Tiếng Việt| THE STATE BANK | SOCIALIST REPUBLIC OF VIET NAM |
| No. 23-QD/NH14 | Hanoi, February 21, 1994 |
ON GUARANTEES AND CROSS GUARANTEES FOR FOREIGN LOANS
THE GOVERNOR OF THE STATE BANK
Pursuant to the Ordinance on the State Bank dated 24 May 1990;
Pursuant to Decree 15-CP of the Government dated 2 March 1993 on the duties, powers, and State administrative responsibility of ministries and ministerial equivalent bodies;
Pursuant to Decree 58-CP of the Government dated 30 August 1993 issuing the Regulations on Control of Foreign Loans and Loan Repayments;
On the recommendation of the Director of the Credit Department of the State Bank;
DECIDES:
To issue with this Decision the Regulations on Guarantees and Cross-Guarantees for Foreign Loans.
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FOR THE GOVERNOR OF THE STATE BANK
Cao Sy Kiem
ON GUARANTEES AND CROSS-GUARANTEES FOR FOREIGN LOANS
(Issued with Decision 23-QD-NH14 of the Governor of the State Bank dated 21 February, 1994.)
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Entities receiving guarantees and entities giving guarantees.
4.1. Entities receiving guarantees:
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4.1.2. Banks authorized to carry out international transactions which have entered into a loan agreement with a foreign lender.
4.2. Entities giving guarantees:
4.2.1. Banks authorized to carry out international transactions (hereinafter referred to as banks) shall be permitted to give guarantees to enterprises or to other banks;
4.2.2. The State Bank shall be permitted to give guarantees to banks and a number of enterprises determined by the Government;
4.2.3. Banks may give a joint guarantee in respect of a single loan.
Entities receiving cross-guarantees and entities giving cross guarantees.
5.1. Entities receiving cross-guarantees are banks.
5.2. The State Bank shall give cross-guarantees to banks and banks may give cross-guarantees to other banks. Banks may give a joint cross-guarantee in respect of a single guarantee.
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A guarantee or a cross-guarantee shall be given in respect of loans on a case by case basis.
The specific fee level and the time of payment shall be determined by the guarantor or cross-guarantor bank.
Forms of guarantees and cross-guarantees.
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The guarantor opens a letter of credit for purchases of goods with deferred payments;
The guarantor signs a bill of exchange accepting the loan obtained from a foreign lender (except in cases where the guarantor is the State Bank);
The guarantor issues a letter of guarantee;
The guarantor issues a promissory note to the foreign lender (or confirms the promissory note of a customer in cases where the guarantor is the State Bank).
9.2. Cross-guarantees shall be given by way of issuance of letters of guarantee.
GUARANTEES AND CROSS-GUARANTEES OF BANKS
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In order to distribute the potential risks, the sum guaranteed or cross-guaranteed for each customer or for every ten customers shall not exceed ten (10) per cent or thirty (30) per cent respectively of the estimated total sum guaranteed or cross-guaranteed by the guarantor or cross-guarantor bank.
Conditions of a guarantee or cross-guarantee.
11.1. Any customer who requests a guarantee or cross-guarantee must satisfy the following conditions:
11.1.1. Where the customer is an enterprise stipulated in sub-clause 4.1.1 of these Regulations:
The enterprise must have full legal status and operate in accordance with the laws of Vietnam currently in force;
The lender must require a guarantee in respect of the loan;
The enterprise must comply with the Regulations on Control of Foreign Loans and Loan Repayments issued by the Government and the loan concerned must be consistent with the approved plan of the Government outlining the total level of foreign loans;
There must be a loan contract in respect of the foreign loan;
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The investment project concerned must have a technical economic feasibility study approved by a competent body;
The enterprise must have a feasible plan for the utilization and repayment of the loan capital obtained from foreign lenders;
The enterprise must not have any unpaid due debts (in Vietnamese dong or foreign currencies) owing to Vietnamese or foreign entities (except where the due debt was obtained prior to 1990 and its repayment is allowed to be deferred); the enterprise must not have any outstanding tax liabilities payable to the State;
The enterprise must have sufficient assets to be given as lawful security for the guarantee;
The enterprise must complete an application for guarantee (in accordance with the attached model form No.1/BL).
11.1.2. Where the customer is a bank:
The business operation of the bank must make profits and the bank must have a good credit rating;
The bank must not have any unpaid due debts owing to the State Bank or other banks (except where the debt due was obtained prior to 1990 and its repayment is allowed to be deferred);
The loan concerned must be consistent with the approved plan of the Government outlining the total level of foreign loans;
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The lender must require a guarantee in respect of the loan;
The bank must have sufficient assets to be given as security where required by the guarantor;
The bank must complete an application for guarantee (in accordance with the attached model form No.2/BL).
11.2. Any bank which requires a cross-guarantee must satisfy the following conditions:
The business operation of the bank must make profits and the bank must have a good credit rating;
The bank must not have any unpaid due debts owing to the State Bank or other banks (except where the due debt was obtained prior to 1990 and its repayment is allowed to be deferred);
The bank must have sufficient assets to be given as security where required by the cross-guarantor;
The bank must have full documentation and files of customers requesting guarantees and documents approving such guarantees issued by the guarantor bank;
The bank must complete an application for cross-guarantee (in accordance with the attached model form No.3/BL).
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In respect of real estate property: proper certificate of ownership (original copy), proper documentation notarized by a State notary public, and the property concerned must be easily assigned;
In respect of bonds and Government bonds: the bond certificate must contain all the relevant items required by law, the bond must not have matured, the entity issuing the bond must be an organization of high reputation, the bond must be easily transferable, and the customer requesting the guarantee or cross-guarantee must be lawfully entitled to the interest earned in respect of the bond;
In respect of gold and precious stones: the gold or precious stones must be inspected by the guarantor or cross-guarantor bank, and must be wrapped and sealed by the customer in the presence of the guarantor or cross-guarantor bank prior to being transferred to the guarantor or cross-guarantor bank.
In the case of State owned enterprises in particular, any asset offered as security must have the written approval of the owner (or the representative of the owner) which is the financial institution.
13.1. For guarantees:
13.1.1. Where the customer is an enterprise:
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The foreign loan contract;
The feasibility study for the investment project as approved by a competent body;
The feasibility plan outlining the utilization and repayment of capital obtained from foreign lenders;
Any import license;
An application to open a letter of credit (in respect of commercial loans);
A list of assets offered as security.
13.1.2. Where the customer is a bank:
An application for guarantee;
The foreign loan contract;
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A list of assets offered as security (upon the request of the guarantor bank).
13.2. For cross-guarantees:
An application for cross-guarantee;
A copy of the whole application file for a guarantee of the customer and the documents approving the guarantee issued by the guarantor bank;
A list of assets offered as security (upon the request of the cross-guarantor bank).
The power to accept a guarantee or cross-guarantee.
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The person delegated with the authority must not delegate this authority to any Other person(s).
Where the assets are lost or damaged, the guarantor or cross-guarantor bank shall be responsible before the law and for payment of compensation for material damage.
One month prior to the due date of the loan, the guarantor or cross-guarantor bank must remind and prompt the customer to ensure that the loan is repaid on time.
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19.1. When the customer has fully paid off the foreign loan (principal and interest), the guarantor or cross-guarantor bank must return all assets (or documentation relating to the assets) retained as security to the customer.
19.2. Where the customer fails to repay a part or the whole of the loan when it is due, the guarantor bank shall pay the outstanding amount to the lender on behalf of the customer and the customer at such time shall enter into a loan agreement with the guarantor bank for that amount with an interest rate calculated by reference to the interest rates of equivalent loans offered by the guarantor bank. The guarantor bank shall then be permitted to sell the secured assets of the customer to recover the amount paid by the bank on behalf of the customer in accordance with the provisions of the law.
19.3. For cross-guarantees: where the guarantor bank fails to repay a part or the whole of the loan for the customer, the cross-guarantor bank shall pay the outstanding amount on behalf of the guarantor bank; the guarantor bank must then enter into a loan agreement with the cross-guarantor bank for the amount paid with an interest rate calculated by reference to the interest rates of equivalent loans offered by the cross-guarantor bank The cross-guarantor bank shall then be permitted to sell the secured assets to recover the amount paid in accordance with the provisions of the law.
GUARANTEES AND CROSS-GUARANTEES OF THE STATE BANK
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21.1. Conditions of guarantees:
1. The business operation of the bank must make profits and the bank must have a good reputation and credit rating; the bank must comply with all the provisions of the State Bank;
2. The bank must not have any due debts owing to the State Bank or other member banks of the Interbank Market;
3. There must be a feasibility plan outlining the utilization and repayment of the loan obtained from foreign lenders;
4. The foreign lender must request a guarantee;
5. There must be a foreign loan contract and the loan must be consistent with the approved plan of the Government outlining the total level of foreign loans;
6. The bank must possess documents of value (hereinafter referred to as documents) to be used as security for the guarantee. In particular,
branches of foreign banks operating in Vietnam must also possess the recommendations of their respective parent banks in respect of the guarantee;
7. The bank must complete an application for guarantee in respect of the foreign loan (in accordance with the attached model form No.2/BL).
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1. The bank must satisfy conditions 1, 2, and 6 of sub-clause 21.1 of this article.
2. The bank must provide the full application file for guarantee of the customer and the approval document of the guarantor bank;
3. The lender must request a cross-guarantee;
4. An application for cross-guarantee must be prepared (in accordance with model form No.3/BL) and submitted.
In respect of bonds and Government bonds: the bond certificate must contain all the relevant items required by law, the bond must not have matured, the entity issuing the bond must be an organization of high reputation, the bond must be easily transferable, and the bank requesting the guarantee or cross-guarantee must be lawfully entitled to the interest earned on the bond;
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24.1. For guarantees:
An application for guarantee of a foreign loan;
The foreign loan contract;
A feasibility plan outlining the utilization and repayment of the foreign loan;
A list of documents offered as security.
24.2. For cross-guarantees:
An application for cross-guarantee of a foreign loan;
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A list of documents offered as security.
26.1. Prior registration of documents used as security.
Documents used as security shall be registered at the Transaction Department of the State Bank, or at branches of the State Bank in the province or city in which the bank or branch of the bank has its account.
The Transaction Department of the State Bank and the provincial or municipal branches of the State Bank shall be responsible for the inspection of documents used as security. The list of documents used as security (prepared in accordance with the attached model form) shall be entered into the database of the central computer network TTR of the branches of the Stale Bank and shall be electronically transmitted to the Credit Department.
26.2. When a bank requires a guarantee or cross-guarantee, it shall prepare a list of documents to be used as security which have already been approved by the State Bank. The bank concerned must then retain the list prepared in its computer files, and submit a copy of the list and the application for guarantee or cross-guarantee to the State Bank,
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The Transaction Department of the State Bank and branches of the State Bank shall be responsible for the storage and preservation of any retained secured document. Where the secured documents are lost or damaged, the Transaction Department and the relevant branch of the State Bank shall be responsible before the law and liable for any material damage.
Where a secured document ceases to be valid during the term of the guarantee or cross-guarantee, the bank concerned must replace the invalid document with another document of equivalent value which is still valid. Where the bank concerned fails to provide such replacement, that bank shall be liable for a fine of one per cent of the value of the required document.
Where the bank concerned repays fully the amount owed (both the principal and interest), the Transaction Department or the branch of the State Bank in the locality in which the secured documents are retained must return all the secured documents to the bank in accordance with the notice issued by the Credit Department or the authorized branch of the State Bank
Where the bank concerned fails to repay a part or the whole of the due debt, the State Bank shall repay the amount outstanding on its behalf and, at the same time, enter into a loan agreement with the bank for the amount paid with an interest rate equal to one hundred and fifty (150) per cent of the interest rate of the foreign loan.
28.2. For cross-guarantees: where the guarantor bank fails to repay on behalf of the customer a part or the whole of the loan, the State Bank shall pay on its behalf the amount outstanding and, at the same time, enter into a loan agreement with the guarantor bank for the amount paid with an interest rate equal to one hundred and fifty (150) per cent of the interest rate of the foreign loan obtained by the customer. The guarantor bank must carry out all the formalities stipulated in clause 19.2 of article 19 in respect of its customer.
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28.4. When a bank receives a due debt, it must direct the money received towards repayment of its own debt. The State Bank shall automatically deduct any amount which is deposited in the account of the debtor bank in order to recover the debt due and shall not provide any further guarantee or cross-guarantee until the whole amount of the due debt has been paid by the bank concerned.
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APPLICATION FOR GUARANTEE OF FOREIGN LOAN
(Applicable to enterprises)
To: ...............,..(1)...................
Name of enterprise (borrower): ..............................
Address: ............................
Full name of director:...................................
Bank account no. for deposits in Vietnamese currency:
...................... Bank: ........................................
Bank account no. for loans in foreign currency:
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Bank account no. for deposits in Vietnamese currency:
...................... Bank: .......................................
Bank account no. for loans in foreign currency:
...................... Bank: ........................................
Hereby requests that ..........(1)................... gives a guarantee for a loan obtained from .......(3)......., Address: ..................... Country: .............
Bank account no. ...................... Bank: .......................
In accordance with loan contract no. .......... dated ...../....../.....for an amount of .............................
..........(in words ...........................)
Total sum guaranteed: ...................(in words ...............)
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Guarantee fee:..............................
Purpose of the loan: .......................
Total value of assets offered as security: .............
Attached documents include: ........................
We hereby undertake to comply with all provisions of the Regulations on Guarantees and Cross-Guarantees of Foreign Loans issued with Decision No.../QD-NH14 dated ../...../1993 of the Governor of the State Bank
(Full name)
Recommendation of ...........(2).....................................
Dated: .../...../....
Director of ................
(signature and seal)
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If the enterprise is declared bankrupt, ..........(2),...... hereby agrees to deal with the assets managed by the enterprise in accordance with the provisions of article 38 of the Law on Business Bankruptcy.
Dated ..../..../...
..(2)..........
(signature and seal)
(Full name)
APPROVAL OF APPLlCATION FOR GUARANTEE
...........(1)................ hereby agrees to give a guarantee to enterprise ..................... for a loan obtained from ........(3).......... as follows:
Sum guaranteed: .................................... (in words): ...................................
Duration of the guarantee:.... months (from ..... to ....)
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Dated .../..../....
Guarantor bank
General Director (or director)
(signature and seal)
(Full name)
Note: (1) Name of guarantor bank
(2)Name of financial body (ministry or office) - applicable for State enterprises.
(3)Name of lender.
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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APPLICATION FOR GUARANTEE OF FOREIGN LOAN
(Applicable to banks)
TO: ..............(1)......................
Name of bank (borrower): ..................................
Address:.......................................
Full name of general director (or director): .......
Bank account no. for deposits in Vietnamese currency:
..................... Bank: ...................................
Bank account no. for deposits in foreign currency:
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Bank account no. for loans in Vietnamese currency:
.................. Bank: .....................................
Bank account no. for loans in foreign currency:
................... Bank: ....................................
Hereby requests that ..........(1)................. gives a guarantee for a loan obtained from .........(2).......... Address: .................. Country: ..........
Bank account no. ................... Bank: ....................................... in accordance with loan contract no............ dated ..../..../... for an amount of ...................................... (in words ......................................)
Total sum guaranteed: ..................... (in words ........................)
Duration of guarantee: ...... months (from ............ to ......)
Guarantee fee: ................................
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Total value of assets (or documents) offered as security:
Attached documents include: .....................
We hereby undertake to comply with all provisions of the Regulations on Guarantees and Cross-Guarantees of Foreign Loans issued with Decision No..../QD-NH14 dated ..../..../1993 of the Governor of the State Bank
Dated: .../...../....
General director (or director)
(signature and seal)
(Full name)
APPROVAL OF APPLlCATION FOR GUARANTEE
................(1)................ hereby agrees to give a guarantee to bank ....................... for a loan obtained from ...........(2).............. as follows:
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Duration of the guarantee:.... months (from ...... to ..... )
Guarantee fee: ........................................
Dated ../...../...
Guarantor bank
General Director (or director)
(signature and seal)
.............................
(Full name)
Note: (1) - Name of guarantor bank
(2) - Name of foreign lender
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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APPLICATION FOR CROSS-GUARANTEE OF FOREIGN LOAN
(Applicable for banks applying for a cross-guarantee)
To: ..................(1)...................
Name of bank (applicant): .........................
Address: ....................................
Full name of general director (or director): .......
Bank account no. for deposits in Vietnamese currency:
........................ Bank: .....................................
Bank account no. for deposits in foreign currency:
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Bank account no. for loans in Vietnamese currency:
....................... Bank: ...................................
Bank account no. for loans in foreign currency:
....................... Bank: ....................................
Hereby requests that ..........(1)................ gives a cross-guarantee to enable us to give a guarantee for ........................... for a loan obtained from ................................... Address: ......................
Country: ................. Bank account no.............. Bank:
........................ in accordance with loan contract no. ............ dated ...../.../.... for an amount of
........................... (in words.....................................)
Total sum cross-guaranteed: ........ (in words .............................)
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Cross-guarantee fee: ............................
Purpose of cross-guarantee: ........................
Total value of assets (or documents) offered as security:
Attached documents include: ..........................
We hereby undertake to comply with all provisions of the Regulations on Guarantees and Cross-Guarantees of Foreign Loans issued with Decision No. .../QD-NH14 dated .../../1993 of the Governor of the State Bank
Dated: .../..../......
Guarantor Bank
General Director (Or Director)
(Signature And Seal)
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(Full Name)
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......(1)................ hereby agrees to give a cross-guarantee to .......(2)............ to enable .......(2)............. to provide a guarantee for ................. to obtain a loan from ............... as follows:
Sum cross-guaranteed: ............(in words): ......
Duration of cross-guarantee: .... months (from ..... to ........)
Guarantee fee:
Date ......./...../.......
Cross-guarantor bank
General Director (or director)
(signature and seal)
...................
(Full name)
Note: (1) - Name of cross-guarantor bank
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LIST OF DOCUMENTS DELIVERED AS SECURITY FOR GUARANTEES AND CROSS-GUARANTEES PROVIDED BY THE STATE BANK
(Submitted as appendix to application for guarantee or cross-guarantees of foreign loan)
Name of bank (applicant):..........................
Address:....................
No Name of document Doc. No. Dated Issuing body
Par value Interest Due date
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Note: This list corresponds with the list of documents used as a basis for entry into the computer database as stipulated in article 26.
Column 2 must be filled out in the following order. Government bonds, bonds, loan contracts...