BỘ NGOẠI GIAO
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CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số: 38/2013/TB-LPQT

Hà Nội, ngày 23 tháng 07 năm 2013

Preamble

Government Agreement").

1. Loan

EUR 35,000,000,00

(the "Loan").

Project-Executing Agency") in accordance with the conditions set forth in Article 2. The Borrower shall procure that the Project-Executing Agency uses the Loan exclusively to finance the construction of the Phu Lac Wind Park as well as consulting services ("Project") and primarily to pay the foreign exchange costs. The Project-Executing Agency and KfW will define the details of the Project as well as the goods and services to be financed from the Loan in a separate agreement.

2. Channelling of the Loan to the Project-Executing Agency

2.2 Certified Translation. Prior to the first disbursement from the Loan, the Borrower shall send KfW the confirmation or the on-lending agreement respectively (together with translations thereof).

3. Disbursement

3.2 Deadline for requesting disbursement. KfW may deny disbursements after 31.12.2016 or on any other date thereafter as agreed upon in writing by KfW and the Borrower.

a) the Borrower has furnished to KfW a legal opinion satisfactory to KfW and substantially in the form of Annex 2 and certified copies (each with a German or English translation) of all documents to which this legal opinion refers proving that

bb) KfW is exempted from all taxes on income from interest, charges, fees and similar costs in the Socialist Republic of Viet Nam when granting the Loan;

c) the Guarantee from the Federal Republic of Germany mentioned in Article 8 is in force and effect without any restriction;

e) no reason for termination has occurred or is threatening; and

Prior to disbursement from the Loan KtW has the right to demand such further documents and evidence (e.g. a current financing plan for the Project) as it reasonably deems necessary.

3.5 Waiver of disbursement. Subject to the fulfilment of its obligations under Article 11 the Borrower may waive the disbursement of undisbursed Loan amounts with the consent of KfW in exchange for the payment of the non-­acceptance compensation pursuant to Article 3.6.

3.7 Borrower’s rights. If KfW fails to comply with its obligations under this Loan Agreement, the Borrower may submit a dispute to arbitration in accordance with this Loan Agreement and/or seek damages from KfW by submitting a dispute to arbitration or any court of competent jurisdiction (in accordance with Clause 14.9 (Legal Disputes)).

4.1 Commitment fee. The Borrower will pay a non-refundable commitment fee of 0,25 % p. a. on undisbursed Loan amounts. The commitment fee will be computed for the period beginning on the earliest of the following two dates (1) the date on the elapse of 12 months following the signing date of this Loan Agreement and (2) the date of the first disbursement under the Loan and lasting until such date the Loan has been disbursed in full, or fully cancelled, as the case may be.

Payment Date"). It is first due for payment on the Payment Date following the elapse of a six month period following the signing of this Loan Agreement.

Interest. The Borrower will pay interest on the Loan in accordance with the following provisions:

Fixed Interest Rate") until the last repayment instalment according to the Repayment Schedule as defined in Article 6.1 has been received.

6. Repayment and prepayment

Amount

1

1,842,000.00

2

1,842,000.00

3

1,842,000.00

4

1,842,000.00

5

1,842,000.00

6

1,842,000.00

7

1,842,000.00

8

1,842,000.00

9

1,842,000.00

10

1,842,000.00

11

1,842,000.00

12

1,842,000.00

13

1,842,000.00

14

1,842,000.00

15

1,842,000.00

16

1,842,000.00

17

1,842,000.00

18

1,843,000.00

19

1,843.000.00

35,000,000.00

6.2 Undisbursed loan amounts. Undisbursed Loan amounts will be offset against the respective last repayment instalment due at any one time pursuant to the repayment schedule unless KfW, at its own discretion, chooses another offsetting mode in an individual case.

6.4 Prepayment. The following will apply to early repayments:

b) Notice. A prepayment of a Loan amount pursuant to Article 6.4 a) is subject to notification of the prepayment by the Borrower to KfW no later than on the fifteenth Banking Day (as defined in Article 14.1) in Frankfurt am Main prior to the intended prepayment date. Such notice is irrevocable; it must specify the date on which the prepayment is to be made and the amount thereof and obligates the Borrower to pay to KfW the stated amount on the stated date.

d) Amounts due. Together with the prepayment the Borrower will also pay the following amounts:

bb) all interest accrued on the prepaid Loan amount up until the date of the prepayment.

6.5 Revised repayment schedule. In the event that Article 6.3 (Disbursements after the start of repayment) or Article 6.4 (Prepayment) applies, KfW will send the Borrower a revised repayment schedule that will become an integral part of this Loan Agreement and will replace the repayment schedule valid until such time.

7.1 Calculation. Interest, the commitment fee, default interest pursuant to Article 7.5, lump-sum compensation for overdue amounts pursuant to Article 7.6, non-acceptance compensation and prepayment compensation will all be calculated on the basis of a 360-day year with 30-day months.

7.3 Account number, time of crediting. The Borrower will be released from its payment obligations arising from this Loan Agreement as soon as and to the extent that the corresponding amounts have been credited to KfW at KfW's free disposal without any deductions in Euro and no later than 10:00 a.m. in Frankfurt am Main to KfW’s account IBAN DE81 5002 0400 3100 1205 37 held with KfW, Frankfurt am Main, with additional reference of the due date "Ref. YYYYMMDD") or to another account specified by KfW.

7.5 Default interest. The following will apply to any overdue repayment instalment and overdue prepayment:

7.6 Lump-sum compensation. For overdue amounts (with the exception of such repayment instalments and prepayments as mentioned in Article 7.5 (Default interest) KfW may, without prior reminder, request lump-sum compensation of 3% p. a. above the Base Rate applicable on the respective due date for the period beginning on the due date and ending on the date of payment of such overdue amounts. The lump-sum compensation must be paid immediately upon KfW's first demand. The Borrower shall be free to prove that no damage was in fact incurred or that the damages were not incurred in the amount as stated. The "Base Rate" is the interest rate announced by the German Central Bank (Deutsche Bundesbank) as base rate prevailing on the respective due date.

7.8 Calculations made by KfW. Absent manifest error KfW's determinations and its calculation of amounts under this Loan Agreement and in connection with this Loan Agreement shall constitute prima-facie evidence.

KfW will have payment claims under this Loan Agreement guaranteed by the Federal Republic of Germany prior to the first disbursement.

9.1 Prohibition of pledge or mortgage. The Borrower may not itself and will ensure that the Project-Executing Agency will neither pledge, nor mortgage nor alienate the Project assets before repayment in full of the Loan without KfW's prior consent.

10. Costs and public charges

10.2 Costs. The Borrower will bear all costs and expenses accruing in connection with the disbursement and repayment of the Loan, in particular remittance and transfer costs (including conversion fees), as well as all reasonable, direct and documented costs and expenses accruing in connection with the enforcement of this Loan Agreement and of all other documents related to this Loan Agreement as well as all rights of KfW resulting from this Loan Agreement.

11. Special obligations

a) prepare, implement, operate and maintain the Project in conformity with sound financial, technical, and environmental practices and substan­-tially in accordance with the Project conception agreed upon between the Project-Executing Agency and KfW;

c) award the contracts for the goods and services to be financed from the Loan upon prior international competitive bidding;

e) enable the representatives of KfW at any time to inspect such books and records and any and all other documentation relevant to the implementation and operation of the Project, and to visit the Project and all the installations related thereto;

g) immediately and of its own accord, forward to KfW any queries received by the Borrower from the OECD or its members under the so-called "Agreement for Untied ODA Credits Transparency" following the award of the contracts for the supplies and services to be financed from the Loan and will coordinate the reply to any such queries with KfW.

11.3 The Borrower will by itself and will cause the Project-Executing Agency to

b) promptly inform, each of their own accord, KfW of (i) the occurrence or potential occurrence of an Event of Default and (ii) any and all circumstances precluding or seriously jeopardizing the implementation, the operation or the purpose of the Project.

11.5 Compliance. The Borrower will by itself and will cause the Project-Executing Agency to ensure that the          persons whom they entrust with the preparation and implementation of the Project, the award of the contract for the supplies and services to be financed, and with requesting the Loan amounts do not demand, accept, make, grant, promise or accept the promise of unlawful payments or other advantages in connection with these tasks.

11.7 Money laundering. The Borrower will by itself and will cause the Project-Executing Agency on demand of KfW to promptly make available to KfW all information and documents which KfW requires to fulfil its obligations to prevent money laundering and terrorism financing as well as for the continuous monitoring of the business relationship with the Project-Executing Agency, which is necessary for this purpose.

12.1 Events of Default. KfW may exercise the rights set forth under Article 12.2 (Legal consequences of an Event of Default) if an event occurs which constitutes a material reason. In particular, the following events shall each constitute a material reason:

b) obligations under this Loan Agreement or under separate agreements pertinent to this Loan Agreement have been breached;

d) this Loan Agreement or any agreement entered into separately to this Loan Agreement has ceased in whole or in part to have a binding effect upon the Borrower or the Project-Executing Agency or is no longer enforceable against the Borrower or the Project-Executing Agency;

f) any written declaration, confirmation, information or representation or warranty given by the Borrower and/or the Project-Executing Agency which is in the opinion of KfW essential for the granting and maintaining of the Loan proves to be incorrect, misleading or incomplete in any material aspect;

h)as reasonably estimated by KfW, the assets, financial or earnings situation of the Borrower has worsened considerably or other extraordinary circumstances occur which delay or preclude the fulfilment of obligations under this Loan Agreement.

a) its obligations under this Loan Agreement terminate, and

12.3 Compensation for damages. In the event that this Loan Agreement is terminated in full or in part as per Article 12.2 hereof, the Borrower will pay non-acceptance compensation in accordance with Article 3.6 (Non-­acceptance compensation) and/or prepayment compensation in accordance with Article 6.4 c) (Prepayment compensation).

13.1 Representation of the Borrower. The Minister of Finance of the Socialist Republic of Viet Nam and such persons as designated by him or her to KfW and authorised by specimen signatures authenticated by him or her will represent the Borrower in the execution of this Loan Agreement. The power of representation will not expire until its express revocation by the representative of the Borrower authorised at such time has been received by KfW.

Postfach 11 11 41

Germany

28 Tran Hung Dao Street

Socialist Republic of Viet Nam

14. General provisions

14.3 Partial invalidity and gaps. If any provision of this Loan Agreement is or becomes invalid, or if there is a gap in any of the provisions of this Loan Agreement, this will not affect the validity of the remaining provisions hereof. The parties to this Loan Agreement will replace any invalid provision by a legally valid one which comes as close as possible to the spirit and purpose of the invalid provision. The parties will fill any gap in the provisions with a legally valid provision which comes as close as possible to the spirit and purpose of this Loan Agreement.

14.5 Assignment. The Borrower may not assign or transfer, pledge or mortgage any claims from this Loan Agreement.

14.7 Limitation period. All claims of KfW under this Loan Agreement expire after five years from the end of the year in which such claim has accrued and in which KfW has become aware of the circumstances constituting such claim or could have become aware of them without gross negligence.

14.9 Legal disputes.

aa) The arbitration tribunal will consist of one or three arbitrators who will be appointed and will act in accordance with the Arbitration Rules of the International Chamber of Commerce (ICC) applicable from time to time.

14.10 Transmission of information. KfW is entitled to transmit to the Federal Republic of Germany information in connection with the conclusion and the execution of this Loan Agreement. KfW and the Federal Republic of Germany are entitled to pass on information related to the Loan and to the Project to international organisations engaged in the collection of statistical data, particularly in connection with matters related to debt service.

This Loan Agreement is executed in two (2) originals in the English language.

this 4 July, 2013

this

represented by the

Vice Minister of Finance.

TRƯƠNG CHÍ TRUNG

Period

until...

Maximum total amount that may be disbursed until end of each disbursement period (accumulated)

(all figures in €)

% of total loan amount

1

30.12.2013

1.750.000

5%

2

30.06.2014

3.500.000

10%

3

30.12.2014

8.750.000

25%

4

30.06.2015

22.750.000

65%

5

30.12.2015

33.250.000

95%

6

30.06.2016

35.000.000

100%

MINISTRY OF JUSTICE
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.                   /BTP-PLQT

Hanoi, April       ,2012

Postfach 11 11 41

Federal Republic of Germany

Dear Sirs/Madam,

After having examined:

- Constitutional documents of the Borrower and documentary evidence of all necessary governmental actions authorising the execution and delivery of the Agreement,

as I have considered to be necessary or desirable to examine in order that I may have this opinion. ;

Accordingly, I am of the opinion that under the laws of Vietnam as at the date hereof;

2. The Agreement as signed by Mr. [Dr. Nguyen Thanh Do, General Director of the External Finance Department of the Ministry of Finance of the Socialist Republic of Vietnam], who was authorised by [HE Mr. Minister of Finance Vuong Dinh Hue], has been duly executed and constitutes legally binding obligations of the Borrower enforceable against it at law in accordance with its respective terms; (the signer will be determined later, there may not be Mr. Nguyen Thanh Do)

4. Every consent, license, approval or authorization of any governmental authority or agency required in connection with the execution, delivery, performance, legality, validity or enforceability of the Agreement and the borrowing under the Agreement (including the obtaining and transference of all amounts due under the Agreement)have been duly obtained and are in full force and effect;

6. The submission by the Borrower to arbitration in accordance with the Arbitration Agreement between KfW and the Borrower pursuant to Article [14.9] of the Agreement is valid under the laws of Vietnam;

8. The waiver by the Borrower of any right of immunity on grounds of sovereignty or otherwise from jurisdiction, attachment (before or after judgment) or execution as provided in Article 14.8 of the Agreement is valid.

10. Any final and conclusive award obtained in the arbitral tribunal stipulated in the Agreement shall be recognized and enforced in accordance with the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards and Vietnam Civil Procedure Code.