Thông tư 139/2015/TT-BTC

CIRCULAR

PROVIDING GUIDANCE ON GUARANTEE FOR FOREIGN LOANS ON-LENT BY THE GOVERNMENT

Pursuant to the Civil Code No. 33/2005/QH11 dated June 14, 2005;

Pursuant to the Law on Public Debt Management No. 29/2009/QH12 dated June 17, 2009;

Pursuant to the Government’s Decree No. 163/2006/ND-CP dated December 29, 2006 on secured transactions and the Decree No. 11/2012/ND-CP dated February 22, 2012 on amendments and modifications to several articles of the Decree No. 163/2006/ND-CP;

Pursuant to the Government’s Decree No. 83/2010/ND-CP dated July 23, 2010 on secured transaction registration;

Pursuant to the Government’s Decree No. 78/2010/ND-CP dated July 14, 2010 on on-lending Government’s foreign loans;

Pursuant to the Government's Decree No. 215/2013/ND-CP dated December 23, 2013 on defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

After considering the request of the Director of Department of Debt Management and External Finance;

The Minister of Finance hereby promulgates the Circular on providing guidance on guarantee for foreign loans on-lent by the Government.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application and applicable entities

1. This Circular shall provide guidance on signing loan guarantee contracts; inspecting, supervising and dealing with pledged assets, reporting regime and responsibilities of contracting parties for pledged assets for foreign loans on-lent by the Government in accordance with applicable regulations.

2. This Circular shall apply to on-lending agencies, sub-borrowers and other agencies, organizations or individuals involved in activities of loan guarantee, management and use of pledged assets for foreign loans on-lent by the Government.

Article 2. Interpretation of terms

In this Circular, terms used herein shall be construed as follows:

1. The obligee refers to the Ministry of Finance or the on-lending agency authorized by the Ministry of Finance to perform on-lending activities in accordance with laws, or the organization that acts on behalf of the Ministry of Finance to carry out the practice of loan guarantee.

2. The obligor refers to the sub-borrower, or the organization and individual using their own assets and land-use rights for securing the sub-borrower’s debt obligations in accordance with laws.

3. Loan guarantee contract refers to the on-lending arrangement concluded between the obligee and the obligor to secure the sub-borrower's debt obligations to the Ministry of Finance or on-lending agencies.

4. Pledged asset for foreign loans on-lent by the Government refers to the asset derived from foreign loans on-lent by the Government and/or other assets owned by the sub-borrower, or the organization and individual possessing assets (if any) used as collateral to secure the sub-borrower’s debt obligations in accordance with applicable regulations.

5. Project refers to the enterprise’s program or project for on-lending of Government’s foreign loans.

6. Organization acting on behalf of the Ministry of Finance to carry out the practice of loan guarantee refers to the legal entity competent in performing relevant operations in a secured transaction as stipulated by laws, or assigned to act on behalf the Ministry of Finance to sign loan guarantee contracts, examine, supervise and deal with pledged assets during the process of performing secured transaction operations.

7. Service contract to perform loan guarantee operations refers to the agreement signed between the Ministry of Finance, the obligor and the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations for the purpose of carrying out operations of secured transactions with the obligor in the event of the Ministry of Finance’s direct on-lending.

Article 3. Principles of contract conclusion, inspection and supervision of pledged assets

1. The guarantee for the entire value of foreign loans on-lent by the Government must be agreed upon in the loan guarantee contract.

2. The loan guarantee contract must be registered as a secured transaction with the center for transaction and asset registration affiliated to the national registration agency for secured transactions (the Ministry of Justice), or with competent authorities in accordance with legal regulations on secured transactions, unless otherwise prescribed by law.

3. With regard to assets which have yet to be governed by legal regulations on secured transaction registration, the obligor or the on-lending agency is required to report on application of regulations on secured transaction registration to the Ministry of Finance before submitting such report to the Prime Minister.  

4. Pledged asset used as collateral for foreign loans on-lent by the Government shall be supervised, inspected and handled on the basis of the secured transaction registration certificate issued by the secured transaction registry, or the application for secured transaction registration certified by the secured transaction registry, or the description list of assets registered for secured transactions.  

5. The obligor shall be liable for expenses arising during the process of performing loan guarantee operations and even payments to the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations.

6. The Ministry of Finance or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations, or the on-lending agency, shall inspect and supervise pledged assets in accordance with legal regulations.

7. The value of pledged asset shall be determined according to:

 a) the book value verified by an independent audit company, in the event that the Ministry of Finance directly undertakes loan guarantee operations.

 b) the rules of the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations which are applied to customers having normal credit relationship.   

 In case the value of pledged asset is less than the outstanding debt, the obligor shall be responsible for adding more assets to secure their debt obligations.

8. The pledged asset used as collateral for foreign loans on-lent by the Government shall be provided according to the ratio of credit risks shared between the on-lending agency and the Ministry of Finance. Where the Ministry of Finance solely takes credit risks, it will become the only beneficiary of all pledged asset used as collateral for on-lent loans.

9. If the obligor wishes to use pledged assets for Government’s on-lent foreign loans in secured transactions with the Ministry of Finance or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations to give guarantee to the third party, the obligor shall only be allowed to give guarantee for the value greater than the outstanding debt and shall also be required to adhere to the principle that all obligations to repay debts must be fulfilled and obtain the written consent from the Ministry of Finance prior to commencement.

10. Assignment, transfer of projects or pledged assets from the obligor must obtain the prior written consent from the Ministry of Finance. Assignee or transferee of projects shall succeed all of the obligor’s obligations and liabilities regarding pledged assets.

11. The independent auditing company designated to carry out auditing to determine the value of pledged asset used as collateral for projects must belong to the list of independent auditing companies eligible for auditing public interest units annually updated by the Ministry of Finance in accordance with applicable regulations.

Article 4. Cancellation and termination of pledged assets

Cancellation and termination of loan guarantee contracts for the obligor’s payment obligations must comply with applicable laws.

Chapter II

SPECIFIC PROVISIONS

Section 1. CONCLUSION OF LOAN GUARANTEE CONTRACT, INSPECTION AND SUPERVISION OF PLEDGED ASSETS USED AS COLLATERAL FOR FOREIGN LOANS ON-LENT BY THE GOVERNMENT

Article 5. Finalization and conclusion of guarantee contract and appendix to the contract

1. In the event that the Ministry of Finance undertakes direct on-lending:

1.1. The obligor shall recommend an organization acting on behalf of the Ministry of Finance to perform loan guarantee operations, sign the guarantee contract, inspect and supervise pledged assets used as collateral for on-lent foreign loans on the basis of mutual agreements on the fee for the service provided by this organization and in conformity with requirements stated in Point 1.2 of Clause 1 of this Article.

1.2. The organization acting on behalf of the Ministry of Finance to perform loan guarantee operations, inspect and supervise pledged assets used as collateral for on-lent foreign loans shall be selected if it meets the following requirements:

a) Have sufficient competence in and capability of performing loan guarantee operations, signing guarantee contracts, inspecting, supervising and dealing with pledged assets in accordance with legal regulations.

b) Demonstrate that it is one of the credit institutions qualified to perform banking operations to assist projects for on-lending of the Government’s foreign loans as released by the State Bank in the chosen year, or the preceding year; or is one of the organizations having good financial health and excellent past performance of management of pledged assets used as collateral for loans on-lent by the Government. 

c) Obtain approval from the obligor that then submits the written request to the Ministry of Finance.  

1.3. Conclusion of the service provision contract to perform loan guarantee operations:

a) If the Ministry of Finance accepts the obligor’s aforesaid recommendation, the Ministry of Finance shall carry out loan guarantee operations by taking the following action: The Ministry of Finance and the obligor shall together enter into the service provision contract to perform loan guarantee operations with the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations recommended by the obligor by filing the form stipulated in Appendix 1 hereof. 

b) If the Ministry of Finance refuses the obligor’s aforesaid recommendation, the Ministry of Finance shall send the written response to the obligor and request them to select other organization.

1.4. The loan guarantee contract shall be signed between the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations as stated in Point 1.3 Clause 1 of this Article and the obligor, and shall be executed according to the rules of this organization which are applied to the loan guarantee given by customers having normal credit relationship.

1.5. In some special or particular cases, if it is impossible to authorize the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations, the Ministry of Finance shall directly perform relevant operations as follows:

a) With regard to assets which have already come into existence, the Ministry of Finance and the obligor shall enter into the loan guarantee contract by adopting the form given in the Appendix 2 hereof on the basis of the confirmation of the book value of assets used as collateral for loans provided by an independent auditing company under the provisions of Clause 11 Article 3 hereof.

b) With regard to assets which will be formed in the future:

(i) The Ministry of Finance and the obligor shall mutually enter into the contract for collateralization of assets formed in the future by adopting the form given in Appendix 3 hereof.  

(ii) The Ministry of Finance and the obligor shall mutually agree on the appendix to the contract for collateralization of assets formed in the future by adopting the form given in Appendix 4 hereof which is relevant to the actual progress of formation of these assets from Government-backed loans.

c) The obligor shall be liable for expenses arising during the process of performing loan guarantee operations (including inspection, supervision and handling of pledged assets) under the provisions of Clause 5 Article 3 hereof.

2. In the event that the Ministry of Finance authorizes an on-lending agency to perform on-lending operations:

a) The loan guarantee contract shall be signed between that on-lending agency and the obligor as agreed upon in the contract for on-lending authorization entered into between the Ministry of Finance and the on-lending agency, and conform to the rules of the on-lending agency applied to pledged assets of customers having credit relationship with this on-lending agency.

b) The fee for execution of secured transaction operations shall be included in the on-lending service charge paid to the on-lending agency and there shall not be any extra payments as stipulated hereby. 

Article 6. Time of conclusion of guarantee contract

1. The loan guarantee contract or the contract for collateralization of assets formed in the future shall be signed between the obligee and the obligor within the period which is not later than the first  disbursement of the on-lent loan.

2. If it is impossible to sign the loan guarantee contract or the contract for collateralization of assets formed in the future prior to the first disbursement of the on-lent loan on objective grounds, involved parties shall be responsible for reporting to the Ministry of Finance to clearly state the reasons. Such parties shall conclude the contract prior to the second loan disbursement.

3. If these parties fail to sign the loan guarantee contract or the contract for collateralization of assets formed in the future under the provisions of Clause 2 of this Article, the obligee shall report to the Ministry of Finance to temporarily suspend the next loan disbursement of the borrower (the obligor), or to competent authorities for consideration and decision-making purposes.   

Article 7. Procedure for loan guarantee applied to loans to which the Ministry of Finance directly gives guarantee

1. With regard to assets which have come into existence:

a) Within 10 working days after finalization of the loan guarantee contract, the obligor shall carry out the secured transaction registration.

b) Within 05 working days of receipt of the secured transaction registration certificate issued by the secured transaction registry, or the written request for secured transaction registration certified by the secured transaction registry, the obligor shall submit it to the Ministry of Finance.

2. With regard to assets which will be formed in the future:

a) Within 10 working days after conclusion of the contract for collateralization of assets formed in the future, the obligor shall carry out the secured transaction registration.

b) Within 05 working days of receipt of the secured transaction registration certificate issued by the secured transaction registry, or the written request for secured transaction registration certified by the secured transaction registry, the obligor shall submit either to the Ministry of Finance.

c) The appendix to the contract for collateralization of assets formed in the future in the previous year shall be signed between the Ministry of Finance and the obligor on the basis of the confirmation received from the independent auditing company (if there is something new in the contract) and shall be made perfect by June 30 of the following year. 

d) After assets have passed the official acceptance test, the obligor shall send the description list of all assets to the Ministry of Finance.

dd) The obligor shall register any modification to secured transaction contents if there is any discrepancy against those provided at the time of secured transaction registration for assets formed in the future after the abovementioned acceptance test has been completed.

e) Within 05 working days of receipt of the amended secured transaction registration certificate issued by the secured transaction registry, or the written request for secured transaction registration certified by the secured transaction registry, the obligor shall submit either to the Ministry of Finance.

3. The Ministry of Finance shall be responsible for preserving documents relating to loan guarantee contracts, secured transactions and records of inspection and supervision of pledged assets used as collateral for loans.

Article 8. Procedure for loan guarantee for loans on-lent through the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations

Within 10 working days after finalization and conclusion of the contract for collateralization of assets for foreign loans on-lent by the Government, the obligor shall collaborate with the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations in applying for the secured transaction registration.

1. The on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations shall be responsible for preserving documents relating to loan guarantee contracts, secured transactions and records of inspection and supervision of pledged assets used as collateral for loans.

2. Within 05 working days of receipt of the written confirmation of secured transaction registration from competent authorities, the on-lending agency, or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations, shall provide the Ministry of Finance with one copy (sealed by the sender) of the signed loan guarantee contract and the certificate of secured transaction registration issued by the secured transaction registry, or one copy (sealed by the sender) of the written request for secured transaction registration accredited by the secured transaction registry, enclosing the list of assets which have already come into existence (if any) for the purpose of collaboration on monitoring and supervision activities.  

Article 9. Reporting regime

1. Periodic report:

a) Before April 15 every year, the obligor shall be responsible for sending the review report on pledged assets revised by December 31 of the previous year to the Ministry of Finance (if the Ministry of Finance is directly carrying out on-lending) enclosing the confirmation provided by the independent auditing company by completing the form given in Appendix 4 or Appendix 5 hereof, or to the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations (if the Ministry of Finance grants authorization) by completing the form stipulated by the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations.

b) Before April 30 every year, the Ministry of Finance (if the Ministry of Finance is directly carrying out on-lending) or the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations (if the Ministry of Finance grants authorization) shall be responsible for sending the Ministry of Finance the general report to review pledged assets managed under their delegated authority by December 31 of the previous year which is categorized by specific projects and funding sources by adopting the form given in Appendix 5 or Appendix 6 hereof.

2. Ad-hoc report:

Whenever necessary or when the value of pledged asset have been changed as against the latest report, the obligor shall be responsible for reporting to the Ministry of Finance (if the Ministry of Finance is directly carrying out on-lending) or the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations ((if the Ministry of Finance grants authorization) on changes regarding pledged assets according to the form given in Appendix 5 or Appendix 6 hereof.

Section 2. HANDLING OF PLEDGED ASSET

Article 10. Handling of pledged asset

1. Handling of pledged asset shall comply with the Government’s Decree No. 163/2006/ND-CP dated December 29, 2006 on secured transactions and the Decree No. 11/2012/ND-CP dated February 22, 2012 on amendments and modifications to several articles of the Decree No. 163/2006/ND-CP and other documents stating modifications or amendments (if any).

2. The obligee shall be entitled to deal with pledged assets for the purpose of collecting debts on behalf of the Ministry of Finance.

Article 11. Pledged asset handling agency

1. As for the Government’s foreign loans directly on-lent by the Ministry of Finance, the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations or a proper organization authorized by the Ministry of Finance (if the Ministry of Finance directly signs the loan guarantee contract) shall be responsible for resolving difficulties that may arise during the process of handling pledged assets.

2. As for the Government’s foreign loans of which the Ministry of Finance authorizes the on-lending agency to take control, the on-lending agency shall suggest the plan to deal with pledged assets to the Ministry of Finance, or directly handle pledged assets under the delegated authority of the Ministry of Finance and report to the Ministry of Finance.

Article 12. Use of revenues derived from the work of handling pledged assets

Revenues derived from the work of handling pledged assets shall be priorly used for the followings:

1. Repaying debts:

a) Advances taken out by the obligor from the accumulation fund for repayment of debts incurred from foreign loans on-lent by the Government;

b) Debts owed to the State budget which directly relate to foreign loans on-lent by the Government;

2. Repaying debts incurred from the unpaid on-lending fee relating to loans.

3. Payments refunded to the obligor (if the revenue has not been used up).

Section 3. RESPONSIBILITIES OF INVOLVED PARTIES

Article 13. Responsibilities of the obligor

1. Apply for secured transaction registration for the loan guarantee contract under which the Government on-lends its foreign loans as prescribed by laws and in conformity with the service contract stated herein.

2. Carry out the periodic assessment or checking of pledged assets in accordance with legal regulations on accounting and report on the result of assessment and checking to the Ministry of Finance, the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations or the on-lending agency; collaborate with the Ministry of Finance, the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations or the on-lending agency to implement procedures regarding the handling of pledged assets in the event that these assets need handled to recover debts from foreign loans on-lent by the Government.  

3. Pay all expenses arising from loan guarantee operations during the process of secured transaction registration, inspection and supervision of pledged assets and handling of pledged assets.

4. Take out insurance policies to protect pledged assets in accordance with laws.

5. Provide accurate, authentic and timely information about the current condition of pledged assets for the obligee and comply with regulations under which reports must be sent in an adequate and on-time manner in accordance with provisions laid down in this Circular.

6. Use assets formed from foreign loans on-lent by the Government to serve the right purpose.

Article 14. Responsibilities of the Ministry of Finance

1. Check, supervise pledged assets used as collateral for the Government’s foreign loans directly on-lent by the Ministry of Finance, and directly sign the loan guarantee contract.

2. Report to the Prime Minister in some particular cases in which it is impossible to register pledged assets in accordance with laws.

3. Select or approve the plan of the obligor to select financial, credit institutions or proper organizations to perform loan guarantee operations and deal with issues that may arise during the process of handling pledged assets.  

4. Report to the Prime Minister on the plan to deal with pledged assets to recover on-lent loans in the event that subborrowers become insolvent.

Article 15. Responsibilities of the on-lending agency

1. Undertake responsibilities in a sufficient and timely manner as stated in the on-lending authorization contract, and supervise, inspect and propose measures to deal with pledged assets used as collateral for foreign loans on-lent by the Government.   

2. Send periodic and ad-hoc reports to the Ministry of Finance on the current condition of pledged assets used as collateral for foreign loans on-lent by the Government under the provisions of Article 9 hereof and assessment of risks relating to pledged assets (if any).

3. Propose plans to deal with pledged assets used as collateral for foreign loans on-lent by the Government if the agency is required to carry out handling of pledged assets.

Article 16. Responsibilities of the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations

1. Undertake responsibilities in a sufficient and timely manner as stated in the contract to perform loan guarantee operations, and supervise, inspect and propose measures to deal with pledged assets used as collateral for foreign loans on-lent by the Government.  

2. Send periodic and ad-hoc reports to the Ministry of Finance on the current condition of pledged assets used as collateral for foreign loans on-lent by the Government under the provisions of Article 9 hereof and assessment of risks relating to pledged assets (if any).

3. Propose plans to deal with pledged assets used as collateral for foreign loans on-lent by the Government if the agency is required to carry out handling of pledged assets.

Section 4. VIOLATION SETTLEMENT

Article 17. Settlement of violations committed by the obligor

If the obligor fails to comply with regulations on loan guarantee under the provisions of this Circular applied to foreign loans on-lent by the Government, the Ministry of Finance shall report to the Prime Minister to take one or several of the following measure(s):

1. Temporarily suspend the loan disbursement if the obligor is withdrawing their loan funds.

2. Prematurely recover all of disbursed loan amounts.

3. Refuse to approve new loans taken out by the defaulting obligor.

4. Apply other relevant measures in compliance with legal regulations.

Article 18. Settlement of violations committed by the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations

If the on-lending agency or the organization acting on behalf of the Ministry of Finance to perform loan guarantee operations fails to comply with regulations and fulfill all responsibilities agreed upon in the service contract, the Ministry of Finance shall report to the Prime Minister to take one or several of the following measure(s):

1. Refuse to grant such agency or organization authorization to on-lend new loans or to select such agency or organization to act on behalf of the Ministry of Finance to perform loan guarantee operations in respect of other projects.

2. Refuse to approve such agency or organization to be designated as a bank funding new projects.

Chapter III

IMPLEMENTARY PROVISIONS

Article 19. Effect

1. This Circular shall enter into force from November 1, 2015.

2. If documents mentioned in this Circular have been amended, supplemented or replaced, regulations laid down in documents after such amendment, supplementation or replacement shall prevail.

Article 20. Transitional provisions

1. Foreign loans on-lent by the Government as agreed upon in the on-lending arrangement or the on-lending authorization contract before the effective date of this Circular as stipulated by laws on sub-borrowing foreign loans on-lent by the Government at the date of signing the on-lending arrangement or the contract to grant authorization to on-lend loans which are not secured by assets shall continue to comply with the laws that take effect at the date of entering into the arrangement or the on-lending authorization contract. 

2. If foreign loans on-lent by the Government have been approved for on-lending before the effective date of this Circular but the loan guarantee contract has not been signed, finalization and conclusion of the guarantee contract shall be carried out in conformity with regulations laid down in this Circular and under the guidance of the Ministry of Finance. 

Article 21. Implementation

1. The Ministry of Finance, the on-lending agency, the sub-borrower, and involved agencies, organizations or individuals, shall be responsible for complying with regulations enshrined in this Circular.

2. In the course of implementation, if there is any difficulty that may arise, agencies, organizations or individuals concerned shall send timely feedbacks to the Ministry of Finance for consideration and resolution purposes./.