 (two thirds) of commercial interest reference corresponding to the loan term at the time of determining the conditions for the loan. Case level 2/3 commercial interest referenced above is lower than interest rates on foreign loans, the interest rate for loans by foreign lenders interest.

The case for lending in foreign currency with no commercial interest reference lending interest rates, again by a foreign loan interest rates.

b) Bronze Vietnam back loans: the interest rate for the loan is determined by the interest rates for loans in foreign currency stipulated in art. 2 this plus the rate risks exchange rate between foreign currency and to Vietnam. The Ministry of finance, in cooperation with the State Bank of Vietnam calculated and published rates risk levels between the Vietnam and 3 main currencies as the dollar, EURO and JPY. The case of the Forex market has large fluctuations, the Finance Ministry can announce rate risks exchange rate right now in the States apply. The case of the original loan agreement in foreign currencies other than the three types of exchange rate risk, the level of this application is the level of risk of the dollar exchange rate.

c) some areas enjoy preferential interest rates by 30%, the interest rate for lending in foreign currency or Vietnam respectively, but not lower interest rates on foreign loans.

Directory of departments, sectors enjoying preferential interest rate due to the Prime Minister. The Ministry of finance, in cooperation with the Ministry of planning and investment, the Prime Minister issued the industry category, the field enjoy preferential interest rates.

3. For the provincial people's Committee of the loan: the interest rate for loans by foreign lenders interest.

Article 8. Interest dates 1. Commercial loan back lending and loan incentives: interest loan dates back to slow and interest rates charged are calculated according to the provisions of the loan agreement.

2. review the ODA loans: lending of loans and interest on interest rates slowly charged is calculated on the actual number of days of use of capital and on the basis of a 360-day year.

Article 9. Slow interest rate charged the case not repaying any debts would include interest, fees and original, the other relevant costs, the borrower must pay a higher interest rate is slow under the two following levels: slow interest rates charged by 150% interest loans back provisions in the loan agreement and the slow interest rate charged to the provisions in the loan agreement.

Article 10. Fees the borrower must pay the following fees: 1. loan Fees:


a) Is lending agency fee again (including the Ministry of finance in the case of The direct financial re-lend) currency of the borrower back to cover the costs of services in the management and recovery of loans again. The case of ODA loans back lending, lending rate by 0.2% per year calculated on the original debt. The case for commercial loan lending, loan incentives, loan rate again by 0.25% per year calculated on the original debt. Agency costs and fees payable to the Agency in the particular case is stipulated in annex I of this Decree.

b) do not apply in the case of loan fees for the provincial people's Committee of the loan back.

c) the management and use of fees for loans made under the financial mechanism of the use of the loan fees. The management and use of the charge of the Ministry of finance loan made under the provisions of the Prime Minister.

2. Fees and related costs due to foreign currency lender: the borrower is responsible for paying back the fees and costs related to the foreign lenders in addition to foreign loan agreement including the management fee, fee charges, committed funds, insurance premiums, fees and other costs. The borrower back payment of fees and costs for the lending agency to pay for the Finance Ministry, or direct payment to the foreign lender if authorized by Ministry of finance.

3. Types of service fees by the Bank servicing collection: the borrower directly charged for the Bank served as prescribed by the Bank.

Article 11. Loan term back 1. Term and grace period for loans with term and grace period stipulated in the loan agreement in the following cases: a) loans back commercial loans, loan incentives.

b) For provincial people's Committee of the loan back.

c) For financial institutions, credit lending ODA loan to implement the program, the credit limit.

2. For ODA loan lending business to implement programs, investment projects: a) the original repayment period by time in the project (feasibility study report) be approved by the authorized but not to exceed the time limit stipulated in the loan agreement.

b) grace period by period of construction until the project was put into operation in the project (feasibility study report) be browsed but not beyond the grace period stipulated in the loan agreement.

Article 12. Secured loan 1. The borrower must use the measures secured loan under the provisions of the law to ensure offset credit risks and other risks may occur, except in the case of exempt secured loan as defined in paragraph 2 of this Article. Secured property includes assets from the Government's loan and/or other property under the provisions of the law.

2. Do not require loan guarantee in the following cases: a) to the provincial people's Committee of the loan back.  

b) For financial institutions, credit lending.

c) cases are prime allows the trust to apply or be free of secured loan.

3. Commitment to ensure the loan lending agreement. Lending institutions have the responsibility to ask the lenders complete the legal records of loan guarantee under the provisions of the law.

4. Lending institutions have the responsibility to manage, handle collateral and loan guarantee for the loan of the Government according to the rule of law.

Article 13. Repayment before maturity 1. For ODA loan back loans: borrower may make the repayment before maturity. The borrower must notify in writing a minimum of 45 days prior to make repayments ahead for lending institutions and the Ministry of finance and the Ministry of Finance (Ministry of finance credit risk) or lending institutions (case lending institutions back the bear credit risk) approved and not have to pay the fee before the repayment date.

2. for commercial loan back lending, loan incentives: If in agreement on foreign loans have terms of repayment before maturity allows the borrower may make the repayment before maturity. The borrower must notify in writing a minimum of 45 days prior to make repayments ahead for lending institutions and the Ministry of finance and the Ministry of Finance (Ministry of finance credit risk) or lending institutions (case lending institutions back the bear credit risk) to approve charges and repayment before maturity in accordance with the agreement foreign loans (the case of the Ministry of finance credit risk) or according to the provisions of the loan agreement (case lending institutions back the bear credit risk).

Article 14. Order of precedence of loan repayment for the original payments, interest rates, and fees stated in the loan agreement, the loan is repaid in the order of priority on a par with any loan of the same type. In case the borrower only pays part of the obligation to limit, the order to favor debit as follows: fine slow interest rate charged, interest rates expired, interest rates, lending fees, overdue root, root to the limit.

Article 15. Disclaimer not all complaints, disputes relating to commercial contracts by the Contracting Parties to settle the complaint, and this dispute will not exempt the borrower for any obligations under the loan agreement.

Article 16. Assignment 1. The borrower is not entitled to transfer, transfer of debt obligations arising in relation to the loans back, unless approved in writing by the Ministry of Finance (the case of the Ministry of finance credit risk) or lending institutions (case lending institutions back the bear credit risk).

2. With regard to the lending company is 100% state capital when conducting transition of ownership (privatization, merger, transformed into a limited liability company members, delivered to employees, to sell), the decision to convert the business owners must ask reception agencies loan debt back to sign debt with lending institutions and made repayments accordingly loan agreement signed back in.

Article 17. Applied conditions for lending 1. The Ministry of finance to apply conditions for lending for each loan back to the provisions of this Decree.

2. where the lender requires foreign loans under conditions other than the provisions of this Decree, or other special circumstances, the Ministry of finance consultation related agencies, reported the prime consideration, decision.

3. The conditions for the loan again determine for each program, the project does not change throughout the loan period, except in the cases referred to in paragraph 2 Article 23 of this Decree.

Chapter III PROCEDURAL, PROCESS LOANS back thing 18. The loan agencies and lending institutions selection back 1. The Ministry of finance directly made the lenders back for: a) financial institutions, credit to perform non-credit programs have specific binding. Financial institutions, credit was manually selected for in the end, the decision to loan the borrower interest rates again eventually and good credit risks.

b) provincial people's Committee.

c) some special projects are prime allows free evaluation of the conditions for the loans and loan guarantees.

2. The Ministry of finance authorized financial institutions, credit lending agency made back in the case: a loan to business) for the implementation of the program, specific investment projects. In this case, the financial institution, credit is not subject to credit risk.

b) To implement the program, the credit limit are binding on the subject, geographical areas, sectors, interest rates for loans and/or other related conditions. Depending on the nature of the program, credit, financial institution, credit may be subject or not subject to credit risk.

3. Choose back lending agency Ministry of Finance selected financial institutions, credit lending agencies do back according to the following criteria: a) Have experience lending programs, investment projects in the field were borrowed back.

b) activity location consistent with your program, project lending.

c) accept the rules of management, recovery of loans, loan fees and reporting in accordance with the law.

d) Are foreign lender approved lending agencies do it again (if foreign loan agreements have provisions).

DD) for ODA loan back lending, priority selection of a Government policy Bank. For commercial loans back lending, loan incentives, choice of commercial banks, credit financial institutions in which the priority banking, financial institutions, credit for the loan project.

4. Lending institutions are entitled to fees for lending as defined in annex I attached to this Decree.

Article 19. Program evaluation, review loan project 1. ODA loan to back lending programs, investment projects and loan agencies back to bear credit risk.

a) lending institutions back to assess the program's financial approach, project loans, the financial capacity of the borrower under regulations on appraisal of lending institutions.

b) during 30 days from the date of receipt of the documents valid for the evaluation, the lending agencies made the evaluation and submit the report results evaluation program, the project for the Ministry of finance to review, determine the conditions for the loan under the provisions of this Decree. During 15 days from the date of the valuation report of the lending institutions, the Ministry of Finance reported on conditions for loans to the borrower and lending again.

2. review the ODA loans under the loan program, the project on investment and lending institutions do not bear the credit risk.

a) to determine the conditions for the loan, the borrower need to provide the following records to the Ministry of Finance:-the text of the Prime Minister allowing use of ODA loans;

-The investment project (feasibility study report) of the project or program has been approved;

-The investment decision of the Authority (if any).


b) during 30 days from the date of the full profile of the borrower, the Ministry of Finance has informed about the conditions for the loan to the borrower and lending again.

3. The case for the financial institutions, credit loans under the program, a credit line) To perform the evaluation and determine the conditions for the loan, credit, financial institutions need to provide the Ministry of Finance (ODA again lending case) or the State Bank (loan case back the loan and commercial loan incentives) the following records financial report:-3 years;

-Financing approach used and repaid the loan on the basis of reference conditions for loans under this Decree.

b) loan loan back case ODA, during 30 days from the receipt of a valid application of the credit financial institutions, the Ministry of finance conducted due diligence and take notice of assessment results and conditions for lending to financial institutions, credit get loan back.

The case for lending loan and commercial loan incentives, during 30 days from the date of application of the financial institution, credit, Bank performs evaluation and assessment results reported to the Ministry of finance. During 15 days from the date of the notice of assessment results of the State Bank of Vietnam, the Ministry of Finance reported on conditions for loans to financial institutions, get loan and credit of the State Bank of Vietnam.

4. For business lending commercial loans, loan incentives.

a) To perform the evaluation of the program, project loans, the borrowers need to provide the records here for review: lending institutions-investment project (feasibility study report) of the project or program has been approved;

-The investment decision of the authority;

-Financial report 3 years (with respect to the business/economic organizations are active); for the case of newly established enterprises or not enough 3 years of operation, they must have the written commitment of the representative of the owner, the owner's or the parent company about the possibility of repayment guarantee; content of the commitment of the representative of the owner, or the owner of the parent company in order to ensure the availability of repayment in the event the borrower changes have difficulty in repayment;

-Financial plan based on the basis of reference conditions for loans under this Decree.

b) during 30 days from the date of the valid documents say enough on the lending agency, made the evaluation and submit the report results evaluation program, the project for the Ministry of finance to review, determine the conditions for the loan under the provisions of this Decree. During 15 days from the date of the valuation report of the lending institutions, the Ministry of Finance reported on conditions for loans to the borrower and lending again.

5. Case for the provincial people's Committee, lending a) To perform the evaluation, the provincial people's Committee should provide the required documents below for the Ministry of Finance:-planning of local budgets in foreign loan agreements;

-Option to use the loan and repay the provincial people's Committee for approval.

b) during 30 days from the receipt of a valid application of the provincial people's Committee, the Ministry of Finance made the evaluation and reported about the results of the evaluation of the ability to repay to provincial people's Committee received loans.

Article 20. Signed authorization to borrow again and again the lending agreement 1. Signed authorization to borrow again when the conditions for the loan is determined by specific back (or be approved by the Prime Minister), within 30 days, the Ministry of finance signed the loan authorization back to the lending institutions on the General principles in the form attached in annex II of this Decree.

2. Signed an agreement for the loan back within 15 days after signing the loan authorization to the Ministry of finance, lending agencies again signed an agreement with the borrower for the loan under the conditions stated in the contract for the loan authorization. After signing the loan agreement, the loan Agency is again sent to the Ministry of finance to release 1st coordination management tracking.

The case of the Ministry of Finance's lending agency, within 15 days from the date the notice of loan conditions for lending, the Ministry of finance signed the loan agreement with the borrower under the terms announced for the borrower.

Article 21. The procedure of getting the debt pursuant to the notice once the exit of the lender or the Bank's notice served on the genus from special accounts, The accounting records financial state budget income and expenditure records for lending institutions to receive and inform the borrower back on debt. The case of the Ministry of finance loans direct borrower get back the debt directly to the Ministry of finance.

Immediately after receiving the notice of withdrawal period which ends of a foreign loan agreements, the Ministry of Finance reported to the Agency for the loan or the borrower back on total capital received the ultimate borrower's debt.

Article 22. Debt collection for lending the borrower made the repayment in full, timely repayment obligations as stated in the loan agreement for the lending agency.

Lending institutions made full repayment, timely repayment obligations as stated in the contract authorized lenders back into the Fund accumulated foreign debt under the guidance of the Ministry of finance. The case of the Ministry of finance authorized lending institutions back pay owed directly to foreign countries, lending institutions only transferred to the Finance Ministry after the rest have made payable to foreign countries.

Article 23. Handling risks 1. With regard to the method for the loan but the loan Agency is not subject to credit risk, in case the borrowers have difficulty not be part or all of the debt and after lending institutions had applied all the necessary sanctions, remedies under the provisions of the law which is still not recovered the debt , lending institutions have the responsibility to check, clearly identify the cause to report the Ministry of finance and the Agency program evaluation project, together with the recommendations to the Ministry of finance to consider, handle or process authority decision.

2. Competent handling of risks: a) the case of the borrowers have difficulty temporarily, the Ministry of Finance allowed the handle towards the repayment schedule rearrangement (circled debt, the repayment duration relaxant) to suit the borrower's repayment ability if the total repayment obligation does not change or the repayment period not to exceed the term of the loan.

b) where the borrower in serious trouble again led to change loan terms (interest rate, the repayment period exceeds the time limit foreign borrowing) or to delete a portion of the debt (origin, interest rates), the Ministry of finance coordinated with Agency of evaluation of programs, projects and other relevant agencies to build process the Prime Minister decided to each specific case.

c) borrower case back completely lost the ability to pay the debt, the Finance Ministry reported the Prime Minister decided to treat with respect to secured property loans back to recover the debt. The following cases when processing loans guaranteed assets back but still not recovered enough of resolve the debt in accordance with the law.

d) in every case of non-repayment, if determined by the subjective cause, Ministry of finance the Prime recommendations delivered to the Agency processed according to law the personal responsibility leads to the situation not to be in debt.

Article 24. Report mode 1. Quarterly, lending institutions have sent financial reports on reviews made the loans back to the programs, projects and plans to recover the loan back in the upcoming quarter.

2. Quarterly, the borrower has the report sent back to the lending institutions, the Ministry of finance about the reviews of implementation of the program, projects using loans and loan repayment plan in the coming quarter.

Chapter IV the TERMS OF IMPLEMENTATION of article 25. Effect 1. The Decree has effect from the date of August 30, 2010. The program, project loans made under the agreement back foreign loans in effect after the effective date of this Decree shall follow the provisions of this Decree. The loan agreement, the loan authorization contract back before the time of the decree to this effect continued to follow the agreements signed.

2. Annuls decision No 181/2007/QD-TTg dated 26 November 2007 Prime Minister's Government issued about the regulation back to the capital, the Government's foreign aid and the rules of the Government, ministries, ministerial agencies, government agency contrary to the content of this Decree.

Article 26. Responsibility of Ministers, heads of ministerial agencies, heads of government agencies, the Chairman of people's Committee of the province, central cities, businesses, organizations, individuals responsible for the implementation of this Decree.

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