外資貸款lecture-10c5批準(zhǔn)、協(xié)議簽署生效

1、Management Practice for Foreign Fund Financed Road ProjectChapter V Loan Approval, Signing and Effectiveness 貸款批準(zhǔn)、協(xié)議簽署、貸款生效Section - 2 Loan Signing貸款協(xié)議簽署After the Negotiation, Receive from the ADB Senior Counsel - Actions to Be Taken following the Loan Negotiations貸款談判結(jié)束后，亞行法律顧問會(huì)交給執(zhí)行機(jī)構(gòu)一份函件：談判結(jié)束之后續(xù)工作

2、（貸款的生效）Actions to Be Taken following the L.N.Date: 7 November 2002To: Negotiation Delegation of the Peoples Republic of ChinaFrom:Peng XiaohuaSenior CounselSubject:Shanxi Road Development II Project-Actions to Be Taken following the Loan NegotiationsThis letter summarizes the actions to be taken by

3、PRC (the Borrower), before The Loan Agreement may be : presented to the Board of ADB for approval, signed, and declared effective.A. Actions to be Taken by the BorrowerPrior to Signing (a)貸款簽字之前The Borrower may submit 由借款方遞交a letter from the Borrower stating that the negotiation text of the Loan Agr

4、eement for the Project has been approved by the Borrower, and一封借款方的關(guān)于貸款協(xié)議談判文本已獲得借款方批準(zhǔn)的說明函(ii) a letter from the Project EA stating the negotiated text of the Project Agreement for the Project has been approved by the EA. 一封EA的關(guān)于項(xiàng)目協(xié)議談判文本已獲得EA批準(zhǔn)的說明函Forms of such letter are attached as ANNEX I 1. Prior

5、 to Signing (b)ADB should also receive a letter from a duly authorized official of the Borrower, appointing a representative of the Borrower to execute and deliver, on behalf of the Borrower, Loan Agreement for the Project and一封來自貸款方適時(shí)授權(quán)官員的函件，任命一個(gè)貸款方代表，代表貸款方來簽署和交付項(xiàng)目貸款協(xié)議 a letter from a duly authoriz

6、ed official of each party to the Project Agreement, appointing a representative of the concerned party to execute and deliver, on behalf of the concerned party, the Project Agreement for the Project. 一封來自項(xiàng)目協(xié)議中有關(guān)的每一方的適時(shí)授權(quán)官員的函件，任命一個(gè)有關(guān)方代表，代表有關(guān)方來簽署和交付項(xiàng)目協(xié)議 Forms of such letter are attached as ANNEX II.2.

7、 Prior to Effectiveness (a)貸款生效之前ADB would wish to receive 亞行希望得到a legal opinion or certificate, affirming that the Loan Agreement has been duly authorized or ratified by, and executed and delivered on behalf of the Borrower and is legally binding upon the Borrower in accordance with its terms. 一封法律

8、意見書或者確認(rèn)函，確認(rèn)貸款協(xié)議已經(jīng)經(jīng)過審定或者批準(zhǔn)并代表借款方進(jìn)行了簽署和交付，這些條款來對(duì)借款方進(jìn)行合法的約束。Suggested from of such legal opinion/certificate is attached as ANNEX III 2. Prior to Effectiveness (b)ADB would wish to receive 亞行希望得到a legal opinion or certificate, affirming that the Loan Agreement has been duly authorized or ratified by, a

9、nd executed and delivered on behalf of the Project EA and IA in accordance with its terms. 一封法律意見書或者確認(rèn)函，確認(rèn)貸款協(xié)議已經(jīng)經(jīng)過審定或者批準(zhǔn)，并代表項(xiàng)目執(zhí)行機(jī)構(gòu)和項(xiàng)目實(shí)施機(jī)構(gòu)進(jìn)行了簽署和交付。 Suggested form of such legal opinion/certificate covering the Project Agreement is attached as ANNEX IV.B. CertificationPlease furnish the above noted do

10、cuments, including English translations thereof, under a transmittal letter certifying that all English translations provided to ADB are true and accurate and can be relied on completely as the original Chinese versions. 請(qǐng)?zhí)峁┥鲜鑫募?，包括英文翻譯。傳送一封信來證明所有提供給亞行的英文翻譯都是真實(shí)準(zhǔn)確的，并且和中文原稿意思完全一樣。Suggested form of tran

11、smitted letter and certification is attached as ANNEX V.ANNEX I Forms of Approval Form I: For the Borrower 借款人通知亞行駐京辦：已批準(zhǔn)貸款協(xié)議談判文本DateMr. _Country DirectorPeoples Republic of China Resident MissionAsian Development BankBeijing, Peoples Republic of ChinaRe: Shanxi Road Development II Project -Approval

12、 to the Negotiated Text of the Loan AgreementDear Mr. _:I am pleased to inform you that Peoples Republic of China has accepted the draft Loan Agreement for Shanxi Road Development II Project as negotiated.Sincere yours, Signature NameMinister of FinanceANNEX I Forms of Approval Form II: For the Proj

13、ect EA 執(zhí)行機(jī)構(gòu)通知亞行駐京辦：已批準(zhǔn)項(xiàng)目協(xié)議協(xié)商談判文本DateMr. _Country DirectorPeoples Republic of China Resident MissionAsian Development BankBeijing, Peoples Republic of ChinaRe: Shanxi Road Development II Project-Approval to the Negotiated Text of the Loan AgreementDear Mr. _:I am pleased to inform you that Project Ex

14、ecuting Agency has accepted the draft Project Agency for Shanxi Road Development II Project as negotiation.Sincere yours,_Signature_NameTitle of the Authorized Representative of the Project Executing AgencyANNEX II Forms of Authorization Form I: For the Borrower 借款人授權(quán)駐菲律賓大使 代理簽字貸款協(xié)議 DateThe Embassy

15、of Peoples Republic of China to Republic of the PhilippinesManila, PhilippinesSubject: Shanxi Road Development II ProjectThis is to authorize _, Ambassador Extraordinary and Plenipotentiary of the Peoples Republic of China to the Republic of Philippines or charge daffairs ad interim, to sign on beha

16、lf of the Peoples Republic of China the Loan Agreement for Shanxi Development II Project between the Peoples Republic of China and the Asian Development Bank.Sincere yours,_Signature_NameMinister of FinanceANNEX II Forms of Authorization Form II: For the Project Executing Agency 項(xiàng)目執(zhí)行/實(shí)施機(jī)構(gòu)授權(quán)駐菲律賓大使 代理

17、簽字項(xiàng)目協(xié)議 DateThe Embassy of Peoples Republic of China to Republic of the PhilippinesManila, PhilippinesSubject: Shanxi Road Development II ProjectThis is to Authorize _, Ambassador Extraordinary and Plenipotentiary of the Peoples Republic of China to the Republic of Philippines or charge daffairs ad i

18、nterim, to sign on behalf of _ (the Project Executing Agency or the Project Implementing Agency) the Project Agreement for Shanxi Road Development II Project between the Asian Development Bank of the one part and Shanxi Province and Shanxi Hou-yu Expressway Construction Company of the other part (th

19、e Project Executing Agency and the Project Implementing Agency).Sincere yours,_Signature_NameTitle of the Authorized Representative of the Project Executing AgencyANNEX III Form of Legal Certificate For the Loan Agreement 貸款協(xié)議的法律證明Official LetterheadLEGAL CERTIFICATEDate_PROJECTI, as Director Genera

20、l of the Department of Treaty and Law of the Ministry of Foreign Affairs of the Peoples Republic of China, have reviewed: (i) an executed copy of the Loan Agreement, dated _, (Loan) Agreement) between the Peoples Republic of China (PRC or the Borrower) and Asian Development Bank (ADB) for Shanxi Roa

21、d Development II Project (the Project); (ii) all the laws, rules, regulations, and procedures of the Borrower regarding or relating to the executing and deliver of international agreements; (iii) documentary evidence of all necessary governmental actions authorizing or this Legal Certificate. Based

22、on the above noted review, I, on behalf of the Borrower, hereby certify that:1. In accordance with the provisions of Article 89(9) of the Constitution of PRC and Article 5(1) of the Law of PRC on the Procedure of Conclusion of Treaties (Treaty Procedure Law), the State Council of PRC approved the Lo

23、an Agreement for the Project on _ date. In accordance with Article 9 of the Treaty Procedure Law, the signed Loan Agreement was subsequently Submitted to the State Council by the Ministry of Finance of PRC on _date.2. The Borrowers has taken all necessary governmental actions regarding the execution

24、 and delivery of the Loan Agreement. Evidence of this can, among other things, be found in the following documents: (a) The letter, dated _, from Mr./Ms. _ Named, Minister of Finance, PRC to ADB approving the negotiated text of the Loan Agreement on behalf of the Borrower (copy attached herewith as

25、ANNEX 1); and (b) The letter, dated _, from the Minister of Finance of the Borrower to the Ambassador of PRC to the Republic of the Philippines authorizing the said Ambassador and, in his/her absence, charge daffair ad interim, to sign the Loan Agreement, on behalf of the borrower (copy attached her

26、ewith as ANNEX 2).3. The approval and signing of the Loan Agreement conform to the Legal procedures and practice of PRC.4. The Loan Agreement has accordingly been duly authorized/ratified by, and executed and delivered on behalf of, the Borrower and is legally binding upon the Borrower in accordance

27、 with its terms._SignedDirector-GeneralDepartment of Treaty and LawMinistry of Foreign AffairsPeoples Republic of China_DateAttachments: ANNEXES 1 and 2ANNEX IV Form of Legal Opinion for the Project Agreement and Onlending Agreement 項(xiàng)目協(xié)議及轉(zhuǎn)貸協(xié)議的法律意見書Official LetterheadLEGAL OPINIONDateThis document is

28、 a legal opinion provided for the following documents:(i) the Project Agreement (Loan No. _-PRC: _Project) between Asian Development Bank (hereinafter called ADB) of the one part and Shanxi Province (hereinafter called Shanxi) and Shanxi Hou-yu Expressway Construction Company (hereinafter call SHEC)

29、 of the other part (hereinafter called the Company) of the other part; and(ii) the Onlending Agreement between Shanxi and SHEC. On _ date, the authorized representative of the Peoples Republic of China (hereinafter called PRC), Mr. _, Ambassador Extraordinary and Plenipotentiary of the PRC to the Re

30、public of the Philippines, on behalf of PRC, signed the Loan Agreement (Loan No. _-PRC: _ Project, hereinafter called the Loan Agreement) between PRC and ADB. On _ date, the authorized representative of Shanxi and SHEC, Mr. _ signed on behalf of Shanxi and SHEC the Project Agreement. On _ date, Mr.

31、_ authorized representative of Shanxi, on behalf of Shanxi, and Mr. _ , the legal representative of SHEC, on behalf of SHEC, signed the Onlending Agreement. I, _ name of the lawyer of _ name of the law firm or the Department of Justice, as an attorney at law licensed to practice in PRC with License

32、No. _official title of Department of Justice, in my capacity as legal counsel to Shanxi and SHEC, have examined the originals or copies of the following documents: （i）the Loan Agreement between PRC and ADB; （ii） the Project Agreement between ADB of the one part and Shanxi and SHEC of the other part;

33、(iii) the Onlending Agreement between Shanxi and SHEC; (iii) (v) all the related laws, rules and regulations, and corporate documents required for the conclusion of the Project Agreement and the Onlending Agreement; and(iv(vi) all the other documents that we have deemed necessary for the purpose of

34、furnishing this legal opinion.Subject to the foregoing, it is my opinion that:(i) all governmental and corporate authorizations and actions necessary to conclude the Project Agreement and the onlending Agreement have been obtained and taken.(ii) Pursuant to articles 62,105 and 107 of the Constitutio

35、n of PRC, and articles 54,56,59 and 62 of the Organic Law of the Local Peoples Congress and Local Governments of PRC, Shanxi is legally qualified to sign the Project Agreement with ADB and the Onlending Agreement with SHEC. According to the authorization by Shanxi, Mr. _ is legally authorized to sig

36、ned the Onlending Agreement on behalf of Shanxi with SHEC.(iii) SHEC is a state owned limited liability company duly organized and validly existing under the law of PRC and is licensed by and registered at Yuncheng municipal Administration of Industry and Commerce Bureau on _ date.Pursuant to the Co

37、mpany Law of PRC,SHEC is legally qualified to sign the Project Agreement with ADB and the Onlending Agreement with Shanxi. According to its business license, SHEC has the right to build and operate Hou-Yu Expressway or power plant or water supply plant.(iii)(iv) The Project Agreement signed by Mr. _

38、, the authorized representative of Shanxi and Mr. _,Chairman of the Board of Directors of SHEC, is legally binding upon Shanxi and SHEC. The Onlending Agreement signed by Mr. _ on behalf of Shanxi, and by Mr. _on behalf of SHEC is binding upon Shanxi and SHEC.Signed byName of the CounselName of the

39、Law Firm or name of the Provincial Government DepartmentANNEX V Form of Transmittal Letter and Certification遞交函及證明 Official LetterheadDateAsian Development BankP.O Box 7890980 Manila, PhilippinesAttention: Mr. _Country Director, Peoples Republic of China Resident MissionAsian Development BankBeijing

40、, Peoples Republic of ChinaRe: Shanxi Road Development II ProjectFULFILMENT OF CONDITIONS PRECEDENT TO EFFECTIVENESSDear sirs:Pursuant to Sections 10.01 and 10.02 of the Asian Development Bank Ordinary Operations Loan Regulations (Applicable to LIBOR-Based Loans Made from ADBs Ordinary Capital Resou

41、rces) read with Sections _ and _of the Loan Agreement, dated _, (Loan Agreement) Between the Peoples Republic of China (PRC or the Borrower) and ADB, in respect of the above noted Project, I am pleased to furnish the following documents as evidence of the fulfillment of conditions precedent to effectiveness of the Loan Agreement:Copy, in English, of letter, dated _, from the Minister of Finance of PRC authorizing the negotiated text of the Loan Agreement and copy, in English, of letters, dated_ , from _(authorized official or officer of Shanxi Province (Shanxi) and S