Nghị định 106/2004/ND-CP

DECREE

ON THE STATE'S DEVELOPMENT INVESTMENT CREDITS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of December 25, 2001;
Pursuant to the Domestic Investment Promotion Law (amended) of May 20, 1998;
Pursuant to the State Budget Law of December 16, 2002;
At the proposal of the Minister of Finance,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Purpose of the State's development investment credits

The purpose of the State's development investment credits is to support development investment projects of different economic sectors in some key branches and domains and large economic programs directly conducive the economic restructuring and promoting sustainable economic growth.

Article 2.- Regulation scope

This Decree prescribes the State's development investment credit policies, including:

1. Investment loans and loans provided to projects under the Government's agreements.

2. Post-investment interest-rate support.

3. Investment credit underwriting.

Article 3.- Principles of the State's development investment credits

1. To support investment projects being capable of directly recovering capital in some key branches and domains and large economic programs with socio-economic efficiency, ensuring the repayment of loan capital.

2. A project may concurrently enjoy support in forms of partial investment loan and post-investment interest rate support; or concurrently provided with partial investment loans and investment credit underwriting.

3. The total support level in forms prescribed in Clause 2 of this Article for a project shall not exceed 85% of the investment capital of such project.

4. Investment loan or investment credit underwriting projects must have their financial plans or loan capital repayment plans evaluated by the Development Assistance Fund before investment decisions are made.

5. Investors must use loan capital for the right purposes; and repay loan principals and interests according to the signed credit contracts.

Article 4.- To assign the Development Assistance Fund to organize the implementation of the State's development investment credit policies.

Article 5.- The State's development investment credit plans

1. The State's development investment credit plans constitute a part of the State's development investment plan, aiming to realize socio-economic development strategic objectives in each period.

The State's development investment credit plans shall be announced annually, covering the following principal targets:

a/ The State's total development investment credit, including investment loans, loans provided to projects under the Government's agreements, post-investment interest rate support and investment credit underwriting.

b/ The capital sources for realization of the State's total development investment credit.

c/ The State budget's total interest-rate difference offsetting amount.

2. The Development Assistance Fund shall have to report to the Ministry of Planning and Investment and the Ministry of Finance on the tentative plan on the State's development investment credit in the plan year. The Ministry of Planning and Investment and the Ministry of Finance shall base themselves on the State's development investment credit demands and the State budget's balance capability to submit to the Prime Minister for assignment of the State's development investment credit plan to the Development Assistance Fund before December of the year preceding the plan year.

3. The Development Assistance Fund shall allocate credits properly to each types of subject according to regulations within the total credit amount assigned by the Prime Minister.

4. In cases where the State's development investment credit demands in a year exceed the planned level or exceed the planned interest-rate difference offsetting level, the Development Assistance Fund shall report such to the Ministry of Planning and Investment and the Ministry of Finance for submission to the Prime Minister for decision.

Article 6.- Interpretation of terms

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

1. The lending term means the period from the time of the first-time withdrawal of capital to the time of full repayment of loan debts under the credit contract.

2. The grace period means the period during which a loan's principal shall not be repaid, counting from the time of the first-time withdrawal of capital to the time the repayment of loan principal begins, which, however, shall not exceed the project execution duration.

3. The debt repayment term means the period from the time of the first-time repayment to the time of full repayment of loan debts under the credit contract.

4. The debt-repayment time limit means the period of time prescribed for each time of debt repayment in the debt repayment term.

5. Investment lending mean that the Development Assistance Fund lends capital to investors for investment in projects.

6. Post-investment interest-rate support means the Development Assistance Fund gives a partial interest-rate support for investors to borrow capital from credit institutions for investment in projects after such projects have been completed and put to use and loan debts have been repaid.

7. The investment credit underwriting means a commitment made by the Development Assistance Fund with the capital-lending credit institution to the full and timely debt repayment by the borrowing party. In cases where the borrowing party cannot repay debts or fails to fully repay due debts, the Development Assistance Fund shall pay the debts for the borrowing party.

8. Projects provided with loan capital under the Government's agreements mean foreign projects lent with investment capital by the Vietnamese Government (or authorized agencies) under the agreements signed between the Vietnamese Government and the governments of the countries having the loan projects (or authorized agencies).

Chapter II

THE STATE’S DEVELOPMENT INVESTMENT CREDITS

A. DEVELOPMENT INVESTMENT LOANS

Article 7.- Forms of the State's development investment loans

1. Investment loans;

2. Loans provided to projects under the Government's agreements.

Section I. INVESTMENT LOANS

Article 8.- Objects entitled to investment loans

1. Entitled to investment loans are projects capable of directly recovering capital, which are on the list of projects and programs decided by the Government for each period.

The preference duration for projects is prescribed in Section I of the list of projects and programs entitled to investment loans enclosed with this Decree till December 31, 2005.

2. The list of projects and programs is detailed according to each object and preference application duration, which shall be submitted to the Government for decision by the Ministry of Finance in coordination with the concerned ministries and agencies.

Article 9.- Conditions for being entitled to investment loans

1. Being the objects defined in Article 8 of this Decree;

2. Having completed the investment procedures according to the State's regulations;

3. Investors being organizations or individuals that have full civil act capacity;

4. For investment projects on production expansion or renewal of technologies or equipment, investors must have the financial capability to ensure their solvency;

5. Having profitable production/business plans;

6. Having financial plans and debt-repayment plans evaluated, and having loans approved, by the Development Assistance Fund, before investment decisions are made.

7. Complying with the provisions on loan underwriting in Article 16 of this Decree. For assets, which are formed from loan capital and subject to compulsory insurance, investors must commit to purchase insurance for such assets for the whole capital-borrowing term at an insurance company lawfully operating in Vietnam.

Article 10.- Investment loan capital levels

1. The loan capital level for each project shall be decided by the Development Assistance Fund, which, however, shall not exceed 70% of the total investment capital of such project. For the remaining capital amount, the investor must determine its sources and specific financial conditions, ensuring the project's feasibility.

2. In the course of capital disbursement, the Development Assistance Fund shall comply with the capital source structure determined in Clause 1 of this Article.

Article 11.- Investment lending term

1. The lending term shall be determined according to the capital recovery capability, which is compatible with the project's production/business characteristics and the investor's debt repayment capability, but shall not exceed 12 years.

2. For some particular projects such as afforestation projects with long capital recovery duration, the lending term shall not exceed 15 years.

Article 12.- Investment loan interest rate

1. The investment loan interest rate shall be determined as equal to 70% of the average medium- and long-term loan interest rate of State-run commercial banks. The Finance Minister shall stipulate the investment loan interest rate in each period.

2. When the market interest rate fluctuation range is between 15% and more, the Finance Minister shall decide to adjust the lending interest rate. The number of such adjustments shall not exceed 2 a year.

3. For a project, the capital loan interest rate shall be determined at the time the first credit contract is signed and kept unchanged throughout the lending term.

4. Overdue debt interest rate shall be equal to 150% of the undue-debt lending interest rate inscribed in the credit contract.

5. In the grace period, investors shall not have to pay loan principals but have to pay loan interests.

Section II. LOANS PROVIDED TO PROJECTS UNDER THE GOVERNMENT'S AGREEMENTS

Article 13.- Projects entitled to loans provided under the Government's agreements

Projects invested with the Vietnamese Government's aid source for the countries having signed agreements.

Article 14.- Conditions for being entitled to project loans provided under the Government's agreements

1. The capital-borrowing projects under the Government's agreements must procure Vietnam-made products or equipment and employ Vietnamese specialists or laborers for project execution.

2. Other borrowing conditions shall comply with the specific provisions of the agreements signed between the Vietnamese Government (or authorized person) and the governments (or authorized persons) of the loan capital-receiving countries.

Article 15.- Capital disbursement

Annually, the Finance Ministry shall transfer capital to the Development Assistance Fund. Basing itself on the Government's agreements and dossiers of capital-receiving projects, the Development Assistance Fund shall pay to suppliers of Vietnamese equipment and goods and for expenses related to the execution of projects inscribed in the agreements at the payees' requests.

Section III. LOAN SECURITY, LOAN DEBT REPAYMENT AND HANDLING OF RISKS

Article 16.- Security assets applicable to investment loans and investment credit underwriting

1. Investors that borrow investment capital or get investment credit underwriting may use assets formed from loan capital for loan security.

2. While the debts have not yet fully been repaid, investors must not transfer, sell, mortgage or pledge such assets to borrow capital from other places. Where investors or capital-borrowing units cannot repay debts, or are dissolved or go bankrupt, the Development Assistance Fund may handle assets formed from loan capital like the mortgaged assets as prescribed by law for credit institutions in order to recover loan debts.

Article 17.- Loan debt repayment

1. Investors shall have to pay loan capital to lending organizations strictly according to the signed credit contracts.

2. In the grace period, investors shall not have to pay loan principals but have to pay loan interests.

3. If after 10 working days as from the debt repayment deadline, investors fail to repay loan debts of such term and are not allowed for debt rescheduling or debt extension, the Development Assistance Fund shall convert the late-paid debt principals and interests into overdue debts and the investors must bear overdue interest rates according to the provisions of Clause 4, Article 12 of this Decree.

Article 18.- Adjustment of grade period, debt repayment term and debt repayment level in each time limit

If for objective reasons, investors cannot repay their debts as agreed upon in the credit contracts, they must send written requests to the Development Assistance Fund for consideration and adjustment of the grace period as well as debt repayment term, time limit and level in each time limit according to the competence prescribed in Article 21 of this Decree (hereinafter called debt extension for short). The debt extension duration shall not exceed one-third of the debt repayment term inscribed in the credit contracts.

Article 19.- Risks and handling thereof

1. Investors shall be considered for debt extension, freezing or remission, or loan-interest exemption or reduction due to such force majeure reasons as natural disasters, fires or unexpected accidents causing property damage, or due to the State's policy changes.

2. Cases of ownership transformation or handling of financial difficulties of enterprises using the State's development investment credits shall comply with the Government's regulations as for commercial banks' debts.

Article 20.- Deduction for, and setting up of, risk reserve fund

Annually, the Development Assistance Fund may set up the risk reserve fund to handle risks when investors cannot repay debts under credit contracts. The deduction for, and setting up of, the risk reserve fund shall be effected as follows:

1. The maximum deduction level equal to 0.2% of the investment loan average debt balance and investment credit underwriting obligation shall be annually made for the risk reserve fund. The Ministry of Finance shall guide the deduction for, and setting up of, the risk reserve fund.

2. The annual deduction for the risk reserve fund shall be accounted into expenses for operational activities of the Development Assistance Fund.

Article 21.- Competence to handle risks

1. The general director of the Development Assistance Fund shall decide to adjust grace period as well as debt repayment term, time limit and level in each time limit.

2. The Finance Minister shall submit to the Prime Minister for decision debt freezing or remission, loan interest rate exemption or reduction for project owners on the basis of the proposal of the general director of the Development Assistance Fund.

3. The handling of risks of loan projects under the Government's agreements shall be decided by the Prime Minister.

4. In cases where the Development Assistance Fund's risk reserve fund is not enough to offset, the general director of the Development Assistance Fund shall report such to the Finance Minister for further report to the Prime Minister for consideration and decision.

B. POST-INVESTMENT INTEREST-RATE SUPPORT

Article 22.- Objects entitled to post-investment interest-rate support include:

1. Projects which are entitled to investment loans under this Decree's provisions but have been partially provided or have not yet been provided with the State's development investment credit capital.

2. Projects which are on the list of production/business lines in domains and geographical areas eligible for investment preferences under the Government's current regulations guiding the implementation of the Domestic Investment Promotion Law (amended) but not entitled to investment loans or investment credit underwriting of the Development Assistance Fund.

Article 23.- Conditions for enjoying post-investment interest-rate support

1. Projects entitled to post-investment interest-rate support prescribed in Article 22 of this Decree.

2. Investment projects which have been completed and put to use, and the loan capital therefor has been repaid.

Article 24.- Post-investment interest-rate support principles

Investors shall be entitled to post-investment interest-rate support only for the loan capital from credit institutions for investment in fixed assets and within the total fixed asset investment capital of the projects. The time for calculation of post-investment interest-rate support shall be the time the capital is actually borrowed in the project duration.

Article 25.- Post-investment interest-rate support levels

1. For Vietnam dong loans, a project's post-investment interest-rate support level shall be determined as equal to the actually paid debt principal, multiplied (x) by 50% of the interest rate of the State's development investment credit and multiplied (x) by actual loan term (converted into years) of the actually paid debt principal.

2. For foreign currency loans, a project's post-investment interest-rate support level shall be determined as equal to the foreign-currency debt principal actually paid in the year, multiplied (x) 35% of the interest rate of the foreign currency loan under the credit institution's loan contract, and multiplied (x) by the actual loan term (converted into years) of the actually paid debt principal.

3. The Development Assistance Fund shall provide post-investment interest-rate support to project owners once or twice a year.

C. INVESTMENT CREDIT UNDERWRITING

Article 26.- Objects entitled to underwriting

1. Projects which are entitled to investment loans under this Decree's provisions but have been partially provided or not yet provided with the State's development investment credit capital.

2. Projects which are on the list of production/business lines in domains and geographical areas eligible for investment preferences under the Government's current regulations guiding the implementation of the Domestic Investment Promotion Law (amended) but not entitled to investment loans or investment credit underwriting of the Development Assistance Fund.

Article 27.- Underwriting conditions

1. Being objects eligible for investment loan underwriting prescribed in Article 26 of this Decree.

2. Conditions for projects to enjoy underwriting shall comply with the provisions of Clauses 2, 3, 4, 5 and 7, Article 9 of this Decree.

3. Having their financial plans or debt-repayment plans evaluated by the Development Assistance Fund.

Article 28.- Underwriting term

The underwriting duration shall be determined in conformity with the capital loan term as agreed upon by the investor and the lending credit institution.

Article 29.- Underwriting levels

1. The underwriting level for a project shall not exceed 70% of the project's approved total investment capital for fixed assets.

2. The total underwriting amount granted by the Development Assistance Fund to projects in a year shall not exceed the total investment loan capital in that year.

Article 30.- Underwriting charges

Investors entitled to underwriting shall not have to pay underwriting charges to the Development Assistance Fund.

Article 31.- Financial responsibilities when investors are incapable of repaying debts

In cases where investors are unable to repay their loan debts strictly according to the signed credit contracts:

1. The Development Assistance Fund shall have to pay debts to credit institutions on behalf of the investors for the loan capital amounts it has provided the underwriting.

2. The investors shall have to acknowledge compulsory debts with the Development Assistance Fund for the amounts the latter has paid on their behalf at the fining interest rate equal to 150% of the current loan interest rate of the concerned credit institutions.

3. When finding sources for debt repayment, the investors must repay debts for the acknowledged compulsory debts (including debt interests) to the Development Assistance Fund.

Article 32.- Handling of risks in underwriting

In cases where the investors entitled to underwriting are incapable of repaying compulsory debts to the Development Assistance Fund, they shall be handled according to the provisions of Articles 19 and 21 of this Decree.

Chapter III

THE STATE’S DEVELOPMENT INVESTMENT CREDIT CAPITAL SOURCES

Article 33.- The State’s development investment credit capital sources

1. The State budget capital:

a/ The Development Assistance Fund's charter capital.

b/ The State budget capital additionally allocated annually for application of forms of the State’s development investment credits.

c/ Capital of projects and programs assigned by the Government to the Development Assistance Fund for execution.

d/ The Vietnamese Government's capital lent to foreign projects under the Government's agreements.

2. Capital mobilized by the Development Assistance Fund:

a/ Capital from issuance of Government bonds.

b/ Capital borrowed from domestic and foreign economic organizations.

c/ Other mobilized sources under law provisions.

3. The Government's ODA capital and foreign loan capital used for re-lending.

Chapter IV

THE DEVELOPMENT ASSISTANCE FUND

Article 34.- Tasks of the Development Assistance Fund

1. To mobilize capital, receive and manage the State's capital sources reserved for the State's development investment credits according to regulations.

2. To carry out the State's development investment credit activities according to the provisions of this Decree.

3. To undertake to allocate and provide loans from different capital sources entrusted by localities or domestic and foreign organizations; to perform other tasks assigned by the Prime Minister.

4. To organize the payment to customers that have direct relations and participate in the payment system according to law provisions.

5. To send quarterly or extraordinary reports when requested to the Prime Minister, the Ministry of Finance and the Ministry of Planning and Investment.

Article 35.- The Development Assistance Fund's financial mechanism

1. The Development Assistance Fund operates for non-profit purposes, is provided with the State's guarantee for its payment capability; is exempted from taxes and other remittances to the State budget.

2. The State budget shall offset interest-rate differences and provide post-investment interest-rate support and operation charges to the Development Assistance Fund according to the State's annual actually-implemented development investment credits.

Chapter V

RESPONSIBILITIES OF STATE MANAGEMENT AGENCIES

Article 36.- The Ministry of Finance

1. To perform the State management over finance for the State's development investment credit activities and the Development Assistance Fund.

2. The Finance Minister shall, on the Prime Minister's behalf, direct the Development Assistance Fund's activities and decide on capital mobilization interest rates of the Development Assistance Fund; decide and adjust lending interest rates according to the provisions of Clauses 1 and 2, Article 12 of this Decree; and handle the State's development investment credit risks according to his/her competence.

3. To assume the prime responsibility for, and coordinate with the concerned ministries in, submitting to the Government for decision the list of objects entitled to investment loans and preference application duration in each period.

4. To coordinate with the Ministry of Planning and Investment in apportioning annual State budget capital to the Development Assistance Fund for application of forms of the State's development investment credits.

5. To examine and supervise the Development Assistance Fund in capital borrowing, acknowledgment of debts and repayment of mobilized capital debts; use the State's development investment credit capital to provide investment loans and post-investment interest-rate supports, and repay debts for investment credit underwriting; disburse loancapital provided under agreements signed between the Vietnamese Government and foreign countries.

6. To submit to competent agencies for promulgation or promulgate according to its competence financial policies and mechanisms as well as the State's policies on development investment credit capital mobilization and use; and financially supervise the Development Assistance Fund's activities.

Article 37.- The Ministry of Planning and Investment

1. To include the State's annual plan on development investment credit in the general socio-economic development plan and submit it to the Prime Minister for notification of the State's annual development investment credit plan.

2. To assume the prime responsibility for, and coordinate with the Ministry of Finance in, making State budget estimates for interest-rate difference offsetting and providing post-investment interest-rate support for the State's annual development investment credit activities according to regulations.

3. To assume the prime responsibility for submitting to the Prime Minister for assignment, the State's annual development investment credit plan and make interest-rate offsetting estimates for the Development Assistance Fund.

4. To coordinate with the Ministry of Finance in examining the Development Assistance Fund's activities in borrowing capital, acknowledging debts and repaying mobilized-capital debts, using the State's development investment credit capital to provide loans or post-investment interest-rate supports, repaying underwritten debts and disbursing capital under agreements signed between the Vietnamese Government and foreign countries.

5. To widely publicize and update information on plannings, strategies and orientations for development of branches, regions and products as well as the State's investment and export promotion policies.

Article 38.- The State Bank of Vietnam

1. To perform the function of State management over currencies, foreign exchange and credit related to the State's development investment credits;

2. To guide the Development Assistance Fund to participate in the payment system according to the provisions of Clause 4, Article 34 of this Decree;

3. To direct the Social Policy Bank, commercial banks and credit institutions to coordinate with the Development Assistance Fund in conducting operations of loan consignment, underwriting and post-investment interest-rate support according to the provisions of this Decree and the Regulation on operation of credit institutions.

Article 39.- Ministries, ministerial-level agencies, Government-attached agencies and People's Committees of provinces and centrally-run cities

1. To widely publicize development plannings, plans and orientations, econo-technical processes, regulations, standards and norms of different branches, domains, products and territorial areas, as well as other necessary information in each period for use as basis for evaluation of projects entitled to the State investment support.

2. To direct and examine, according to their respective functions and tasks, investment made by investors strictly according to the State's regulations on investment, ensuring tempo and loan capital repayment under commitments in the credit contracts.

3. To coordinate with the Development Assistance Fund in settling consequences of suspended projects or projects incapable of repaying loan debts, which fall under their respective responsibilities according to law provisions.

Chapter VI

REPORTING, INSPECTION, EXAMINATION AND HANDLING OF VIOLATIONS

Article 40.- Inspection, examination and reporting

1. All the State's development investment credit activities under this Decree are subject to inspection or examination by competent State agencies according to law provisions.

2. In each specific case, the inspection or examination may be conducted in a stage or all stages of construction investment, production, business and loan capital repayment process.

3. The ministers, the heads of the ministerial-level agencies, the heads of the Government-attached agencies and the presidents of the People's Committees of the provinces and centrally-run cities shall examine and supervise the implementation of the State's development investment credit policies under their respective management.

4. Quarterly or extraordinarily, the Development Assistance Fund shall sum up and report to the Prime Minister the implementation of development investment credit plans, and at the same time send reports thereon to the Ministry of Planning and Investment, the Ministry of Finance and the General Statistics Office.

Article 41.- Handling of violations

1. Organizations and individuals entitled to the State's development investment credits, that violate the provisions of this Decree, may, depending on the seriousness of their violations, be administratively sanctioned; if causing property damage, they must pay compensations therefor and be handled according to law provisions.

2. Those who decide on investment contrarily to investment undertakings, thus causing serious socio-economic or environmental consequences, shall be answerable to law.

3. The Development Assistance Fund or credit institutions, which violate credit contracts, interest-rate support contracts, underwriting contracts or insurance contracts, shall be handled according to law provisions.

Chapter VII

IMPLEMENTATION PROVISIONS

Article 42.- Implementation effect

This Decree takes implementation effect 15 days after its publication in the Official Gazette. To annul the Government's Decree No. 43/1999/ND-CP of June 29, 1999 on the State's development investment credits and other regulations related to the State's development investment credits which are contrary to this Decree.

Article 43.- Projects for which credit contracts have been signed

For projects on investment credit capital loans, investment credit underwriting and post-investment interest-rate support, for which contracts have been signed with the Development Assistance Fund before the effective date of this Decree, the regulations inscribed in the signed credit contracts shall apply.

Article 44.- Implementation guidance responsibilities

The Finance Minister, Vietnam State Bank Governor and the Management Board of the Development Assistance Fund shall have to guide the implementation of this Decree according to their respective functions and competence.

Article 45.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People's Committees of the provinces and centrally-run cities and the chairman of the Management Board of the Development Assistance Fund shall have to implement this Decree.

LIST

OF PROJECTS AND PROGRAMS ENTITLED TO INVESTMENT LOANS

(Promulgated together with the Government's Decree No. 106/2004/ND-CP of April 1, 2004)