Thông tư 35/2012/TT-BTC

CIRCULAR

GUIDING A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO. 75/2011/ND-CP OF AUGUST 30, 2011 ON INVESTMENT AND EXPORT CREDIT OF THE STATE

Pursuant to the Government’s Decree No.118/2008/ND-CP of November 27, 2008 defining the functions, tasks, powers and organizational structure of the Ministry of Finance;   

Pursuant to the Government's Decree No.75/2011/ND-CP of August 30, 2011 on investment and export credit of the State (hereinafter referred to as the Government's Decree No.75/2011/ND-CP);

The Ministry of Finance guides implementation of some contents as follows:

Article 1. Subjects of application

Subjects of application of this Circular include the Vietnam Development Bank (hereinafter referred to as the Development Bank) and other relevant organizations, individuals during the course of implementation of the State's investment and export credit as prescribed in the Government’s Decree No.75/2011/ND-CP.    

Article 2. The plan on investment and export credit of the State

1. In period of elaboration of annual State budget estimate, the Development Bank shall elaborate and report to the Ministry of Finance, the Ministry of Planning and Investment on the annual plan on investment and export credit of the State. The Ministry of Finance shall preside over appraisal of the plan on investment and export credit of the State elaborated by the Development Bank and send to the Ministry of Planning and Investment for synthesizing, and submit to the Prime Minister for decision in the plan on socio-economic development.

2. The plan on investment and export credit of the State annually elaborated by the Development Bank include:

a) Assessment on situation of implementation of the investment and export credit of State in the current year (year prior to the planning year).

b) Total common credit growth level, in which detailing for investment, export credit of the State and other assigned tasks.

c) The capital sources for implementation of common credit growth plan, in which detailing each type of capital source, including:  

- The capital source from withdrawal of debts loaning investment, export credit of the State.

- The capital source mobilized from domestic and foreign organizations, individuals, in which detailing capital sources mobilized through issuance of bond and other loan capitals which have been issued guarantee by the Government as prescribed by law.

- The capital source from the State budget additionally allocated in order to raise charter capital (if any) or in order to implement the investment, export credit program of the State.

- The State budget allocations for post-investment support.

d) The State budget allocations for offsetting interest rate differences.

3. Based on plans on investment and export credit growth of the State, plans on capital source, plans on allocations for offsetting interest rate differences and post-investment support which have been approved by competent authorities, the Development Bank may proactively manage, allocate the specific credit growth level for each investment field, export credit field of the State and for each project of sectors, fields, localities in principle:

a) To ensure the credit growth plan not exceeding the plan on allocations for offsetting interest rate differences which have been notified.

b) To prioritize projects, export contracts, import contracts under the urgent investment programs of Government and have been signed credit contract with the Development Bank.

c) To allocate fully capital source for payment of debts from capital mobilization which came loan payment maturity in accordance to commitment and provisions of law.

4. In case demand on investment, export credit of the State in year have changes or big fluctuations affecting capital sources, the Development Bank must report to the Ministry of Finance to assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment to submit to the Prime Minister for consideration on adjustment of plan in conformity.

Article 3. Limitation of lending level

1. Debit balance of loan to define limitation of lending capital level for each investor, exporter, and foreign importer shall not exceed 15% of actual charter capital of the Development Bank including:

a) Debit balance of investment credit loan (including loan under credit program with target of using foreign capital).

b) Debit balance of export credit loan.

c) Other loans (except loans from capital sources which the Development Bank receives entrustment, authorization for on-lending).

2. Debit balance of loan to define the limitation of lending level including in-term debts, extended debts, overdue debts and freezing debts.

3. For clients loaned capital, the Development Bank shall decide the lending capital level for each specific case on the basis of debt balance of amounts loaned and remaining amounts for disbursement under credit contracts signed at the Development Bank, ensuring principle of not exceeding the maximum lending capital level for one investor, exporter, foreign importer specified in the Government's Decree No.75/2011/ND-CP  

Article 4. The lending of investment and development credit of the State

1. Subjects, conditions, capital levels, time limit, currency, loaning interest rates shall comply with provision on section 1, chapter II of the Government’s Decree No. 75/2001/ND-CP  

2. In case the Development Bank mobilizes foreign capital to loan under the credit programs with target, the subject being eligible for capital loan must be in the list of projects eligible for investment credit capital loan of the State and must obey properly conditions, terms specified in the Government's Decree No. 75/2001/ND-CP If the foreign donors have requirement, conditions, terms different from provisions in the Decree No. 75/2001/ND-CP the Development Bank shall report to the Prime Minister for consideration and approval before implementation,

Article 5. The Post-investment support

1. Subjects enjoyed post-investment support

a) Subjects enjoyed post-investment support shall implement as specified in Article 12 and Article 13 of the Government’s Decree No. 75/2011/ND-CP of August 30, 2011 on investment and export credit of the State.

b) Conditions to be enjoyed post-investment support:

Apart from provisions on conditions to be enjoyed post-investment support stipulated in Article 13 of the Decree No. 75/2011/ND-CP the project must be enclosed audit report of finished investment project for projects which must have compulsory audit as stipulated by law, for remaining projects, their audit shall be implemented under regulation of the Development Bank. 

c) Projects not be subjects enjoyed post-investment support:

- Projects have been supported on finance (cost for capital loan) under all forms by Funds with operation capital source from the State budget or the State budget of levels.

- Projects changed investor.

- The projects on borrowing capital under target programs using foreign capital of other credit institutions.

2. Principle to define and grant the post-investment support.

a) The post-investment support level is calculated for each project and granted for investor after having paid debt of borrowing capital for investment (original debt) for credit institutions have lent. Based on the capital to pay debt of investor, the Development Bank shall grant the post-investment support for investor in maximally each quarter once time in year.

b) The post-investment support level is calculated on total original debts paid in reality under the credit contract signed with credit institutions but not exceed 70% of total investment capital in fixed assets of project under the decision on approval of settlement of investment capital of competent authorities.

c) For loans paid before term, the post-investment support level is calculated under time limit of actual loan of that loan under the signed credit contract.

d) For projects on freezing debt, time of freezing debt is not counted in the actual loan time limit in order to calculate the post-investment support and maximum support time limit shall be equal with the loan time limit being written in the signed credit contract at the first time.

dd) The investors shall not be granted the post-investment support for original debts which were overdue, debts paid in time of debt extension.  

e) Not to calculate the post-investment support for amounts paying original debt for investors paying for credit institutions before Development Bank receiving fully dossier as prescribed.

3. The Post-investment support level

a) Formula to define Post-investment support level

b) Method to define factors for calculation of Post-investment support level

- The interest rate difference level calculated for post-investment support announced by the Ministry of Finance is calculated on the basis of difference of average interest rate to lend for investment of State commercial banks (the Vietnam Bank for Agriculture and Rural Development, the Bank for Investment and Development of Vietnam, the Joint stock commercial bank for Foreign Trade of Vietnam) and interest rate of borrowing investment credit capital of the State.

- Project enjoyed post-investment support level under each time of paying debt by investors for credit institutions and under the difference of interest rate announced at time of paying debt.

- The actual time limit of borrowing calculated for post-investment support is the period as from the investor received the borrowing capital (being written on the voucher on receiving debt) until the original debt in term being paid (being written on the voucher on paying debt) for credit institutions under signed credit contract or the amending and supplementing credit contract.

The time limit of post-investment support is defined in cases:  The disbursed-one-time capital is repaid at once; disbursed-one-time capital is repaid at many times; disbursed-many-time capital is repaid at once; disbursed-many-time capital is repaid at many times. The Development Bank guides specifically on the actual borrowing time limit of project on the basis of credit contract signed between investors and credit institutions.

- Defining the post-investment support level for projects borrowing capital in foreign currency shall be implemented by original currency. On that basis, and based on the average exchange rate  of USD/VND on the inter-bank foreign currency market or cross-reference exchange rates for types of foreign currency/ VND announced by the State bank at time of granting support money, in order to define the post-investment support level in Vietnam dong for project.

Article 6. The export credit

1. Subjects, forms, conditions, capital levels, time limit, currency, loaning interest rates, disbursement, collection of debts shall comply with provisions in Chapter III of the Government’s Decree No. 75/2001/ND-CP   Exporters, foreign importers must mobilize fully capital sources with specific credit conditions in order to implement the export contract in addition to the export credit loan of the Development Bank.

2. Forms of disbursement

a) The Development Bank shall directly disburse for exporters or importers on the basis of the export credit borrowing capital contract between the Development Bank and exporter, foreign importers

b) The Development Bank may entrust for domestic and overseas financial institutions, credit institutions operating lawfully to disburse the export credit loan for exporters or foreign importers.

3. Forms of debt collection

a) The Development Bank shall directly collect debt (principal and interest) of exporters, foreign importers.

b) The Development Bank may entrust for domestic and overseas financial institutions, credit institutions operating lawfully to collect debt (principal and interest) of exporters, foreign importers on the basis of export credit contracts between the Development Bank with exporters or foreign importers.

c) The Development Bank shall be entitled to collect debt of exporters, foreign importers in foreign currency from goods export revenues. The Development Bank shall implement purchase and sale of foreign currency and foreign currency transactions with credit institutions allowed to operate in foreign currency in order to transfer collected amounts of foreign currency into Vietnam dong or vice versa under provisions of law on foreign currency management.

d) Entrustment of disbursement, collection of debt is implemented on the basis of entrustment contracts between the Development Bank with domestic and overseas financial institutions, credit institutions allowed to entrust in which specifying obligations and rights of parties in disbursement, collection of debt and in conformity with provisions of law on entrustment and receiving entrustment for capital lending of credit institutions.

Article 7. The loaning interest rates of investment and export credit of the State.

1. Periodically ending each quarter, year, the Development Bank shall calculate, define the average interest rate of capital sources, operation expenditures and propose the loaning interest rates of investment and export credit of the State in according to provisions in Decision of the Prime Minister on mechanism of financial management for the Development Bank and guiding documents in order to report to the Ministry of Finance.

2. Based on report of the Development Bank regarding calculating average interest rates of capital sources, operation expenditures and proposal of the loaning interest rates of investment and export credit of the State ; based on situation of loaning interest rates on market and plan offsetting difference of interest rate  been notified, the Ministry of Finance shall consider to decide the interest rate of investment, export credit of the State.

3. In case the average interest rate mobilizing capital on market and of the Development Bank have fluctuation increasing, reducing 10% compared to the adjacent time point of calculating interest rate, the Development Bank shall recalculate average interest rates of capital sources, operation expenditures and have proposal of the loaning interest rates of investment and export credit of the State in order to report to the Ministry of Finance for consideration to decide adjustment of the interest rates.

Article 8. Loan security

1. Investors, exporters borrowing investment credit capital (including loans under the credit programs with target of using foreign capital), export credit of the State must implement measures of loan security at the Development Bank as prescribed by law on security transactions. Measures of loan security include: pledge of assets, mortgage of assets, use of future assets and other security measures (if any) under regulations of law on security transactions.

The Development Bank shall base on capability, financial situation of investors, exporters; projects on investment credit loan, financial plans, plans on paying debt of loan; trust extent of investors, exporters to decide specific measure of loan security, the minimum loan security level.

The overseas importers borrowing export credit of the State must have loan guarantee from governments, or central banks or financial institutions with investment credit or export credit function of countries of importers as stipulated in clause 5 Article 17 of the Decree No. 75/2011/ND-CP.

2. During time not yet paid all debts, investors, exporters shall not entitled to transfer, sell, lend or pledge, mortgage security assets without consent of the Development Bank.

3. The Development Bank may handle security assets in cases:

a) When the obligation of paying debts is due, but investors, exporters fail to implement or implement improper obligation;

b) The investors, exporters must implement obligation of paying debt prior due because breaching obligation as agreement or as prescribed by law;

c) Law stipulates that security assets must be handled for implementation of other obligation of the guarantors;

d) Other cases being agreed by the Development Bank and investors, exporters in contract of loan security or stipulated by law.

4. The Development Bank may base on regulation of current law on security transaction to promulgate documents guiding specifically on process, order of receiving assets, signing contract of loan security, registering security transaction in which stipulate clearly rights and duties of parties for uniform implementation in entire system.

Article 9. Handling of risks

In case investors, exporters, foreign importers meet Force majeure risks and fail to pay debts as prescribed in point a clause 1 Article 26 of the Decree No. 75/2011/ND-CP; wholly State-owned one-member limited liability companies upon transformation into multiple-owner companies and meet financial difficulties as prescribed and other risk cases decided by the Prime Minister, they shall be considered to handle risks under the Regulation on handling of risks on investment, export credit capital of the State at the Development Bank prescribed by the Prime Minister and guides for implementation of the Ministry of Finance.   

Article 10. Regime of report

1. Annually, in time of elaboration of State budget estimates, the Development Bank shall elaborate and report to the Ministry of Finance, the Ministry of Planning and Investment on the plan on investment and export credit of the State as specified in Article 2 of this Circular.

2. Quarterly (before the 15th of first month of proceeding quarter) and end of year (before January 30 of the proceeding year), the Development Bank shall elaborate and send reports enclosed explaination to the Ministry of Finance, the Ministry of Planning and Investment, the State bank of Vietnam, the General Department of Statistics:

- Report on situation of capital sources and use of capital sources (Form No. 01/BC-VDB).

- Report on lending of investment credit capital of the State (Form No. 02/BC-VDB)

- Report on lending of export credit capital of the State (Form No. 03/BC-VDB)

- Report on Post-investment support (Form No. 04/BC-VDB).

- Report on investment lending by entrustment capital (Form No. 05/BC-VDB).

3. Extraordinary report under special subject, specific program.

Article 11. Organizating Implemenatation

1. This Circular takes effect on April 20, 2012 and applies to projects, loans of signing contract on borrowing capital from investment, export credit and first post-investment support (including projects on borrowing capital for investment, post-investment support, export contracts, import contracts) from the effective day of the Government's Decree No. 75/2011/ND-CP of August 30, 2011 on investment, export credit of the State.

2. This Circular replaces Circulars:  No. 69/2007/TT-BTC of June 25, 2007 of the Ministry of Finance guiding a number of articles of the Government’s Decree No. 151/2006/ND-CP of December 20, 2006; No. 16/2009/TT-BTC of January 22, 2009 of the Ministry of Finance amending the Circular No. 69/2007/TT-BTC

3. For projects, contract on borrowing investment credit (including lending under credit program with target of using foreign capital), export credit, post-investment support, investment credit guarantee, export credit, bidding guarantee and guarantee for contract implementation, which have been signed with the Development Bank before the effective day of the Decree No. 75/2011/ND-CP shall be implemented under commitments in the signed credit contracts. 

4. The responsibilities of investors, exporters, foreign importers

In addition to implementation as  prescribed in Article 38 of the Decree No. 75/2011/ND-CP the investors, exporters, foreign importers shall:

- To supply exactly, fully and timely in accordance to requirement of the Development Bank documents relating to enterprise’s finance and production-business operations

- To be examined, supervised by the Development Bank in use of loans in proper purpose, effectiveness and capital preservation.

5. The Development Bank may access to data of tax agencies, customs agencies on clients borrowing capital and export items as prescribed by law aiming to serve for management work, lending and collection of debts.

6. The Development Bank, credit institutions receiving entrustment and investors, esporters, foreign importers with projects, contract using investment and export credit of the State shall implement this Circular.

7. In the course of implementation, any arising problems should be reported to the Ministry of Finance for research, amendment and supplement.