Chương II Thông tư 03/2023/TT-BKHCN: Các biện pháp xử lý rủi ro

Chapter II

RISK TREATMENT MEASURES

Article 9. Revision of payment periods/amounts

1. An enterprise may be eligible for revision of payment periods/amounts if it faces risks as prescribed in clause 1 or clause 2 Article 6 of this Circular.

2. An enterprise may be eligible for revision of payment periods/amounts when meeting all of the following requirements:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) It has difficulties in business operations resulting in its failure to repay debts (principal and/or interest) in full and on schedule under the signed contract;

d) It has a viable production and business plan and a debt repayment plan after the debt repayment term is revised;

c) It has submitted an adequate application as prescribed in Clause 5 of this Article.

3. The revision of payment periods/amounts shall change neither of the repayment period, the last payment deadline, and total amount of debts payable as specified in the signed contract.

4. The revision of payment periods/amounts shall be considered and decided by NATIF’s Director.

5. Application for revision of payment periods/amounts sent by the enterprise includes:

a) The application form which is signed by the enterprises legal representative and includes the following contents: Causes of risk resulting in its failure to repay debts under the signed contract; capital and asset damage level; book value of the debts; adopted risk treatment measures (if any) and proposed risk treatment measures; commitments on the feasibility of the business plan and debt repayment plan after risk treatment;

b) Authenticated duplicates of the financial statements audited by independent audit organizations or sent to tax authorities of the latest 02 years before the date of application for risk treatment or of the year preceding the year in which the enterprise applies for risk treatment if the enterprise has operated for a period less than 02 years;

c) Certified true copy of the debt reconciliation statement by the time of application for risk treatment;

d) Other relevant documents (if any).

6. After receiving an adequate application as prescribed in Clause 5 of this Article, NATIF shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; consider measures to urge debt recovery, adopted risk treatment measures and results thereof (if any), the need to apply proposed risk treatment measures, the capacity to repay the debt (principal, interest) of the enterprise after the proposed risk treatment measures are adopted; issue and organize the implementation of the decision to revise payment periods/amounts.

Article 10. Extension of repayment period

1. Enterprises facing risks as prescribed in Clause 1, Clause 2, or Clause 3 Article 6 of this Circular.

2. An enterprise may be eligible for extension of repayment period when meeting all of the following requirements:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) It has a viable production and business plan and a debt repayment plan after the debt repayment term is revised;

d) It has submitted an adequate application as prescribed in Clause 5 of this Article.

3. The extended repayment period must fall within the loan term and not exceed the maximum loan term of 7 years.

4. The extension of repayment period shall be considered and decided by President of NATIF’s Management Council.

5. The enterprise shall prepare an application for extension of repayment period as prescribed in Clause 5 Article 9 hereof.

6. After receiving an adequate application as prescribed in Clause 5 of this Article, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; consider measures to urge debt recovery, adopted risk treatment measures and results thereof (if any), the need to apply proposed risk treatment measures, the capacity to repay the debt (principal, interest) of the enterprise after the proposed risk treatment measures are adopted; consult the Risk Treatment Council on risk treatment measures, and present them to the competent authorities specified in Clause 4 of this Article for consideration and decision on adoption of a risk treatment measure.  Once the risk treatment measure has been decided upon, the Director of NATIF shall grant the extension of debt.

Article 11. Debt charge-off

1. Enterprises facing risks as prescribed in Clause 1, Clause 2 or Clause 3 Article 6 of this Circular are eligible for debt charge-off.

2. An enterprise may be eligible for debt charge-off when meeting all of the following requirements:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) It faces difficulties during business resulting in its loss or accumulated losses incurred within at least 01 year preceding the year of risk treatment and its failure to repay debt (principal and/or interest) in full and on schedule as agreed upon in the signed contract;

d) It has a viable production and business plan and a debt repayment plan after the debt is charged off;

e) It has submitted an adequate application as prescribed in Clause 5 of this Article.

3. The period over which a debt will be charged off shall not exceed 3 years and not included in the loan term. During the period over which a debt is charged off, the enterprise shall not incur interest and is not required to pay outstanding principal and interest.

4. The Minister of Science and Technology shall consider deciding the debt charge-off as prescribed in points a, b, c, e clause 1, point b clause 4 Article 31 of NATIF’s Charter.

5. The enterprise shall prepare an application for debt charge-off as prescribed in Clause 5 Article 9 hereof.

6. After receiving an adequate application as prescribed in Clause 5 of this Article, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; consider measures to urge debt recovery, adopted risk treatment measures and results thereof (if any), the need to apply proposed risk treatment measures, the capacity to repay the debt (principal, interest) of the enterprise after the proposed risk treatment measures are adopted; consult the Risk Treatment Council on risk treatment measures, and present them to the competent authorities specified in Clause 4 of this Article for consideration and decision on adoption of a risk treatment measure.  Once the risk treatment measure has been decided upon, the Director of NATIF shall charge off the debt.

Article 12. Debt sale

1. Enterprises facing risks as prescribed in Clause 1, Clause 2 or Clause 3 Article 6 of this Circular are eligible for debt sale.

2. An enterprise may be eligible for debt sale when meeting all of the following requirements:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) It faces difficulties during business resulting in its loss or accumulated losses incurred within at least 01 year preceding the year of risk treatment and its failure to repay debt (principal and/or interest) in full and on schedule as agreed upon in the signed contract;

d) It has submitted an adequate application as prescribed in Clause 5 of this Article.

3. The debt sale between NATIF and the debt buyer shall comply with SBV’s regulations on trading of debts of credit institutions and foreign bank branches (FBBs) and other relevant laws.

Either partial or entire book value of the debt may be sold, and the debt is sold first by auction In case of unsuccessful auction, the Fund may consider deciding to sell debts by negotiation.

4. Authority to decide the debt sale:

a) NATIF Management Board will decide whether to sell the debt as prescribed in point c clause 4 Article 31 of NATIF’s Charter, SBV’s regulations on trading of debts based on whether doing so will decrease NATIF’s charter capital;

b) If the debt sale does not decrease NATIF’s charter capital, NATIF’s Director shall request the Minister of Science and Technology to present it to the Prime Minister for consideration as prescribed in points a, b, c, e clause 1 and point a clause 4 Article 31 of NATIF’s Charter.

5. The enterprise or NATIF may apply for debt sale:

a) The enterprise shall prepare an application for debt sale as prescribed in Clause 5 Article 9 hereof. If the enterprise applies for risk treatment of total book value of debt, the application requires no commitment about feasibility of the business plan and the debt repayment plan if the application is accepted.

b) NATIF shall prepare an application for debt sale including:

- The written proposal for risk treatment made by NATIF, indicating the following:  the enterprise’s business situation, debt repayment (principal, interest) under the contract, associated risks and their causes, the level of capital and property damage incurred by the enterprise, the book value of the debt.  The application for risk treatment must specify the adopted risk treatment measures and associated results (if any), and proposed risk treatment measures;  

The record of capital and asset damage incurred by the enterprise (the enterprise’s certification thereon is not required);

- Propose risk treatment for part or all of the book value of the debt;

- The original of the debt buyer’s written request for or letter of acceptance of debt purchase (if any).

- Other documents and instruments as prescribed by law or requested by the debt buyer (if any).

6. Debt sale methods

a) Selling debts by auction

- NATIF shall employ an auction organization that is established and operating in accordance with regulations of law to organize or itself organize the auction of debts in accordance with regulations of law on property auction;

- The starting price for the auction shall be determined in accordance with SBV’s regulations on determination of value of debts traded by credit institutions.

b) Selling debts by negotiation

- NATIF and the debt buyer shall enter into negotiation on selling debt directly or through a broker according to the market principles;

- The selling price of debt according to market principles shall refer to the starting price for the debt as prescribed in point a of this clause.

7. Debt sale and purchase contract

NATIF’s debt sale shall be made by entering into a debt sale and purchase contract in which the selling price and transfer of the creditor’s rights from NATIF to the debt buyer and other relevant agreements are specified.

8. Settlement of difference between the selling price and book value of the debt (after deducting all expenses as prescribed by law).

a) In case the selling price of a debt is greater than its book value: the positive difference shall be settled according to point b (3) clause 5 Article 40 of NATIF’s Charter;

b) In case the selling price of a debt is less than its book value: the positive difference shall be settled according to point a clause 6 Article 31 of NATIF’s Charter.

9. Accounting for debt sale

NATIF shall carry out accounting for its debt sale according to current regulations on accounting applied to NATIF.

10. Implementation of risk treatment:

a) After receiving an adequate application as prescribed in point a Clause 5 of this Article from an enterprise, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment and present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of the risk treatment measure. Once the risk treatment measure has been decided upon, the Director of NATIF shall sell the debt;

b) After receiving an adequate application as prescribed in point b Clause 5 of this Article from NATIF, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment and present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of a risk treatment measure. Once the risk treatment measure has been decided upon, the Director of NATIF shall sell the debt.

Article 13. Disposition of collateral

1. Enterprises facing risks as prescribed in Clause 1, Clause 2 or Clause 3 Article 6 of this Circular are eligible for disposition of collateral.

2. Enterprises are eligible for disposition of collateral when meeting all the following requirements:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) It faces difficulties during business resulting in its loss or accumulated losses incurred within at least 01 year preceding the year of risk treatment and its failure to repay debt (principal and/or interest) in full and on schedule as agreed upon in the signed contract;

d) It has submitted an adequate application as prescribed in Clause 5 of this Article.

3. The disposition of collateral shall be carried out in accordance with the Civil Code and relevant laws on disposition of collateral; information about the secured party and the grantor, and method for disposition of collateral shall be specified in the collateral contract.

4. Authority to decide disposition of collateral:

a) NATIF Management Board will decide whether to dispose of the collateral as prescribed in point c clause 4 Article 31 of NATIF’s Charter, the Civil Code and relevant regulations on collateral disposition based on whether doing so will decrease NATIF’s charter capital;

b) If the collateral disposition does not decrease NATIF’s charter capital, NATIF’s Director shall request the Minister of Science and Technology to present it to the Prime Minister for consideration as prescribed in points a, b, c, e clause 1 and point a clause 4 Article 31 of NATIF’s Charter, the Civil Code, and relevant regulations on collateral disposition.

5. Application for disposition of collateral:

a) Application for disposition of collateral prepared by an enterprise:

The enterprise shall prepare an application for disposition of collateral as prescribed in Clause 5 Article 9 hereof.

If the enterprise applies for risk treatment of total book value of debt, the application requires no commitment about feasibility of the business plan and the debt repayment plan if the application is accepted;

b) NATIF shall prepare an application for disposition of collateral including:

- The written application for risk treatment made by NATIF, indicating the following:  the enterprise’s business situation , debt repayment (principal, interest) under the contract, associated risks and their causes, the level of capital and property damage incurred by the enterprise, the book value of the debt.  The application for risk treatment must specify the adopted risk treatment measures and associated results (if any), and proposed risk treatment measures; 

- The record of capital and asset damage incurred by the enterprise (the enterprise’s certification thereon is not required);

- Propose risk treatment for part or all of the book value of the debt;

- Other documents and instruments as prescribed by law regulations on disposition of collateral (if any).

6. Methods for disposition of collateral

a) Auction of collateral;

b) Sale of collateral by the secured party;

c) The secured party’s acceptance of collateral instead of fulfillment of obligations by the securing party;

d) Other methods as prescribed by law regulations on disposition of collateral.

7. Settlement of difference between the proceeds from collateral disposition and book value of the debt (after deducting all expenses as prescribed by law):

a) In case the proceeds from the collateral disposition are greater than the book value of debt, the positive difference shall be settled according to the signed contract (if any) or returned to the enterprise;

b) In case the proceeds from the collateral disposition are less than the book value of debt, the negative difference shall be settled according to point a clause 6 Article 31 of NATIF’s Charter;

NATIF is entitled to request the enterprise to make up such difference. The proceeds from the negative difference shall be settled according to point b (3) clause 5 Article 40 of NATIF’s Charter.

8. Implementation of risk treatment:

a) After receiving an adequate application as prescribed in Clause 5 of this Article from an enterprise, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment and present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of risk treatment measures. Once the risk treatment measure has been decided upon, the Director of NATIF shall dispose of the collateral;

b) After receiving an adequate application as prescribed in point b Clause 5 of this Article from NATIF, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment and present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of a risk treatment measure. Once the risk treatment measure has been decided upon, the Director of NATIF shall dispose of the collateral.

Article 14. Transfer to off-balance sheet

1. NATIF may transfer a debt to the off-balance sheet if its collateral has been disposed of as specified in Article 13 hereof and at least a risk treatment measure has been adopted as prescribed in Articles 9, 10, 11, 12, 15, 15 hereof but the proceeds earned are insufficient to fully repay the debt.

2. The transfer to off-balance sheet must undertake that:

a) NATIF transfers the entire loan balance (the book value of the debt) to the loss principal and interest loss account and uses the loan loss reserves to deal with credit risks of the principal;

b) During the time of transfer to off-balance sheet, NATIF still calculates interest on the remaining outstanding balance under the contract after adopting risk treatment measures as prescribed in Articles 11, 12, 13, 15, 16 of this circular;

c) After transferring the debt to off-balance sheet, NATIF continues to monitor and take measures to recover the debt.  Related organizations and individuals are prohibited from informing the enterprise, which has taken out the loan, about the transfer of the enterprise's debt to off-balance sheet.

3. The proceeds from the debts which have been transferred to off-balance sheet shall be handled in accordance with accounting law.

4. The following debts shall be removed from the off-balance sheet:

a) The debts of the enterprise facing risks due to one of the causes mentioned in Clauses 2 and 4, Article 6 of this Circular: At the end of the bankruptcy or after the local government or competent court issues a decision declaring that the owner of the sole proprietor or one-member limited liability company loses his/her active legal capacity, dies, disappears, or leaves no property to repay their debts (based on documents on the book value of the debts);

b) The debts that have been recorded in the off-balance sheet for at least 5 years and uncollectible (the debts’ book value) even after all attempts at recovery.

Article 15. Outstanding interest write-off

1. Enterprises facing risks as prescribed in Clause 1, 2 or 4 Article 6 of this Circular are eligible for outstanding interest write-off.

2. An enterprise may be eligible for outstanding interest write-off when meeting all of the following requirements:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) It faces difficulties during business resulting in its loss within at least two (02) years preceding the year of risk treatment, or accumulated losses incurred within 01 year preceding the year of risk treatment (if the enterprise has operated for a period less than 02 years), and its failure to repay debt (principal and/or interest) in full and on schedule as agreed upon in the signed contract (except the case specified in Clause 4 Article 6 hereof);

d) It has a viable production and business plan and a debt repayment plan after the outstanding interest is written off (unless it is made bankrupt);

dd) It has submitted an adequate application for risk treatment as prescribed in Clause 5 of this Article;

e) With regard to the case prescribed in Clause 1, Clause 2 Article 6 hereof: Despite the adoption of the risk treatment measure prescribed in Article 12 or Article 13 hereof, there is still outstanding interest that needs to be collected;

g) With regard to the case prescribed in Clause 4 Article 6 hereof: Despite the adoption of the risk treatment measure prescribed in Article 12 or Article 13 hereof, there is still outstanding interest that needs to be collected.

3. An outstanding interest is only written off once.

4. NATIF’s Director shall request the Minister of Science and Technology to decide adoption of outstanding interest write-off and amount thereof as prescribed in point b clause 4 Article 31 of NATIF’s Charter.

5. The enterprise or NATIF may apply for outstanding interest write-off:

a) If an enterprise faces risks as prescribed in Clause 1, Clause 2 Article 6 hereof, it may prepare an application for outstanding interest write-off as prescribed in Clause 5 Article 9 hereof;

b) NATIF shall request the outstanding interest write-off for the enterprise that faces risks as prescribed in Clause 4 Article 6 hereof.  NATIF shall prepare an application for outstanding interest write-off which contains:

- The written application for risk treatment made by NATIF, indicating the following:  the enterprise’s business situation, debt repayment (principal, interest) under the contract, associated risks and their causes, the level of capital and property damage incurred by the enterprise, the book value of the debt.  The application for risk treatment must specify the adopted risk treatment measures and associated results (if any), and proposed risk treatment measures;

- The record of capital and asset damage incurred by the enterprise (the enterprise’s certification thereon is not required);

- Propose risk treatment for part or all of the book value of the debt;

- The original of the decision to declare bankruptcy issued by the civil judgment enforcement agency;

- Other documents and instruments as prescribed by law regulations (if any).

6. Implementation of outstanding interest write-off:

a) In case of outstanding interest write-off requested by the enterprise:  After receiving an adequate application as prescribed in Clause 5 of this Article from an enterprise, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment, consult with the Risk Treatment Council on the risk treatment measures, and then present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of risk treatment measures. Once the risk treatment measure has been decided upon, the Director of NATIF shall write off the outstanding interest;

b) In case of outstanding interest write-off requested by NATIF:  After receiving an adequate application as prescribed in Clause 5 of this Article from NATIF, NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment, consult with the Risk Treatment Council on the risk treatment measures, and then present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of risk treatment measures. Once the risk treatment measure has been decided upon, the Director of NATIF shall write off the outstanding interest.

Article 16. Outstanding principal write-off

1. Enterprises facing risks as prescribed in Clause 1, 2 or 4 Article 6 of this Circular are eligible for outstanding principal write-off.

2. NATIF will apply for write-off of outstanding principal incurred by an enterprise when it meets all eligibility requirements below:

a) It is an entity mentioned in Clause 1 of this Article;

b) It has used the borrowed funds for the purposes specified in the contract;

c) Despite the adoption of the risk treatment measure prescribed in Article 12 or Article 13 hereof, there is still outstanding principal that needs to be collected;

d) It has submitted an adequate application as prescribed in Clause 5 of this Article.

3. An outstanding principal shall be written off once only.

4. The Minister of Science and Technology will decide whether to adopt the outstanding principal write-off and amount thereof based on whether doing so will decrease NATIF’s charter capital as prescribed in point b clause 4 Article 31 of NATIF’s Charter. If the outstanding principal write-off does not decrease NATIF’s charter capital, NATIF’s Director shall request the Minister of Science and Technology to present it to the Prime Minister to adopt the outstanding principal write-off and amount thereof  as prescribed in points a, b, c, e clause 1 and point a clause 4 Article 31 of NATIF’s Charter.

5. NATIF shall prepare an application for outstanding principal write-off including:

- The written application for risk treatment made by NATIF, indicating the following:  the enterprise’s business situation , debt repayment (principal, interest) under the contract, associated risks and their causes, the level of capital and property damage incurred by the enterprise, the book value of the debt.  The application for risk treatment must specify the adopted risk treatment measures and associated results (if any), and proposed risk treatment measures;

- The record of capital and asset damage incurred by the enterprise (the enterprise’s certification thereon is not required);

- Propose risk treatment for part or all of the book value of the debt;

- The original of the decision to declare bankruptcy issued by the civil judgment enforcement agency;

- Other documents and instruments as prescribed by law regulations (if any).

6. NATIF’s Director shall appraise the received application, carry out risk assessment and determination of capital and asset damage incurred by the enterprise; make a report on risk treatment, consult with the Risk Treatment Council on the risk treatment measures, and then present it to the competent authority specified in Clause 4 of this Article for consideration and decision on adoption of risk treatment measures. Once the risk treatment measure has been decided upon, the Director of NATIF shall write off the outstanding principal.

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