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THE
STATE BANK OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No.
12/2022/TT-NHNN
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Hanoi,
September 30, 2022
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CIRCULAR
ON GUIDELINES FOR FOREIGN EXCHANGE ADMINISTRATION IN RESPECT
OF ENTERPRISE’S FOREIGN BORROWING AND FOREIGN DEBT REPAYMENT OF ENTERPRISES
Pursuant to the Law on the State
Bank of Vietnam dated June 16, 2010;
Pursuant to the Law on Credit
Institutions No. 47/2010/QH12 dated June 16, 2010; Law on amendments to the Law
on Credit Institutions dated November 20, 2017;
Pursuant to the Law dated
November 26, 2014 on management and utilization of state capital invested in
the enterprises’ manufacturing and business activities;
Pursuant to the Ordinance on
Foreign Exchange dated December 13, 2005 and the Ordinance on amendments to the
Ordinance on Foreign Exchange dated March 18, 2013;
Pursuant to the Government's
Decree No.219/2013/ND-CP dated December 26, 2013 on management of enterprise’ s
foreign borrowing and repayment of foreign debts which are not guaranteed by
the Government;
Pursuant to the Government's
Decree No. 16/2017/ND-CP dated November 17, 2017 on defining the functions,
tasks, powers and organizational structure of the State Bank of Vietnam;
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The Governor of the State Bank
of Vietnam hereby issues the Circular on guidelines for foreign exchange
administration in respect of foreign borrowing and foreign debt repayment of
enterprises.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope of application
1. This
Circular provides for the followings:
a) Procedures for registration and
registration for changes of enterprises’ foreign loans which are not guaranteed
by the Government;
b) Opening and use of accounts for
foreign loan and debt repayment (hereinafter referred to as foreign loan
accounts) by borrowers; opening and use of checking accounts by creditors at
authorized credit institutions located within the territory of Vietnam to
arrange foreign loans;
c) Fund withdrawal, debt repayment
and other fund transfer transactions in relation to arrangement of foreign
loans;
d) Foreign exchange administration
in respect of transactions relating to collateral realization within the
territory of Vietnam, guarantee transfer for foreign loans, reimbursement of
indebtedness amounts between the borrower and the grantor of security interest
(hereinafter referred to as the grantor) in relation to the foreign loan not
guaranteed by the Government;
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e) Mechanism for making statistical
reports on enterprises’ foreign borrowing and repayment of foreign loans which
are not guaranteed by the Government.
2. Registration,
registration for changes in respect of foreign loans provided in the form of
international bond issuance of enterprises which are not guaranteed by the Government
under the particular provisions set forth by the State Bank of Vietnam
(hereinafter referred to as State Bank) on guidelines for foreign exchange
administration as for bond issuance to international market of enterprises
which are not guaranteed by the Government.
3. Registration,
registration for changes in respect of foreign loans which are guaranteed by
the Government under the particular provisions set forth by the State Bank on
guidelines for procedures for registration, registration for changes in foreign
loans and bond issuance to international market of enterprises which are not
guaranteed by the Government
4. Opening and
use of foreign currency accounts for arranging foreign loans under the
particular provisions set forth by the State Bank in the matter of opening and
use of foreign currency accounts overseas by residents being organizations.
Article 2.
Applicable entities
1. Resident
enterprises, cooperatives, cooperative federations, credit institutions and
foreign bank branches established and licensed within the territory of Vietnam
who are known as the party applying for foreign loans (hereinafter referred to
as borrower).
2. Credit
institutions, foreign bank branches in Vietnam providing account services
relating to foreign borrowing for the borrower; providing bank transfer
relating to foreign borrowing and repayment of foreign debts that are not
guaranteed by the Government.
3. Organizations,
individuals who are known as the party offering guarantee and security for
foreign loans of the borrower.
4. Credit
institutions, foreign bank branches who are entrusted with lending tasks by the
non-resident trusting party.
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6. Individuals
or affiliations of the State Bank assuming responsibilities for use and
management of information posted on the website.
Article 3.
Definition
For the purposes of this Circular,
terms used herein shall be construed as follows:
1. Foreign
loan is a generic term which means foreign loans that are not guaranteed by the
Government (hereinafter referred to as conventional loan) and those that are
guaranteed by the Government by means of foreign borrowing through borrowing
contracts, deferred payment contracts for import of goods, lending entrustment
contracts, contracts for finance leasing or debt instrument issuance on the
international market of the borrower.
2. Bank
providing account services (hereinafter referred to as account service
provider) refer to credit institutions, foreign bank branches operating within
the territory of Vietnam where the borrower and guarantor of foreign loans open
checking accounts to withdraw funds, repay foreign debts and make other bank
transfer transactions relating to the foreign borrowing and repayment.
3. Bank
providing secured transactions refer to credit institutions, foreign bank
branches operating within the territory of Vietnam which provide money transfer
for performing guarantee obligations or for realizing collateral relating to
foreign loans.
4. Finance
leasing means that the lessee being a resident obtains a medium-term or
long-term credit loan under a finance lease contract with the lessor being a
non-resident; the finance lease contract shall be determined in accordance with
the accounting standards set forth by the Ministry of Finance.
5. Debt
instruments refer to treasury bills, bills of exchange, bonds issued by the
borrower outside the territory of Vietnam to non-resident entities.
6. Foreign
loans denominated in Vietnam dong refer to foreign loans disbursed to the
foreign loan account in Vietnam dong of the borrower or debt obligations
arising out of these loans denominated in Vietnam dong.
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8. Foreign
loan use plan means a plan for production and business to be financed by the
foreign loan which the borrower justifies their legal and reasonable purposes
and the need of foreign loan.
Article 4.
Rules for administration of foreign loans arranged by means of deferred payment
for import of goods
1. Foreign
loan granted by deferral of payment for imported goods shall include imports on
which the first date of withdrawal precedes the last date of payment; in which:
a) The date of withdrawal of
foreign loan granted by deferral of payment for imported goods shall be:
The ninetieth day from the date
that transport documents are issued if the bank providing account services
requires transport documents included in the payment documents;
The forty-fifth day from the date
that the examination of information in the cleared customs declaration if the
bank providing account services does not require transport documents included
in the payment documents;
b) The last date of payment shall
be:
The final date of the payment time
limit as shown in the contract;
The last date of payment in reality
if the contract is not followed or does not specify any payment time limit;
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2. Conventional
loans made in the form of deferred payment for import of goods shall not be
covered by the provisions on registration or registration for changes of
foreign loans set forth in Chapter III hereof.
3. The bank
transfer of repayment of the debt (principal and interest) and charges relating
to the foreign loan granted by deferral of payment for imported goods is not
necessarily made via the foreign loan account.
Article 5.
Using the website for declaration of information for registration or
registration for changes of loans, and preparing review reports on arrangement
of conventional loans
1. Where the
borrower chooses the website to carry out declaration of information for
registration or registration for changes of loans in order to reduce
administrative processing time, the borrower shall declare information on the
registered loan, the request for certification of registration for changes
before submitting an application for registration or registration for changes
of the foreign loan.
2. As for the
report on arrangement of foreign loan, the borrower shall use the website to
make an online report as per this Circular.
Article 6.
Arrangement of foreign loans after the borrower is fully divided, partly
divided, consolidated or acquired
1. When the
borrower is fully divided, partly divided, consolidated or acquired, the
successor shall take on the rights and obligations in relation to the foreign
loan and continue to discharge the responsibilities of the borrower as
prescribed in this Circular.
2. In case
only 01 entity inherits the rights and obligations related to the foreign loan
of the borrower that is fully or partly divided: the creditor and the
transferee shall reach an agreement in writing to determine which organization
will inherit the rights and obligations of the borrower that is fully or partly
divided relating to the foreign loan, ensuring that it does not go against the
relevant laws.
3. After the
full or partial division, if multiple entities are held jointly liable for the
obligation to repay the foreign loan:
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b) The mentioned jointly-liable
entities shall open a joint checking account as an account for foreign
borrowing and repayment. In case they do not jointly open a joint checking
account to act as a foreign loan account, these entities must ensure the
opening of such foreign loan accounts at the same account service provider to
continue to repay the foreign loan;
c) Where one of the mentioned
jointly-liable entities is a foreign-invested enterprise, the use of the
account to repay this loan shall be carried out in accordance with this
Article. The bank where the mentioned jointly-liable entities open the foreign
loan account is not required to be the bank where the foreign-invested capital
account is opened.
4. The account
service provider of the borrower that is fully or partly divided, consolidated
or acquired shall provide information on the withdrawal of loan proceeds and
repayment of foreign loan at the request of the successor of the borrower to
repay the foreign loan and/or the account service provider of such successor so
that the parties have a basis to continue to arrange the loan in compliance
with the law on foreign borrowing and debt repayment.
Article 7.
Principles for making and sending applications
1. The
borrower sends 01 set of application to carry out administrative procedures as
prescribed in this Circular in either of the following methods:
a) Submit it to the Single-window
department of the State Bank in person;
b) Submit it by post.
2. Documents
in the application are originals or certified copies with the borrower's
certification of copying from the originals.
3. Vietnamese
translations of foreign-language documents are translations made by the
borrower itself or through a translation service provider. The borrower shall
confirm the accuracy of the Vietnamese translation with the foreign language
content.
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Chapter II
MANAGEMENT AND USE OF WEBSITE
Article 8.
Website
1. The State
Bank shall manage data and information about enterprises’ foreign borrowing and
repayment of foreign debts which are not guaranteed by the Government via its
website address www.sbv.gov.vn or www.qlnh-sbv.cic.org.vn.
2. Use of
websites for declaring information for registration and registration for
changes of loans and preparing review reports on arrangement of conventional
loans shall be consistent with the provisions laid down in this Circular and
user instruction manuals available on these websites.
3. Borrowers
shall sign up for their accounts to access these websites under the provisions
of Article 10 hereof.
Article 9.
Actions to be taken against technical failures arising from use of websites
1. Where any
technical failure in websites arises through no fault of the borrower, the
borrower shall temporarily report on arrangement of the foreign loans in
writing. After successfully dealing with such failure, the State Bank branch
shall update the report of the borrower into the website based on the written
report.
2. Where any
technical failure results from fault on the part of the borrower, he shall
assume the following responsibilities:
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b) Temporarily make reports on
arrangement of conventional foreign loans using the written form No. 05 issued
herewith, and concurrently notify the State Bank (Department of Foreign
Exchange Management) of this technical failure;
c) Post updated reports on
arrangement of conventional foreign loans on websites promptly after such
failure is successfully corrected.
Article 10.
Log-in account
1. Log-in
account refers to name and password entered to access websites which are given
to users, including the following information:
a) The borrower;
b) Officers of Foreign Exchange
Administration and the State Bank branches of cities or provinces engaged in
administration of foreign borrowing and repayment of foreign loans which are
not guaranteed by the Government;
c) Affiliates of the State Bank
assigned authority to have access to facts and figures pertaining to foreign
borrowing and repayment of foreign loans which are not guaranteed by the
Government.
2. After being
granted log-in accounts, users shall log in their accounts to declare
information, prepare reports, manage and use information on websites.
3. Procedures
for registration and issuance of log-in accounts for the borrowers:
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b) Users send the declaration forms
referred to in subparagraph a of this clause by post or directly submit these
forms to the State Bank branches as provided for in subparagraph a clause 5 of
this Article;
c) Within a maximum duration of 03
(three) working days of receipt of the request for issuance of user’s log-in
accounts along with valid and adequate information, competent authorities
defined in subparagraph a clause 5 of this Article shall consider approving and
granting log-in accounts sent to the registered email address of users. If such
request for issuance of log-in accounts is rejected, an online response
including clear explanation for this rejection must be sent to applicants.
4. Procedures
for registration of changes of information about log-in accounts shall be
stipulated as follows:
a) Borrowers must register changes
to information about log-in accounts if there is any change made to name of the
borrower, type of the borrower’s enterprise, address, tax codes, contact phone
number and email address;
b) Processes for such registration
include the following steps:
Borrowers fill their information in
online declaration forms to apply for changes made to log-in accounts according
to instructions available on websites;
Within a maximum duration of 03
(three) working days of receipt of the request for registration for changes of
log-in accounts, competent authorities provided for in point a clause 5 of this
Article shall approve change contents and notify users of this to their
registered email address. If such request is rejected, an online response
including clear explanation for this rejection must be sent to applicants.
5. Authority
to issue and manage log-in accounts:
a) The State Bank branches of
provinces where borrowers' head offices are located shall issue and manage
log-in accounts to the borrowers in the provinces.
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Chapter III
PROCEDURES FOR REGISTRATION AND REGISTRATION FOR
CHANGES TO CONVENTIONAL FOREIGN LOANS
Section 1.
LOAN REGISTRATION
Article 11.
Loans subject to registration
Loans subject to registration with
the State Bank include:
1. Medium-term
and long-term foreign loans.
2. Short-term
loans whose principal repayment period is renewed which have more than 01 (one)
year of maturity term.
3. Short-term
loans which are not covered by any loan renewal contract but remain the
outstanding principal owed (including outstanding interest included in
principal) on the anniversary of the date of first withdrawal of loan proceeds
in a full 01 (one) calendar year, except to the extent that borrowers have
already paid their principal debt within a permitted duration of 30 (ten) days
after the anniversary of the date of first withdrawal of loan proceeds in a
full 01 (one) year.
Article 12.
Loan term as the basis for determination of registration obligations
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2. In respect
of loans referred to in clause 2 Article 11 hereof, loan term shall be
determined from the date of first withdrawal of loan proceeds to the scheduled
date of final principal repayment under terms and conditions of foreign loan
and foreign loan renewal agreements.
3. In respect
of loans referred to in clause 3 Article 11 hereof, loan term shall be
determined from the date of first withdrawal of loan proceeds to the scheduled
date of final principal repayment.
4. The date of
withdrawal of loan proceeds defined in this Article is
a) The date on which the loan
proceed is credited to the borrower's account for loans disbursed in cash;
b) The date on which the creditor
makes payment to the non-resident for provision of goods or services under
goods or services sale contracts with the resident being the borrower;
c) The date on which the borrower
is recorded as fulfilling the payment obligation to the creditor in case the
parties choose to withdraw proceeds from the medium and long-term foreign loan
in the form of clearing as prescribed in point d, Clause 1, Article 34 of this
Circular.
d) The date on which the borrower
receives the leased asset for loans in the form of foreign financial lease in
accordance with relevant laws;
dd) The date on which the borrower
is granted the Certificate of Business Registration, the License for
establishment and operation under special laws, the date of signing the public-private
partnership (PPP) investment contract, the date on which the parties sign the
foreign loan agreement to convert the investment preparation amount into loans
(whichever is later), applicable to foreign loans arising from the transfer of
the investment preparation amount of the projects that have been granted an
investment registration certificate into foreign loans in accordance with the
law on foreign exchange management for foreign direct investment activities in
Vietnam.
Article 13.
Foreign loan agreement as the basis for loan registration
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2. Borrowers
shall not be subject to procedures for loan registration when signing
agreements which effect no withdrawal of loan proceeds with non-residents such
as framework credit pacts, memoranda and other similar arrangements. Contents
of agreements must ensure consistency with Vietnam laws and regulations.
3. Where
conventional medium-term or long-term loans of borrowers arise due to the
presence of written documents that effect the validity for withdrawal of loan
proceeds of the agreements prescribed in clause 2 of this Article, borrowers
shall apply for registration of their loans in accordance with this Circular.
In such circumstance, the foreign loan agreement shall include the original
agreement and the document which effects the validity for withdrawal of loan
proceeds of such agreement.
Article 14.
Entities subject to application for registration or registration for changes of
loans
Borrowers subject to application
for registration or registration for changes of loans include:
1. Borrowers
who are parties to foreign borrowing agreements with non-resident creditors.
2. Entities
liable for making repayment to the trustor in case the credit institutions,
foreign bank branches sign an agreement for on-lending with non-resident
trustors.
3. Parties who
are obliged to repay debts according to debt instruments issued outside the
Vietnamese territory to non-residents.
4. Lessees who
are parties to finance lease contracts with non-resident lessors.
5. The
successor of foreign loan repayment obligation shall make registration or
registration for change in accordance with this Circular in case the borrower
is fully or partly divided, consolidated or acquired while arranging the
foreign loan.
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1. Preparing
the registration form for foreign loans which are not guaranteed by the
Government:
a) If a borrower fills in the loan
declaration form on the website before submitting the application for registration
of the foreign loan: the borrower shall print out that form from the website,
and give their signature and stamp;
b) If a borrower fails to fill in
the loan declaration form on the website before submitting the application for
registration of the foreign loan: the borrower shall complete the application
form for registration of foreign loan given in Appendix 01 hereto.
2. Time limit
for submission of application:
Borrowers are required to send 01
application for registration of foreign loan to the competent authority
accorded authority over loan registration confirmation as prescribed in Article
20 of this Circular within the given time limit:
a) 30 working days from the date of
signing the medium or long-term foreign loan agreement;
b) 30 working days from the date of
signing the agreement to renew the foreign loan agreement from short-term to
medium- or long-term for the loans specified in clause 2 Article 11 of this
Circular in which the signing date of extension is within 01 year from the date
of first withdrawal of loan proceeds.
c) 30 working
days from the date on which the borrower is granted the Certificate of Business
Registration, the License for establishment and operation under special laws,
the date of signing the public-private partnership (PPP) investment contract,
the date on which the parties sign the foreign loan agreement to convert the
investment preparation amount into loans (whichever is later), applicable to
foreign loans arising from the transfer of the investment preparation amount of
the projects that have been granted an investment registration certificate into
foreign loans.
d) 60 working days after the
anniversary of the date of first withdrawal of loan proceeds in a full 01 (one)
year:
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3. The State
Bank shall send approval or rejection of confirmation of loan registration
(with clear explanation) within the following permitted periods:
a) 12 (twelve) working days of
receipt of valid and sufficient dossiers from borrowers in the event that
borrowers filled in the loan declaration form on the website;
b) 15 (twelve) working days of
receipt of valid and sufficient dossiers from borrowers in the event that
borrowers failed to fill in the loan declaration form on the website;
c) 45 working days of receipt of
valid and sufficient dossiers from borrowers in the event that loans
denominated in Vietnam dong are subject to consideration and consent of the
Governor of the State Bank in accordance with clause 3 Article 20 hereof.
4. Competent
authorities accorded authority over confirmation of registration, registration
for change of foreign loans referred to in Article 20 hereof shall assume the
following responsibilities:
a) Check consistency and accuracy
of dossiers submitted to apply for loans and information declared on websites;
keep borrowers updated on the processing status of registration application on
websites if they filled in loan declaration form on the website before
submission of application for registration of the foreign loan;
b) Input information regarding
loans on websites to create loan codes and store information in the database of
enterprises’ foreign loans or repayment of foreign loans which are not
guaranteed by the Government in the event that borrowers failed to fill in loan
declaration form on the website before submission of application for registration
of the foreign loan; update the dossier processing on the website in order for
the borrowers to check up.
5. In respect
of loans denominated in Vietnam dong, they shall be subject to consent from the
Governor of the State Bank in accordance with prevailing laws and regulations
on conditions for foreign borrowing, and procedures for loan registration cum
procedures for requesting the Governor of the State Bank to consider approving
loans; written confirmation of registration of loans cum written approval of
loans issued by the Governor of the State Bank.
Article 16.
Loan registration dossier
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2. Copy of
legitimate dossiers of the borrower: establishment permit, business registration
certificate, cooperative or cooperative federation registration certificate and
amending documents (if any) and other equivalent documents.
3. Copy or
original of written proof of borrowing purposes, including:
a) As for loans for executing
investment projects: Investment certificates, certificates of investment
registration or decisions on approval for investment policy as per the
investment law and applicable regulations of relevant laws;
b) As for loans for implementing
plans for production and business other than investment projects: Plan for use
of foreign loans approved by the competent authority as per the Investment Law,
Enterprise Law and charter of enterprises, Cooperative Law and charter of
cooperatives as well as other relevant legislative documents;
c) As for loans for restructuring
foreign loans of the borrower: Foreign debt restructuring plans of the borrower
approved by competent authorities in accordance with the Enterprise Law and
charter of enterprises, Cooperative Law and charter of cooperatives as well as
other relevant legislative documents;
d) As for loans stipulated in
clauses 2 and 3 Article 11 hereof: Report stating that use of short-term loans
conforms to regulations on eligibility conditions for short-term foreign
borrowing (enclosed with supporting documentation such as plan for use of
foreign loan of the borrower, plan for restructuring of foreign loan);
dd) Types of documents prescribed
in Points a, b and c of this Clause shall not apply to the loans of
state-funded commercial banks in which the State Bank is a controlling owner
representative and have been approved by the State Bank in accordance with
regulations on management and use of state funds in enterprises.
4. Copy of
foreign document and Vietnamese translation of foreign loan agreements and
agreements on renewal of short-term loans into medium-term or long-term loans
(if any).
5. Copy of
foreign document and Vietnamese translation of written guarantee commitment
(letter of guarantee, contract of guarantee or other commitments) in terms of
secured loans.
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7. Report on
compliance with regulations of the State Bank on credit limits and safety
ratios of credit institutions, foreign bank branches in accordance with
regulations on requirements for conventional foreign loans on the latest
3-month-end date prior to the signing date of loan agreement until the latest
month-end date prior to the date of submission of full application for
registration of foreign loan using the form No. 02 issued herewith and written
proof of incompliance with laws on credit limits and safety ratios approved by
the Prime Minister or the Governor of the State Bank in accordance with laws
(if applicable) in the event that borrowers are credit institutions or foreign
bank branches.
8. An account
service provider’s confirmation required as to the withdrawal of loan proceeds,
repayment of principal and interest until the date of loan registration (if the
borrower opens a foreign loan account at the account service provider) in the
following cases:
a) If foreign borrowing is to serve
the purpose of restructuring foreign debts: a statement given by the borrower’s
account service provider on withdrawal of loan proceeds and repayment of debts
incurred from foreign loans to be restructured by other foreign loans is
required;
b) If foreign investors’ disbursed
fund transmitted to Vietnam which have already been used for meeting
pre-investment expenses are converted into medium-term or long-term foreign
loans of directly foreign-invested enterprises in accordance with prevailing
relevant laws on foreign direct investment in Vietnam: Copy of foreign document
and Vietnamese translation of a confirmation of collection and spending
transactions relating to loan origination given by the creditor’s account
service provider is required;
c) As for loans stipulated in
clauses 2 and 3 Article 11 hereof: a statement given by the borrower’s account
service provider on withdrawal of loan proceeds and repayment of an initial
short-term foreign loan is required;
d) Where the borrower fails to
provide such a confirmation made by the account service provider as specified
in points a, b, c hereof since:
The account service provider
shuttered business or suspended operations before the borrower alters another
account service provider, or;
The withdrawal of loan proceeds and
repayment of the foreign loan are not required to be done via a foreign loan
account as per Article 34 hereof;
The borrower chooses one of the
other documents proving the withdrawal of loan proceeds and loan repayment as
follows: a copy of the audited or reviewed financial statement with information
proving that the borrower has received the loan amount, outstanding debt up to
the time of requesting the State Bank to confirm registration of foreign loan;
copy of foreign document and Vietnamese translation of the written
certification of the overseas commercial bank where the borrower opens and uses
a foreign currency account abroad to withdraw loan proceeds and repay the loan;
copy of foreign document and Vietnamese translation of the letter of
confirmation from an overseas bank about the amount of money the creditor has
directly paid to the beneficiary being a non-resident for the provision of
goods and services under the goods and services sale contract with the resident
being the borrower.
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10. Explanatory
statement on demands for foreign borrowing in Vietnam dong in respect of
foreign borrowing in Vietnam dong under the Governor’s approval in accordance
with the State Bank’s prevailing regulations on conditions for foreign
borrowing in Vietnam dong.
Section 2.
REGISTRATION FOR CHANGES OF FOREIGN LOANS
Article 17.
Application for registration for changes of foreign loan
1. Unless
otherwise provided for by clause 2 of this Article, if there is any change to
contents relating to loans referred to in the confirmation of foreign loan
registration or confirmation of registration for changes of foreign loan given
by the State Bank, the borrower shall be responsible for making registration
for changes of his foreign loan with the State Bank under the provisions of
this Circular.
2. The
borrower shall notify the change on the website and shall not apply for
registration of changes of loans in respect of the following contents:
a) Change of time for withdrawal of
loan proceeds, repayment of principal within 10 working days as against the
once previously approved by the State Bank;
b) Change of the borrower's address
without change of the city or province where the borrower’s head office is
located; the borrower shall send a notice of address change to the competent
authority accorded authority over registration, registration for change of
foreign loan;
c) Change of the creditor, related
information about creditors in respect of a syndicated loan that designate the
representative for creditors, except when a creditor is also the representative
for creditors in respect of a syndicated loan, and any change of creditors that
may entail changes to the roles of the representative for creditors;
d) Change of the commercial
transaction name of the account service provider, the bank providing secured
transactions;
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e) Change (increase or decrease)
the amount of loan proceeds to be withdrawn, repayment of principal, interests
and fees within 100 currency units of the foreign loan currency as against the
amount stated in the written confirmation of registration, written confirmation
of registration for change of foreign loan;
g) Change of the actual amount of
loan proceeds to be withdrawn or principal repayment of a specific period less
than the amount stated in the loan proceed withdrawal or debt repayment plan in
the written confirmation of registration or written confirmation of
registration for change of the foreign loan.
3. As for the
change specified in point g clause 2 of this Article, before withdrawing the
loan proceeds or repaying the outstanding debt of a period, the borrower shall
register the change of the loan proceed withdrawal and debt repayment as to the
outstanding amount as prescribed in this Circular.
Article 18.
Processes for registration for changes of loans
1. Preparing
the application for registration for changes of foreign loans:
a) If a borrower filled in the loan
change declaration form on the website before submitting the application: then
the borrower prints out that form from the website, and give their signature
and stamp;
b) If a borrower failed to fill in
the loan change declaration form on the website before submitting the
application: the borrower shall complete the application form for registration
for change of foreign loan given in Appendix 04 hereto.
2. Time limit
for sending an application for registration for change of foreign loan:
Within 30 working days from the
date on which:
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b) The successor of obligation to
repay the foreign loan is issued with a business registration certificate or
the date on which the parties to sign an agreement on change of the borrower in
a case where the former borrower is fully or partly divided, consolidated or
acquired (whichever comes later) and before the withdrawal of loan proceeds and
loan repayment continues;
c) The borrower completes the
update of information on name change and/or address change, moving the head
office to another province or city on the National Business Registration
Database;
d) The creditor (or the
organization representing the creditors in the syndicated loan - if any), the
grantor (of security interest), the guarantor or other related parties
mentioned in the written confirmation of registration, the written confirmation
of the loan change registration sends a written notice to the borrower of the
name change and before making related money transfers to these parties.
3. The State
Bank shall send approval or rejection of confirmation of registration for
changes of loan (with clear explanation) within the following permitted
periods:
a) 12 (twelve) working days of
receipt of valid and sufficient application from the borrower in the event that
borrower filled in the loan change declaration form on the website before
submitting the application, or;
b) 15 (twelve) working days of
receipt of valid and sufficient application from the borrower in the event that
borrower failed to fill in the loan change declaration form on the website
before submitting the application.
4. Competent
authorities referred to in Article 20 hereof shall assume the following
responsibilities:
a) Check consistency and accuracy
of application for registration for change of the loan and information declared
on websites; keep borrowers updated on the processing status of registration
application on websites if they filled in loan declaration form on the website
before submission of application for registration for change of the foreign
loan;
b) Input information regarding
loans on websites to create loan codes and store information in the database of
enterprise’s foreign loan or repayment of foreign loan which is not guaranteed
by the Government in the event that the borrower failed to fill in loan change
declaration form on the website before submission of application for
registration for change of the foreign loan; update the application processing
on the website in order for the borrower to check up.
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1. The
registration form for changes to loans stipulated in clause 1 Article 18
hereof.
2. Copies and
Vietnamese translations of agreements on changes to loans which have been
registered.
3. Copies of
documents of competent authorities in accordance with laws on task and
authority assignment in relation to implementation of authority,
responsibilities and obligations of the state in state-owned enterprises and
state-owned capital invested in enterprises on approval of changes of the
foreign loan plan of the borrower who is a state-owned enterprise in case of
increasing the loan proceeds or extending the loan term (not applicable to
loans of commercial banks in which the State Bank is a controlling owner
representative and have been approved by the State Bank in accordance with
regulations on management and use of state funds in enterprises).
4. Required
documents in the application as specified in clause 3 Article 16 of this
Circular in case of increasing the loan proceeds, changing the loan use purpose
as to the unrealized loan amount.
5. Required
documents in the application stipulated by clause 7 Article 16 hereof in the
event that the borrower that is a credit institution, foreign bank branch increases
foreign loan proceeds.
6. Document
issued by the account service provider regarding confirmation of withdrawal of
loan proceeds and debt (principal and interest) repayment till the date of
registration for changes of loans in the event of registration for changes of
the loan proceeds, or the plan for withdrawal of loan proceeds or debt
repayment, or the date on which the commercial bank provides account services.
In case the borrower cannot provide
the confirmation of the account service provider according to the provisions of
this clause because the account service provider has shuttered business or has
suspended operations before the borrower changes another account service
provider and/or the withdrawal of loan proceeds and repayment of foreign loans
in the cases of withdrawal of loan proceeds and debt repayment which are not
made through a foreign loan account as prescribed in Article 2 of this this
Circular, the borrower may choose to provide other documents as specified at
Point d, Clause 8, Article 16 of this Circular.
Section 3.
CONFIRMATION OF REGISTRATION OR REGISTRATION FOR CHANGES
OF LOANS
Article 20.
Authority over confirmation of registration or registration for changes of
loans
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a) The State Bank (Department of
Foreign Exchange Management): in respect of loan proceeds of more than USD (or
other equivalents) 10 (ten) million;
b) State Bank branches of provinces
where borrowers’ head offices are located: in respect of loan proceeds of up to
USD (or other equivalents) 10 (ten) million other foreign loans denominated in
Vietnam dong subject to approval by the Governor of the State Bank.
2. Where there
is any increase or reduction in loan proceeds, or any change to currency unit
of a loan or the borrower's head office, or the borrower is requested to
contact an enterprise whose head office is located within another province or
city, which entails changes to the authority in charge of confirmation of
registration for changes of loans:
a) The borrower shall submit the
application for registration for change of the foreign loan to the authority in
charge of confirmation of registration or registration for changes of the
latest time.
b) The authority in charge of
confirmation of registration or registration for changes of the latest time
shall act as the contact point to receive the application for registration for
changes of the loan from the borrower. Within 07 (seven) working days of
receipt of the application for registration for changes, the authority in
charge of confirmation of registration or registration for changes of the
latest time shall deliver all of the original application submitted to request
registration of changes of loans and copy of application for registration or
registration for changes that have already been made to loans (if any) to
competent authorities referred to in clause 1 of this Article for further processing
activities.
3. Where
foreign loans denominated in Vietnam dong are subject to the Governor’s
consideration or approval, the Department of Foreign Exchange Management shall
act as the contact point or cooperate with relevant affiliates of the State Bank
in reporting to the Governor for his consideration or decision according to the
delegated authority.
4. The
exchange rate used to determine the competent authority in charge of
confirmation of the registration and registration for changes in foreign loans
is the accounting rate quoted by the Ministry of Finance and applied at the
time of signing foreign loan agreements or agreements on changes of the foreign
loans in relation to the loan proceeds.
Article 21.
Bases for confirmation of registration or registration for changes of loans
1. The foreign
loan proceeds are within the total limit on conventional foreign commercial
loans approved by the Prime Minister.
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Article 22.
Cancellation of the written confirmation of registration or registration for
changes of loans
The competent authority in charge
of registration, registration for change of foreign loans shall issue a written
cancellation of the confirmation of registration, registration for change of
foreign loan in case the application for registration, registration for change
of foreign loan contains fraudulent information, forged documents supporting
the eligible for registration, registration for change of foreign loan.
Article 23.
Cases in which the written confirmation of registration or registration for
changes of loans will become automatically void and null
1. The written
confirmation of registration or registration for changes of foreign loan issued
by the State Bank shall become automatically void and null in the event that,
in excess of the period of 06 (six) months after the last date of the
withdrawal term, and though the State Bank has given its confirmation, the
borrower fails to withdraw the loan proceeds and register changes to the plan
for loan proceed withdrawal in accordance with relevant regulations set forth
in this Circular.
2. After the
written confirmation of registration or registration for changes of foreign
loans becomes void and null under the provisions laid down in paragraph 1 of
this Article, if the borrower wishes to proceed with such loans, he must repeat
procedures for registration for foreign loans as stipulated by Chapter III
hereof within a maximum period of 30 (thirty) days from the date on which
parties reach arrangements in writing to proceed to effect such loans.
Article 24.
Actions to be taken against foreign loans in case of cancellation of the
confirmation of registration, registration for changes of foreign loans due to
fraudulent information, forged documents in applications
1. Where an
application for registration or registration for changes of foreign loan
contains fraudulent information, forged documents supporting the eligible for
registration, registration for change of foreign loan, the competent authority
shall issue a written cancellation of the confirmation of registration,
registration for change of foreign loan to the borrower (and to the account
service provider, bank providing secured transactions - if any).
2. After
receiving the written cancellation of the written confirmation of registration,
confirmation of registration for change of foreign loan mentioned in Clause 1
of this Article, the account service provider, the bank providing secured
transactions shall not continue to conduct money transfers related to the
foreign loan according to the contents stated in the written confirmation of
registration, confirmation of registration for change of foreign loan. The
account service provider, the bank providing secured transactions shall notify
the competent authority in writing of the money transfer transactions related
to the foreign loan made through these banks until the date of the written
notice of cancellation of the written confirmation of registration or
registration changes at the request of the competent authority.
3. From the
time when the written confirmation of registration or registration of changes
is cancelled, the borrower uses a checking account denominated in Vietnam dong
opened at an account service provider to refund outstanding foreign loan
proceeds and indebtedness amount (if any).
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Article 25.
Duplication and sending of the written confirmation of registration or
registration for changes of loans, and the statement on cancellation of the
written confirmation thereof
1. The State
Bank (Department of Foreign Exchange Management and State Bank branches) shall
duplicate and send the following documents to account service providers, banks
providing secured transactions to request their cooperation in monitoring and
implementing:
a) The written confirmation of
registration or registration for changes of loans;
b) The statement on cancellation of
the written confirmation of registration or registration for changes of loans.
2. The State
Bank (Department of Foreign Exchange Management) shall duplicate and send the
documents referred to clause 1 of this Article to the State Bank branches of
provinces where the borrower’s head offices are located in order to cooperate
in management, monitoring and expedition of preparation of reports.
3. The State
Bank branches of provinces shall duplicate and send the statement on
cancellation of the written confirmation of registration or registration for
changes of loans to the State Bank (Department of Foreign Exchange Management)
for the purpose of cooperation in administrative activities.
Chapter IV
OPENING AND USE OF FOREIGN LOAN ACCOUNTS
Section 1.
FOREIGN LOAN ACCOUNTS
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1. Foreign
loan account refers to the payment account that the borrower opens at an
account service provider to withdraw loan proceeds and repay debts incurred
from the foreign loan and other money transfer activities relating to foreign
borrowing and debt repayment and foreign loan guarantee.
2. Regarding borrowers that are
foreign-invested enterprises:
a) As for medium-term and long-term
foreign loans (excluding the loans specified in point c of this clause):
The borrowers shall utilize the
account for direct investment for other receipts and spending related to
foreign direct investments as stated in Article 28 and Article 29 of this Circular.
If the loan currency is not the currency of the account for direct investment,
the borrower may open another foreign loan account to take out a foreign loan
at the bank where it opened the account for direct investment.
Borrowers can utilize 01 (one)
account for 01 (one) or various foreign loans. Permissible receipts and
expenditures of these accounts shall be stipulated by Article 28 and 29 hereof;
b) Short-term foreign loans:
Borrowers can utilize the account for direct investment as stated in Point a of
this Section or another foreign loan account (as distinct from the account for
direct investment) to process receipts and expenditures related to the foreign
loan. Each short-term foreign loan shall only be processed through 01 (one)
account service provider. Borrowers can utilize 01 (one) account for 01 (one)
or various short-term foreign loans. Permissible receipts and expenditures of
these accounts shall be stipulated by Article 28 and 29 hereof;
c) For short-term loans with
outstanding principal at the anniversary date of full 1 year from the date of
withdrawal of loan proceeds and the borrower will make repayment within 30
working days from the anniversary date of full 1 year from the date of
withdrawal of loan proceeds, the borrower shall repay the loan via the foreign
loan account, which is being used for this loan;
d) In case a foreign-invested
enterprise is an organization jointly liable for the debt repayment obligation
of the original borrower after the full division, partial division, consolidation
or acquisition, such foreign-invested enterprise is not required to use the
account for direct investment to repay the debt for which this enterprise is
jointly liable.
3. The
borrower that is not a directly foreign-invested enterprise must open a foreign
loan account at an account service provider in order to perform money transfer
transactions relating to foreign loans (including fund withdrawal, principal
and interest payment). Each foreign loan shall only be processed through 01
(one) account service provider. Borrowers can utilize 01 (one) account for 01
(one) or various foreign loans. Permissible receipts and expenditures of these
accounts shall be stipulated by Article 28 and 29 hereof.
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1. Commercial
bank or foreign bank branch that is the borrower is not required to open a
foreign loan account at a credit institution or foreign bank branch to arrange
a foreign loan.
2. Commercial
bank or foreign bank branch that is the borrower shall be responsible for
monitoring transactions relating to its foreign borrowing in accordance with
prevailing laws and regulations on account-recording and accounting in terms of
commercial banks and foreign bank branches; take responsibility and ensure
performance of transactions relating to foreign loans in compliance with
contents of the State Bank’s written confirmation of registration or
registration for changes of foreign loans of that commercial bank or foreign
bank branch.
Article 28.
Permissible receipts and expenditures of foreign loan accounts denominated in
foreign currencies
Foreign loan accounts denominated
in foreign currencies shall only be used for performing transactions relating
to foreign borrowing and foreign debt repayment activities as follows:
1. Receipts
from:
a) Withdrawing foreign loan
proceeds;
b) Purchasing foreign currency from
account service providers for the purpose of repaying debts (principal and
interest) incurred from foreign loans or indebtedness amounts between the
creditor and the grantor (of security interest) being a non-resident, or
payment of fees in accordance with loan agreements;
c) Converting foreign currency from
foreign loan proceed withdrawals in the event that the creditor's disbursements
are not denominated in the currency unit used in the foreign loan account;
d) Foreign-currency payment account
that the borrower opens at a credit institution licensed within the territory
of Vietnam, and foreign currency account that the borrower opens abroad;
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e) Interests earned on account
balances as per applicable laws.
2. Expenditures
on:
a) transferring money to repay
debts (principal and interest) incurred from foreign loans;
b) transferring money abroad to pay
fees under loan agreements, pay compulsory debt owed to the non-resident
grantor under the provisions of Chapter V hereof;
c) transferring money to the
borrower’s foreign-currency payment accounts;
d) selling foreign currency to
authorized credit institutions;
dd) transferring money to the
foreign currency account that the borrower opens abroad to secure commitments
stated in foreign loan agreements;
g) Buying foreign currency to pay
debts (principal, interest) incurred from foreign loans in the event that
currency used for debt repayment is not the one used in the foreign loan
account;
g) Service charges for account
management and money transfer through accounts as stipulated by the account
service provider;
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Article 29.
Permissible receipts and expenditures of foreign loan accounts denominated in
Vietnam dong
Foreign loan accounts denominated
in Vietnam dong shall only be used for performing transactions relating to
foreign loans denominated in Vietnam dong as follows:
1. Receipts
from:
a) transferring foreign loan
proceed withdrawals in the event that the creditor uses Vietnam-dong payment
accounts opened at credit institutions, foreign bank branches located within
the territory of Vietnam;
b) withdrawing loan proceeds from
sale of foreign currency to authorized credit institutions located within the
territory of Vietnam in case the creditor does not use Vietnam-dong payment
accounts opened within the territory of Vietnam for loan disbursement purposes;
c) transferring money from
Vietnam-dong payment accounts of the borrower;
d) Interests earned on account
balances as per applicable laws.
2. Expenditures
on:
a) transferring money to
Vietnam-dong payment accounts of the borrower to pay debts (principal,
interest) in the event that the borrower uses Vietnam-dong payment accounts for
the purpose of recovering debts agreed upon in loan agreements;
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c) paying indebtedness amount
between the borrower and the grantor under the provisions of Chapter V hereof;
d) paying fees denominated in
Vietnam dong, and buying foreign currency to pay fees denominated in foreign
currency in relation to foreign loans;
dd) transferring money to
Vietnam-dong payment accounts of the borrower;
e) Service charges for account
management and money transfer through accounts as stipulated by the account
service provider.
Article 30.
The creditor's foreign loan account opened at a credit institution or foreign
bank branch in Vietnam.
1. The
creditor opens and uses a Vietnamese dong payment account of a non-resident at
a credit institution or foreign bank branch in Vietnam for the following
purposes:
a) Disbursement and debt recovery
of foreign loans in Vietnam dong in case the borrower that is a
foreign-invested enterprise takes a loan from profits from direct investment
activities in the Vietnamese territory of the creditor being a foreign investor
that contributes capital to the borrower;
b) Recovering debts of loans
subject to registration as prescribed in Clauses 2 and 3, Article 11 of this
Circular but ineligible for registration confirmation;
c) Recovering outstanding debts of
foreign loans but the confirmation of registration, registration for changes of
foreign loans is cancelled due to fraudulent information, forged documents in
the application in accordance with this Circular.
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a) Receipt from the creditor’s
profits distributed from direct investment activities in the territory of
Vietnam
b) Expenditure on buying foreign
currency to transfer to overseas creditor's account;
c) Expenditure on transfer to
another checking account in Vietnam dong opened by the creditor at a credit
institution or foreign bank branch in Vietnam;
d) Expenditure on service charges
for account management and money transfer through accounts as stipulated by the
account service provider.
3. The
creditor's use of foreign currency accounts of non-residents at commercial
banks for disbursement and debt recovery for foreign loans must comply with the
provisions of law on restrictions on the use of foreign exchange on the
territory of Vietnam.
4. In case of
opening and using an account in the Vietnamese territory, the creditor is
responsible for complying with the provisions of law on the opening and use of
accounts of non-residents at commercial banks in Vietnam to conduct receipt and
expenditure transactions related to foreign loans.
Section 2.
WITHDRAWAL OF LOAN PROCEEDS, MONEY TRANSFER FOR FOREIGN
LOAN ARRANGEMENT
Article 31.
Principle of cash flow transparency
1. If the
borrower is not a commercial bank or foreign bank branch, every money transfer
(loan proceed withdrawal or debt repayment) relating to foreign loans must be
performed through foreign loan accounts of the borrower, unless otherwise
stipulated in Article 34 hereof.
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3. The
borrower shall be responsible for clarifying and requesting the creditor to clarify
the purpose of money transfer transactions relating to foreign loans as the
basis for determining foreign debt obligations and transferring money to pay
debts incurred from loans (principal, interest) on the payment due date.
Article 32.
Money transfer for arrangement of foreign loans
1. Borrowers
shall transfer loan proceeds, repay debts (principal, interests) via 01 account
service provider.
a) Where the account service
provider is altered, the borrower shall request the current account service provider
to give confirmation of loan proceed withdrawal and debt repayment relating to
the foreign loan in order for the new account service provider to continue to
monitor arrangement of the foreign loan in accordance with prevailing laws on
administration of foreign borrowing and foreign debt repayment;
b) Where currency used is altered
but the account service providers is not altered, such provider shall be
responsible for overseeing loan proceed withdrawal and debt repayment in
accordance with prevailing laws on administration of foreign borrowing and
foreign debt repayment.
2. With
respect to foreign loans subject to registration with the State Bank, the
borrower shall be allowed to withdraw loan proceeds and repay debts (principal,
interest) of the foreign loan only after registration or registration for
change of such loan is confirmed by the State Bank, except for:
a) Withdrawal of loan proceeds and
partial repayment of principal and interest in the first year of the loan
subject to registration specified in Clauses 2 and 3, Article 11 of this
Circular. For short-term loans that are signed with an agreement to extend into
medium and long-term within 12 months from the date of first loan proceed
withdrawal, from the date of signing the extension agreement, the withdrawal of
loan proceeds and repayment (principal, interest) can only be continued after
the loan registration if confirmed by the State Bank. The borrower is
responsible for notifying the account service provider that the short-term loan
has been extended into a medium- and long-term loan under an agreement;
b) Withdrawal of loan proceeds
arising from a foreign loan agreement to convert the amount of money made for
investment preparation into foreign loan.
3. The
borrower shall only be allowed to receive disbursement amount and transfer
money to pay debts (principal, interest) through the account of the creditor,
representative for the creditor or payment bank agent of the creditor in the
event of a syndicated loan or loan which a bank acts as a payment agent under
the loan agreement.
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5. The
borrower pays the debt to the creditor's checking account in Vietnam dong
opened at a credit institution or foreign bank branch in Vietnam in the
following cases:
a) Loans subject to registration as
prescribed in Clauses 2 and 3, Article 11 of this Circular but ineligible for
registration confirmation. The exchange rate applied to determine the amount
denominated in Vietnam dong payable to the creditor as specified in this point
is the accounting rate announced by the Ministry of Finance, or the foreign
currency buying and selling rate set by the account service provider or other
credit institution or foreign bank branch listed in Vietnam at the time the
competent authority issues a written refusal to confirm the registration of the
foreign loan or the time of transferring money for debt repayment;
b) The foreign loan has outstanding
balance but the written confirmation of registration, the written confirmation
of registration of changes is cancelled due to fraudulent information or forged
documents in the application. The exchange rate applied to determine the amount
in Vietnam dong to be paid to the creditor according to the provisions of
Clause 4, Article 24 of this Circular.
c) Foreign loans in Vietnam dong
from profits from direct investment activities in the Vietnamese territory of
the creditor being a foreign investor that contributes capital to the borrower.
Article 33.
Purchase of foreign currency and transfer of money for foreign debt repayment
1. The
borrower shall purchase foreign currency from authorized credit institutions to
pay discharge obligations relevant to repayment of principal and interest and
fee relating to foreign loans on the basis of presenting documents or records
indicating demands of legitimate foreign currency payment in accordance with
laws and upon the request of authorized credit institution.
2. Authorized
credit institutions shall set out regulations on records and documents
indicating the demands for legal payment of foreign currency on the principle
of verification of legal debt obligations of the borrower under foreign loan
agreements, proof of loan proceed withdrawal and statement on confirmation of
registration for foreign loans issued by the State Bank (applicable to the case
in which foreign loans must be registered with the State Bank) and other
documentation (if any) upon the request of authorized credit institution.
Article 34.
Cases in which withdrawal of loan proceeds or debt repayment is not carried out
through foreign loan accounts
1. Cases in
which withdrawal of loan proceeds is not carried out through foreign loan
accounts include:
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b) Withdrawing foreign loan
proceeds in the form of finance lease;
c) Withdrawing loan proceeds
through the account that the borrower opens abroad in case the borrower is
allowed to open accounts abroad for arrangement of foreign loans;
d) Withdrawing loan proceeds from medium-term,
long-term foreign loans through settling or clearing against direct payment
obligations to the creditor, including: payment obligation under the goods
import contract, obligation to repay foreign loan debt, the obligation to repay
the indebtedness amount under the provisions of this Circular directly to the
creditor;
dd) Withdrawing loan proceeds in
case the amount of money for investment preparation is converted into a foreign
loan as agreed between the parties in accordance with the law on foreign
exchange management for foreign direct investment activities into Vietnam.
2. Cases in
which debt repayment is not carried out through foreign borrowing and foreign
debt repayment accounts include:
a) Paying debts by means of
providing goods or services for the borrower;
b) Paying debts in the form that
the creditor and the borrower agree to convert the outstanding debt into shares
or contributed capital of the borrower;
c) Paying debts in the form that
the creditor and the borrower agree to swap the outstanding debt into shares or
contributed capital owned by the borrower;
d) Paying debts incurred from medium-term
or long-term loans through settling or clearing against direct receivables with
the borrower;
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3. Within 05
working days from the date of withdrawal of loan proceeds or debt repayment in
the cases specified in Clauses 1 and 2 of this Article, the borrower is
responsible for notifying and sending documents proving the withdrawal of loan
proceeds, debt repayment in the form of not using the foreign loan account so
that the account service provider knows and continues to monitor the borrower's
foreign loan.
Chapter V
REGULATIONS ON FOREIGN EXCHANGE ADMINISTRATION
REGARDING SECURITY OF CONVENTIONAL LOANS
Article 35.
Performance of guarantee obligations
1. As for
guaranteed foreign loans, the guarantor shall perform guarantee obligations to
the foreign creditor (the obligee) as requested under commitments of the loan
agreement, written guarantee commitments (letter of guarantee, guarantee
contract or other guarantee commitments) which have been reached between
parties involved, not contrary to applicable laws.
2. The
guarantor is a resident who transfers money to fulfill the guarantee
obligations through a bank providing secured transactions (except for the case
specified in Clause 3 of this Article).
3. In case the
guarantor is a credit institution or foreign bank branch in Vietnam, the
guarantee money transfer is not required to do through the bank providing
secured transactions. Credit institutions, foreign bank branches in Vietnam
that provide guarantees for foreign loans are responsible for complying with
the provisions of law on bank guarantees and notifying the account service
provider about the guarantee amount provided.
Article 36.
Performance of security obligations in the form of collateralized security
1. When a
collateralized security obligation arises for a foreign loan, the grantor shall
perform the security obligation in accordance with the commitments in the loan
agreement and the guarantee agreements which are not contrary to Vietnamese law
on secured transactions and other relevant laws.
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3. In case of
realization of collateral in the form that the secured party receives the
collateral itself to replace the performance of the obligation, the borrower is
responsible for notifying the account service provider of information about the
debt obligation that has been paid in the form that the secured party receives
the collateral itself to replace the performance of the obligation.
Article 37.
Bank providing secured transactions
1. Money
transfer for performance of security obligations (including money transfer for
performance of guarantee obligations and money transfer for performance of
collateralized security obligations) must be done through 01 bank providing
secured transactions, except for the cases specified in Clause 3, Article 36 of
this Circular.
2. In case the
bank providing secured transactions is also the bank providing account services
of foreign loans, this bank is responsible for checking and keeping relevant
documents in accordance with the provisions of this Circular when transferring money
to perform security obligations as prescribed in this Circular.
3. In case the
bank providing secured transactions is not a bank providing account services of
foreign loans, when transferring money to perform security obligations, the
bank shall have the following responsibilities:
a) Examine and keep documents and
transfer money on the basis of documents mentioned in Clause 4 of this Article;
b) Within 07 working days from the
date of money transfer to perform the security obligation, notify and send to
the account service provider the documents proving the debt amount (principal,
interest, fee) paid to the creditor through the performance of security
obligations for the account service provider to monitor, determine the
outstanding balance of principal, interest, and fees of the loan and serve as a
basis for the transfer of funds to repay the indebtedness amount between the
borrower and the grantor as prescribed in this Circular.
4. Documents
for the authorized bank providing secured transactions to transfer money to
perform the security obligation for the foreign loan, including:
a) Foreign loan agreement;
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c) A written request for
performance of security obligations from the creditor (or the creditor’s
representative or the creditor’s representative to realize the collateral)
according to the agreement of the parties to the guarantee; realization of
collateral, specifying the payment obligations that the borrower is unable to
perform the obligations under the loan agreement;
d) A written certification of the
borrower's account service provider on the withdrawal of loan proceeds and loan
repayment up to the time of request for money transfer to perform security
obligations;
dd) Written confirmation of
registration or registration for changes of foreign loans issued by the State
Bank, identifying the security interests for foreign loans (applicable to the
case in which foreign loans are subject to registration with the State Bank);
e) Other documents (if any) as
prescribed by the bank providing secured transactions.
5. The
borrower is responsible for notifying the grantor of the bank providing account
services, the bank providing secured transactions and fully declaring information
about these banks when registering and registering the change of foreign loan
(in case the loan is subject to foreign loan registration as prescribed in this
Circular).
Article 38.
Indebtedness amount between the borrower and the grantor
1. Indebtedness
amount (if any) between the borrower and the grantor is a debt that the
borrower is obliged to repay to the grantor after the grantor has performed the
security obligation under agreements between the borrower, the grantor, the
creditor in relation to the foreign loan (hereinafter referred to as the
“indebtedness amount”).
2. The maximum
indebtedness amount does not exceed an amount equivalent to the debt obligation
under the foreign loan agreement that has been done through the performance of
security interests.
3. In case the
borrower and the grantor being resident have an agreement on interest and fees
for the indebtedness amount, the agreement details on the interest and fees for
the indebtedness amount must be consistent with current regulations of the
Civil Code.
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5. Agreement
on currency used for indebtedness amount and currency used for payment for
indebtedness amounts within a territory must be consistent with regulations on
restrictions on use of foreign exchange in the territory of Vietnam.
Article 39.
Reimbursement of indebtedness amounts
1. The
borrower shall carry out reimbursement of indebtedness amounts to the grantor
on the basis of presenting the followings to the service account provider:
a) Foreign loan agreement and other
documents on security relating to foreign loans;
b) Agreement of parties on
reimbursement of indebtedness amount from the borrower to the grantor;
c) Documentation supporting that
the grantor has performed security obligations related to the foreign loan
(copies of money transfer document proving that the guarantor has acted on
behalf of the borrower to repay debts, document proving that the amount for
performance of security obligations has been transferred to the bank providing
security transactions, document proving that the collateral has been handed
over to perform the obligations);
d) Other document or records (if
any) according to regulations of the account service provider.
2. Reimbursement
of the indebtedness amount to the grantor must be carried out through foreign
loan accounts. In the event that the currency for payment of the indebtedness
amount is different with the currency of the foreign loan account, the borrower
may do the reimbursement via another account opened at the borrower’s account
service provider.
Chapter VI
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Article 40.
Statistical reporting regulations in respect of the account service provider
The account service provider shall
implement reporting regulations in accordance with provisions set forth by the
State Bank on statistical reporting regulations that apply to authorized credit
institutions or foreign bank branches.
Article 41.
Reporting regulations applied to the borrower
1. On the
monthly basis, no later than the 5th day of the month immediately after the
reporting period, the borrower must prepare an online review report on
short-term, medium-term and long-term loans on websites. Where any technical
failure in websites arises that makes the reporting unfeasible, the borrower
shall send a written report using the form in Appendix 05 hereto.
2. Within a
maximum period of 10 (ten) working days of receipt of online report from the
borrower on websites (or inputting information from the written report as the
websites have technical failure) for the purpose of storing information in the
database. Where reporting information is accurate, the borrower shall be
notified of completion of reporting by emails in accordance with regulations.
Where there is inaccurate information or any information that need to be
clarified, the State Bank branch shall send the notification email to the
borrower to make data adjustments.
3. Within 03
working days after identifying errors in a foreign loan and repayment report,
the borrower is responsible for reporting online at the websites (or in writing
in case the websites encounter technical failure) the performance of short,
medium and long-term loans with corrected data; and also notify the State
Bank's branch by email so that the State bank's branch can conduct scrutiny
according to the provisions of this Circular.
Article 42.
Ad-hoc reporting
In some unexpected events or
whenever necessary, the borrower or the account service provider shall send
reports upon the request of the State Bank.
Chapter VII
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Article 43.
Responsibilities of borrowers
1. Comply with
regulations on administration of foreign borrowing or foreign debt repayment in
this Circular and other relevant regulations when signing and performing
foreign loan agreements and agreements on security of foreign loans.
2. Present
documents or records in accordance with laws and upon the request of the
account service provider when determining that the form of the loan is either a
monetary loan or a financial lease and/or another form and when performing
money transfers related to foreign loans.
3. Implement
regulations on declaring information, making reports and maintaining
information security in accordance with provisions set forth in this Circular.
4. Take legal
responsibility for:
a) determining that the form of the
loan is either a monetary loan or a financial lease and/or another form. In
case a foreign loan is a loan in the form of a financial lease, the borrower is
responsible for determining the date of receipt of the leased asset and
providing information to the competent authority or the account service
provider upon request;
b) the accuracy and authenticity
of: the information provided and declared on the Website through their log-in
account; information or documents attached to applications for registration or
registration for changes of loans, reports sent to competent authorities;
information provided, documents presented to commercial banks when performing
money transfer transactions related to foreign loans.
Article 44.
Responsibilities of bank providing secured transactions
1. Provide money
transfer services to fulfill security obligations as prescribed in this
Circular.
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3. Provide
accurate information on the money transfer for performance of security
obligations at the request of the competent authority, the borrower, the
borrower's account service provider.
Article 45.
Responsibilities of account service provider
1. Provide
account services for foreign loan transactions (withdrawal of loan proceeds,
debt repayment, fee payment, money transfer relating to security of foreign
loans as prescribed in this Circular) on the basis of:
a) Statement on confirmation of
registration or registration for changes of foreign loans (applicable to the
case in which foreign loans are subject to registration or registration for
changes), documents relating to cancellation of statement on confirmation of
registration or registration for changes of foreign loans;
b) Loan agreements, agreements on
changes of loan agreements and other arrangements relevant to foreign loans;
c) Plan on using loans, investment
project using short-term foreign loan of short-term foreign loan (with the
borrower's commitment that this Plan has been approved by a competent authority
in accordance with the regulations on foreign borrowing and debt repayment
conditions), applicable to short-term foreign loans;
d) Documents proving that the
grantor has performed the security obligations related to the conventional loan
(money transfer document proving that the guarantor has acted on behalf of the
borrower to repay debts, document proving that the grantor or grantor’s
representative has transferred the amount of realization of collateral to the
borrower or the borrower’s representative or any other equivalent documents);
dd) Documents proving the
borrower's compliance with the online reporting regime on short-term foreign
loan and repayment as prescribed in this Circular (screenshot of the report on
the website, certified by the borrower);
e) Documents proving that the
borrower performs foreign currency risk prevention operations for the payment
period of foreign loan in accordance with current regulations on management of
foreign loan and repayment (if any);
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2. Inspect and
check the matching up between the money transfer requests (loan proceed
withdrawal, debt repayment) and documents presented by the borrower and
involved parties to ensure that money transfer transactions relating to foreign
loans must be consistent with the written confirmation of registration or
registration for changes (in the event of loans subject to registration), loan
agreement and other relevant arrangement; in accordance with regulations on
foreign exchange management.
3. Provide the
borrower’s accurate information about foreign loans (including amount and time
of loan proceed withdrawn or debt repaid; reference information about loan
agreements or borrower) in the written confirmation of how foreign loans are
effected which is issued by the borrower upon request of the borrower or the
competent authority.
Article 46.
Responsibilities of the Department of Foreign Exchange Management
1. Take charge
of establishing the model of administration of information about foreign
borrowing and foreign debt repayment through websites.
2. Implement
functions or duties in accordance with this Circular.
3. Make best
use of the database of foreign borrowing and foreign debt repayment which
assists the work of establishing and operating policies in consistency with its
functions and duties.
4. Take charge
of and cooperate with the National Credit Information Center of Vietnam in:
a) Creating user’s manuals, and
posting and updating information on websites in a regular manner;
b) Revising and improving contents
of websites in order to offer users advantages, and undertaking that the
database must assist administration of foreign borrowing and repayment of
foreign debts which are not guaranteed by the Government;
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d) Providing instructions on
registration and issuance of log-in accounts or any change to information about
these log-in accounts for entities referred to in subparagraph b and c
paragraph 1 Article 10 hereof.
Article 47.
Responsibilities of the National Credit Information Center of Vietnam
1. Maintain
safety and stability during operation of websites, and prevent unauthorized
access to websites and databases for administration of foreign borrowing and
foreign debt repayment.
2. Use
information on foreign loan and repayment of enterprises to build a national
credit information database, serving management requirements of the State Bank
and business and risk management activities of credit institutions, foreign
bank branches.
3. Cooperate
with the Department of Foreign Exchange Management in implementation of
provisions laid down in clause 4 Article 46 hereof.
Article 48.
Responsibilities of the State Bank branches
1. Implement
functions or duties under authority stipulated by this Circular.
2. Take
responsibility to guide, oversee, remind and encourage borrowers to declare
information declaration, and make reports in accordance with provisions laid
down in this Circular.
3. Make best
use of the database of foreign borrowing and foreign debt repayment within its
delegated authority which assists administration of foreign borrowing or
foreign debt repayment on its territory of operation in consistency with its
functions and duties.
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5. Inspect,
examine and impose penalties for administrative violations within its
jurisdiction in respect of cases of administrative violations in the course of
implementing provisions laid down in this Circular.
Article 49.
Responsibilities of Banking Inspection and Supervision Authority
1. Provide
opinions from supervision of the compliance with the law on prudential ratios
in banking operations by the borrower being a credit institution or foreign
bank branch (under the authority of Banking Inspection and Supervision
Authority to inspect and supervise micro-safety when receiving an advisory
opinion request from the competent authority). The scope of supervision
opinions includes opinions on individual indicators and consolidated indicators
of ratios and limits reported by credit institutions and foreign bank branches
in Appendix 02 appended to this Circular.
2. Inspect,
examine and impose penalties for administrative violations within its
jurisdiction in respect of cases of administrative violations in the course of
implementing provisions laid down in this Circular.
Chapter VIII
IMPLEMENTARY PROVISIONS
Article 50.
Entry into force
1. This
Circular shall enter into force from November 15, 2022, exclusive of provisions
set forth in clause 2 of this Article.
2. Regulations
on hedging against foreign currency risks for payment periods of foreign loans
and regulations on the responsibility of checking documents of account service
providers for the borrower's implementing foreign currency hedging operations
applied from the time the regulations on conditions for foreign loans that are
not guaranteed by the Government (including regulations on hedging against
foreign currency risks for foreign loans) come into force.
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a) Circular No. 03/2016/TT-NHNN
dated February 26, 2016 of the Governor of the State Bank of Vietnam on
instructions on foreign exchange administration in respect of foreign borrowing
and foreign debt repayment of enterprises;
b) Circular No. 05/2016/TT-NHNN
dated April 15, 2016 of the Governor of the State Bank on amendments to
Circular No. 03/2016/TT-NHNN dated February 26, 2016 of the Governor of the
State Bank of Vietnam on instructions on foreign exchange administration in
respect of foreign borrowing and foreign debt repayment of enterprises;
c) Circular No. 05/2017/TT-NHNN
dated June 30, 2017 of the Governor of the State Bank on amendments to Circular
No. 03/2016/TT-NHNN dated February 26, 2016 of the Governor of the State Bank
of Vietnam on instructions on foreign exchange administration in respect of
foreign borrowing and foreign debt repayment of enterprises.
Article 51.
Transitional provision
1. As for
arrangement of foreign loans in the form of deferred payment for import of
goods: Medium-term or long-term foreign loans arranged in the form of deferred
payment for import of goods of which registration or registration for changes
has been confirmed by the State Bank before the date of entry into force of
this Circular shall be continuously effected (including withdrawal of loan
proceeds or debt repayment) according to statements on confirmation of
registration or registration for changes of foreign loans. As for any change
that may arise as stated in the statement of confirmation of registration,
registration for changes of foreign loan, the borrower shall register the
change based on the agreement with the creditor, and shall not be required to
apply for registration for changes with the State Bank.
2. As for
foreign loans denominated in Vietnam dong:
a) Foreign loans denominated in
Vietnam dong of which registration or registration for changes is confirmed
before April 15, 2016 shall be continuously effected according to the statement
on confirmation of registration or registration for changes of such foreign
loans issued by a State Bank branch.
b) Where there is any additional
change to foreign loans denominated in Vietnam dong which has been certified by
the State Bank (Department of Foreign Exchange Management) in terms of
registration or registration for changes, the identification of the competent
authority to process applications for registration of changes shall comply with
Article 20 of this Circular.
3. As for
arrangement of short-term foreign loans: a) Short-term foreign loans which have
been arranged (loan proceed withdrawal or debt repayment) prior to the date of
entry into force of this Circular shall be continued through current accounts.
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5. Applications
for registration and registration for changes of foreign loans already
submitted to the State Bank before the effective date of this Circular shall
continue to be processed in accordance with Circular No. 03/2016/TT-NHNN dated
February 26, 2016 of the Governor of the State Bank on guidelines for foreign
exchange management for foreign borrowing and repayment of enterprises (and
amending documents), except for the case that foreign loans, the registration
for changes of foreign loans are no longer subject to registration or
registration for changes in accordance with this Circular.
Article 52.
Implementation
Head of Office, Director of
Department of Foreign Exchange Management, Head of affiliates of the State
Bank, credit institutions, foreign bank branches, enterprises, cooperatives,
unions of cooperatives shall implement this Circular.
PP.
THE GOVERNOR
THE DEPUTY GOVERNOR
Pham Thanh Ha
APPENDIX
01
(Issued
together with Circular No..../……/TT-NHNN dated……..of the Governor of the State
Bank of Vietnam)
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
---------------
No. ……………
Re: registration of foreign loan which is
not guaranteed by the Government
[Location]……,
[date]……………….
APPLICATION
FOR REGISTRATION OF FOREIGN LOAN WHICH IS NOT GUARANTEED BY THE GOVERNMENT
To:
The State Bank of Vietnam1
(_ _ _ _ _ _ _ _ _ _ _ _ _ _ _)
- Pursuant to
the Government's Decree No. 219/2013/NĐ-CP dated December 26, 2013 on
management of enterprise’ s foreign borrowing and repayment of foreign debts
which are not guaranteed by the Government;
- Pursuant to
Circular No. …/20…/TT-NHNN dated ……… of the Governor of the State Bank of
Vietnam on instructions on foreign exchange administration in respect of foreign
borrowing and foreign debt repayment of enterprises;
- Pursuant to
the foreign loan agreement signed between the parties dated…………;
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PART ONE: DETAILS ABOUT THE
PARTIES
I. Details about the borrower:
1. The
borrower’s name: …………………………………………………………………………
2. Type of
business entity of the borrower2: ……………………………………………………
3. Address:
…………………………………………………………………………………………
4. Phone number:
…………………… Email: …………………… TIN (Taxpayer Identification Number): ………………….
5. Full name
of the legal representative: ………………………………………………….
Position:
………………………………………………………………………………………….
Full name of person authorized by
legal representative (if any): ……………
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6. Legal
documents3:
7. Borrower's
legal scope of operation4: (specify reference source)
8. Total
investment capital of the project using loan capital (applicable to foreign
loans for the purpose of executing investment projects) is …………………… in which
the total contributed capital is …………. …………, total loan amount is ………… (in USD)
9. Credit
balance for the project at the time of application submission (in USD)5:
- Outstanding
balance of short-term foreign loans: …………………… (of which overdue: ……………………)
- Outstanding balance of short-term
domestic loans: …………………… (of which overdue: ……………………)
- Outstanding balance of medium-
and long-term foreign loans: …………………… (of which overdue: ……………………)
- Outstanding balance of medium-
and long-term domestic loans: …………………… (of which overdue: ……………………)
Number of medium- and long-term
foreign loans of the enterprise (ongoing or outstanding as of the reporting
date): ……………………………………… loans
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11. Details
about the creditor:
1. Name of the
creditor (or the creditor's representative)6: ……………………………………
2. Country of
the creditor (or the creditor's representative):
3. Type of
business entity of the creditor (or the creditor's representative)7:
III. Details about other related
parties:
1. Account
service provider:
1.1. Name of account service
provider: ………………………………………………
1.2. Address of account service
provider: ……………………………………………
1.3. Details about the account for
foreign loan and debt repayment (hereinafter referred to as foreign loan
account) opened at the account service provider:
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2. Other
related parties in case of cash flow generation (specify name and address of
related parties to the loan - if any)8: …………………………………………………………………
PART TWO: DETAILS ABOUT THE LOAN
PURPOSE
1. Loan
purpose9: ……………………………………………………………………………………
2. Documentation
supporting the legality of the loan purpose
2.1. Documentation description10:
……………………………………………………………………………………
2.2. Approved by competent
authorities11 (not applicable in case the loan for execution of an
investment project has been granted an investment certificate by a competent
authority or has the investment policy approved)
………………………………………………………………………………………………
PART THREE: Details about the
loan:
1. Date of
signing of foreign loan agreement: …………………………
2. Loan value:
Terms:
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- Value in words:
………………………………………………….
3. Currency of
the loan:
Terms:
3.1. Currency of indebtedness
amount: …………………………………………….
3.2. Currency of loan proceeds:
………………………………………………
3.3. Currency of repayment amount:
……………………………………………….
4. Type of
loan12: ………………………………………………….
5. Loan term:
………………………………………………………
Terms:
6. Loan
interest rate:
……………………………………………………….
Terms:
7. Kinds of
fees13:…………………………………………………..
Terms:
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9. Borrowing
cost14: ………………………………………………………%/year Terms:
10. Plan for
withdrawal of loan proceeds15:…………………………
Terms:
11. Plan for
repayment:
11.1. Plan for repayment of
principal16:…………………………
Terms:
11.2. Plan for repayment of
interest17:…………………………
Terms:
12. Security
interests18:……………………………………………………..
Terms:
12.1. Guarantee:
Terms:
- Name of the
guarantor: ………………………………………………………………
- Country of the guarantor:
…………………………………………………………
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12.2. Other security interests:
briefly list security interests (type of security, type of collateral,
grantor) and specify terms of reference in the foreign loan agreement.
12.3. Bank providing secured
transactions19: …………………………………………………
13. Other
conditions (if any): …………………………………………………………………
* Notes: specify the terms of
reference in the foreign loan agreement for each content in this section.
14. Expected
use of foreign currency from loan capital (not applicable to loans disbursed to
foreign loan accounts in VND):
(i) Percentage of disbursement
value expected to be sold in foreign currency to authorized credit
institutions: ……%
(ii) Purpose of using the remaining
foreign currency amount (in case the rate at Point 14(i) above is less than
100%)
15. Expected
purchase of foreign currency for debt repayment from authorized credit
institutions: …………………………% of loan value
16. Additional
explanations (if any):
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The undersigned (legal
representative of the borrower) undertakes to:
- Have read
and studied all regulations on foreign loan conditions, regulations on foreign
exchange management when signing and implementing foreign loan agreements; the
regulations of law related to activities using foreign loans; regulations on
implementation of foreign currency derivatives to hedge exchange rate risks
before debt repayment (including but not limited to Decree No. 219/2013/ND-CP
dated December 26, 2013 of the Government on management of enterprise’ s
foreign borrowing and repayment of foreign debts which are not guaranteed by
the Government; Circular of the Governor of the State Bank of Vietnam
stipulating conditions for foreign loans of enterprises not guaranteed by the
Government; Circular of the Governor of the Bank The State Bank of Vietnam on
guidelines for foreign exchange management for foreign borrowing activities of
enterprises and other relevant legal documents);
- Comply with
regulations on administration of foreign loan and repayment; and other relevant
regulations when signing foreign loan agreements and arranging foreign loans;
- Take full
responsibility for the signing and performance of secured transactions related
to foreign loans, ensuring that it is not contrary to the current provisions of
the law on secured transactions and other regulations of relevant legislation.
- All
information stated in this application and attached documents in the
application for foreign loan registration of the borrower is true and correct.
LEGAL
REPRESENTATIVE OF THE BORROWER
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Officer in charge:
………………………………………
Phone number: …………………… Email:
…………………
Transaction address or mailing
address:
……………………………………………………………
Guidelines
for certain contents in the Application for registration of a foreign loan
which is not guaranteed by the Government
___________________________________________
1 Specify that the
document is to be sent to the Department of Foreign Exchange Management or a
State Bank branch of province or centrally-affiliated city (according to the
competence specified in Article 20 of this Circular).
2 State the type of
business entity of the borrower according to the following categories:
- For the
corporate sector (excluding credit institutions, foreign bank branches):
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+ Foreign-invested enterprises: Enterprises
whose 51% to 100% of charter capital is owned by foreign investors (F51);
Enterprises whose 10% to less than 51% of charter capital is owned by foreign
investors (F10).
+ Other businesses:
Cooperatives, Unions of cooperatives, Other enterprises (KHA)
- For credit
institutions, foreign bank branches:
+ Foreign-invested commercial
banks: Joint venture banks, commercial banks with 100% foreign capital;
non-bank credit institutions with more than 50% foreign capital, foreign bank
branches (FFI).
+ State-owned credit institutions:
Credit institutions with more than 50% of charter capital owned by the
State (SFI)
+ Other credit institutions: OFI
3 Specify the contents
of the type of legal documents: number, date of issue, issuing authority,
and amendments and supplemental documents (if any). Depending on each borrower,
these types of legal documents include: establishment decision,
establishment license, business registration certificate, business registration
certificate, investment certificate, certificate of investment registration,
cooperative and union of cooperatives registration papers of the borrower in
accordance with the law.
4 Only list the main
business activities and business lines recorded in the business registration
certificate, establishment license, company’s charter, etc. related to the
project, plan for production and business using capital from the foreign loan.
5 The exchange rate as
specified in Clause 3, Article 20 of this Circular (the accounting exchange
rate quoted by the Ministry of Finance and applied at the time of signing
foreign loan agreements or foreign loan change agreements).
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7 State the type of
business entity of the borrower according to the following categories: (i)
Parent company, associate companies under the parent company; (ii) credit
institution; (iii) financial fund; (iv) other international financial institutions;
(v) other entities.
8 Only list the related
parties to whom the money flows between the borrower and these related parties.
In case there are agents but there is no direct cash flow to those
agents, it is not mentioned in this section. Note that related parties
may be enterprises being fully or partially divided from the original borrower
but are still jointly and severally liable for the loan according to the
agreement on joint liability between the creditor and the parties being fully
or partially divided from the original borrower.
9 Specify the purpose of
using the foreign loan in accordance with regulations on foreign loan
conditions such as: (i) execution of investment projects; (ii) increase of the
scale of business capital according to the loan use plan; (iii) restructuring
of foreign debts, etc. In case the borrower uses the loan for multiple
purposes, the borrower is required to specify the amount used from the foreign
loan for each purpose.
10 In case the purpose
of loan is to execute an investment project: A written approval of investment
policies from a competent authority, an investment registration certificate
according to investment regulations; etc. In case the loan purpose is to
increase the capital scale according to the plan on using the foreign loan:
specify the plan on using the foreign loan approved by the competent authority;
in case the loan purpose is to restructure foreign debts: specify the
plan on structuring foreign debts approved by the competent authority.
11 Specify the competent
authority approving the capital use plan and refer to the regulations regarding
the approving authority:
- Proving that
the use of capital does not require an investment registration certificate in
accordance with the regulations on investment (fully citing the provisions of
the law).
- Referring to
legal regulations and regulations in the borrower's charter to prove the
authority to approve the capital use plan.
12 Specify: (i)
Borrowing in cash: including borrowing directly in cash or through a loan
entrustment contract with a non-resident trustor; (ii) Borrowing through the
issuance of debt instruments (excluding international bonds); (iii) Borrowing
through the form of finance lease.
13 Specify the domestic
fees payable by residents and overseas fees payable by non-residents.
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15 The loan proceed
withdrawal is consistent with the loan agreement. Unless the loan agreement
otherwise stipulates the plan for loan proceed withdrawal, after considering
the production and business plan as well as the capital demand of the borrower
consistent with the loan agreement, the borrower shall proactively provide the
proposed detailed withdrawal plan on a monthly, quarterly, biannual or annual
basis.
16 The debt repayment
plan is consistent with the loan agreement. Unless the loan agreement otherwise
stipulates the detailed debt repayment plan, within the scope of commitments
undertaken in the loan agreement, the proposed production and business plan as
well as the capability of mobilizing capital sources to repay debts to the
creditor, the borrower shall provide the detailed debt repayment plan on a
monthly, quarterly, biannual or annual basis.
17 Clearly specify the
interest payment period and the start date of interest payment.
18 Currently, the
Circular does not stipulate submission of any agreement on security interests,
hence, the reference to regulations on secured transactions shall base on
related terms and conditions specified in the loan agreement.
19 Refer to regulations
in Chapter V of this Circular.
APPENDIX
02
(Issued
together with Circular No..../……/TT-NHNN dated……..of the Governor of the State
Bank of Vietnam)
BORROWER’S
NAME
-------
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Report
on compliance with regulations on credit limits and safety ratios
No.
Expenditure
Regulations
of the State Bank
At
the end of….[month, year]
At
the end of….[month, year]
At
the end of….[month, year]
(the
latest month before the date of signing the loan agreement/agreement to
increase the maximum loan proceed)
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…
At
the end of….[month, year]
(the
latest month before the date of completing the application)
(1)
(2)
(3)
(4)
(5)
(6)
...
...
...
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(…)
(*)
1
…
...
...
...
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2
...
...
...
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…
...
...
...
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In case the borrower has not
complied with regulations on credit limits and safety ratios in the operation
of credit institutions and foreign bank branches, but the non-compliance has
been approved by the Prime Minister or the Governor of the State Bank of
Vietnam in accordance with the law, the borrower clearly states the percentage
of non-compliance, fully lists the approval document(s) of the Prime Minister
or the Governor of the State Bank.
Instructions for making the
report:
- Column (2):
Safety ratios as prescribed in Article 130 of the Law on Credit Institutions
- Column (3):
regulations of the State Bank for each ratio in Column (2) according to the
guiding documents of the State Bank which are in force at the time of
submission of application for registration of foreign loan.
- Column (4)
(5) (6): the safety ratios at the end of the month in the last 03 months before
the date of signing the loan agreement.
- Column (7),
(...) (*): the safety ratios at the end of the month of
consecutive months from the date of signing the loan agreement/agreement to
increase the maximum loan proceed until the date of submission of complete and
valid application.
E.g. A loan agreement was signed on
March 23, 2020. On April 20, 2020, the borrower submitted an application to
register a foreign loan in accordance with regulations. On June 5, 2020,
the borrower submitted a complete and valid application according to the
Instructions for completing the application, the letter of clarification and
equivalent documents, etc. Thus, the months which require reports on safety
ratios include: reports on safety ratios on December 31, 2019, January
31, 2020, February 28, 2020 (three consecutive months prior to the signing date
of the loan agreement), March 31, 2020, April 30, 2020, May 31, 2020
(consecutive months from the signing of the loan agreement to the completion of
the application for registration of the foreign loan).
...
...
...
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(Issued
together with Circular No..../……/TT-NHNN dated……..of the Governor of the State
Bank of Vietnam)
THE
STATE BANK OF VIETNAM
-------
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
---------------
No.
……………
Re. affirmation of foreign loan registration
[Location]……,
[date]……………….
To:
………………………………………
In response to the application for
registration of a foreign loan No…….. dated……….., enclosing documents
of...........(name of the enterprise), the State Bank of Vietnam hereby gives
opinions as follows:
1. Affirming
that (name of the enterprise) has registered a foreign loan with the State Bank
of Vietnam in accordance with applicable laws and regulations on foreign loan
management and repayment as well as other related legislative documents.
...
...
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2. Main
information about the foreign loan:
2.1. The borrower: Name; address
2.2. The creditor1: Name
and country of the creditor
2.3. Other relevant parties2
(if any):
2.4. Date of signing of foreign
loan agreement:
2.5. Loan purpose:
2.6. Loan amount:
2.7. Type of loan:
2.8. Currencies of indebtedness
amount, loan proceed, and repayment amount:
...
...
...
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2.10. Loan interest rate3:
2.11. Penalty interest:
2.12. Types of cost:
2.13. Plan for loan proceed
withdrawal, plan for debt repayment:
- Plan for
loan proceed withdrawal:
- Plan for
principal repayment:
- Plan for
interest repayment:
2.14. Other related information (if
any):
3. Security
interests for the loan as declared by the borrower:
...
...
...
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Enterprise [and relevant
parties] shall take its own legal responsibility for entering into and
executing security agreements and arrangements as to the foreign loan. The
performance of secured transactions related to the foreign loan shall comply
with applicable law on secured transactions and other regulations of relevant
legislation.
Bank providing secured transactions:
Upon providing money transfer
services related to secured transaction for a foreign loan of (name of the
enterprise), the Bank……..should adhere to given responsibilities of a
commercial bank as referred to in regulations of the State Bank on providing
guidance on foreign borrowing and debt repayment of enterprises and other
related legislative documents.
4. The loan is
taken out through the foreign loan account in [currency] at the
Bank...........
Upon providing account services for
a foreign loan of (name of the enterprise), the Bank……..should adhere to given
responsibilities of a commercial bank as referred to in regulations of the
State Bank on providing guidance on foreign borrowing and debt repayment of the
enterprise and other related legislative documents.
5. (Name of
the enterprise) shall take its own legal responsibility for entering into and
executing foreign loan agreements by adhering to the principle of autonomous
borrowing and responsibility for debt repayment. The State Bank shall not
bear any legal and financial liability, except that it shall be responsible for
assuring that (name of the enterprise) has registered its foreign loan along
with main information provided herein.
6. Other
information (if any)
7. The State
Bank shall request (name of the enterprise) to:
7.1. strictly comply with
regulations on foreign loan management and repayment; foreign exchange
management and other related laws and regulations.
...
...
...
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7.3. take full responsibility for
the development, approval and implementation of the plan for using foreign loan
in accordance with the provisions of law; using the foreign loan with proper
purposes as confirmed in this official letter, ensuring compliance with the
provisions of the law on enterprises, investment and other relevant laws;
7.4. make reports on the Website in
accordance with applicable laws and regulations on reporting on foreign
borrowing and debt repayment of the enterprise.
8. Where there
is any breach of regulations on foreign loan management and repayment,
depending on the seriousness of such breach, (name of the enterprise) shall be
subject to penalties in accordance with applicable regulations on imposition of
penalties for administrative violations in the monetary operations and banking
activities.
The State Bank of Vietnam notifies
(name of the enterprise) of this to enforce its implementation.
THE
GOVERNOR
_____________________
1 The creditor (with
respect to foreign bilateral, syndicated loans which do not require any
representative of the creditor) or the creditor's representative (with respect
to foreign syndicated loans which require the creditor’s representative).
It is noted that the confirmation of the representatives of
creditors may be accompanied by a confirmation of the original creditors.
In case there is a representative of the creditor but this representative
is not responsible for the transfer and receipt of the loan proceeds, it
still confirms the specific creditors as the basis for the loan proceed
transfer/receipt.
...
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3 Specify the loan
interest rate and refer to the terms in the loan agreement to show the
principle of interest rate determination and interest calculation.
APPENDIX
04
(Issued
together with Circular No..../……/TT-NHNN dated……..of the Governor of the State
Bank of Vietnam)
BORROWER’S
NAME
-------
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
---------------
No.
……………
Re: registration of changes of foreign loan
not guaranteed by the Government
[Location]……,
[date]……………….
...
...
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To:
The State Bank of Vietnam1
- Pursuant to
the Government's Decree No. 219/2013/NĐ-CP dated December 26, 2013 on
management of enterprise’ s foreign borrowing and repayment of foreign debts
which are not guaranteed by the Government;
- Pursuant to
Circular No. 12/2014/TT-NHNN dated March 31, 2014 of the State Bank of Vietnam
on requirements for taking out foreign loans applied to enterprises not
guaranteed by the Government and amending and replacing documents (if any);
- Pursuant to
Circular No. …/2022/TT-NHNN dated ……… of the Governor of the State Bank of
Vietnam on instructions on foreign exchange administration in respect of
foreign borrowing and foreign debt repayment of enterprises;
- Pursuant to
the foreign loan agreement signed between the parties dated…………;
- Pursuant to
the revised foreign loan agreement signed between the parties dated…………;
(if any);
The borrower, the undernamed,
hereby registers changes of the foreign loan with the State bank of Vietnam as
follows:
I. THE BORROWER:
1. The
borrower’s name: …………………………………………………………………………
...
...
...
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3. Code of
loan: ………………………………………………………………………………
4. Number and
date of confirmation of the registration of the foreign loan issued by the
State bank of Vietnam;
5. Number and
date of confirmation of registration of changes of the foreign loan issued by
the State bank of Vietnam (list all confirmations of registration of changes
available in chronological order);
II. CHANGES IN DETAILS:
1. Change
description 12 ………………………………………………………………………..:
- Original
information: …………………………………………………………………………….
- New information:
…………………………………………………………………………………
Reason for change:
………………………………………………………………………………
2. Change
description n3: ………………………………………………………………………..
...
...
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III. EXPLANATION FOR THE CASE OF
NO AGREEMENT ON CHANGES
…………………………………………………………………………………………………………
IV. PROPOSAL:
[Borrower’s name] requests the
State Bank to confirm that the [borrower’s name] has registered changes of the
foreign loan with the State Bank.
V. COMMITMENT
1. The
representative of the borrower whose signature is appended hereto is committed
to take responsibility for the accuracy of information stated in the
Application form of changes of the foreign loan and documents enclosed thereto.
2. [Borrower’s
name] is committed to comply with regulations of law in Vietnam, regulations of
Decree No. 219/2013/ND-CP dated December 26, 2013 of the Government on
management of borrowing and repayment of foreign loans of enterprises that are
not guaranteed by the Government; Circular No. 12/2014/TT-NHNN dated March 31,
2014 of the State Bank of Vietnam on requirements for taking out foreign loans
applied to the businesses not guaranteed by the Government and amending and
replacing documents (if any); Circular …/2022/TT-NHNN dated ……… of the Governor
of the State Bank of Vietnam on instructions on foreign exchange administration
in respect of foreign borrowing and foreign debt repayment of enterprises and
relevant legislative documents.
...
...
...
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Contact:
Officer in charge: ……………………………………….
Phone number: …………………… Fax:
……………………
Transaction address (or mailing
address):
Guidelines for certain contents
in the Application for registration of changes of foreign loans not guaranteed
by the Government
________________________
...
...
...
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2 Clarify information to
be changed, i.e.
1. Change of
creditor:
- Original
creditor: ……………………………………………………………………………
- New creditor:
……………………………………………………………………………….
In case of changes of the plan for
loan proceed withdrawal, plan for debt repayment, but the loan agreement does
not stipulate these plans, after considering the production and business plan
as well as the capital demand of the borrower consistent with the loan
agreement, the borrower shall proactively provide the proposed detailed
withdrawal plan on a monthly, quarterly, biannual or annual basis.
3 In case there are
multiple changes, the borrower shall specify each change in the same manner as
the instructions mentioned above.
APPENDIX
05
(Issued
together with Circular No..../……/TT-NHNN dated……..of the Governor of the State
Bank of Vietnam)
...
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Phone number: ………………………………
Address: ………………………………………
Type of business entity of the
borrower: ………………………………………
REPORT
ON ARRANGEMENT OF SHORT-TERM FOREIGN LOAN AND DEBT REPAYMENT NOT GUARANTEED BY
THE GOVERNMENT
(Month…year…)
Unit:
in thousand USD
Type of loan:
Reporting period
Next period plan
...
...
...
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Arising during the period
Outstanding balance at the end of period
Withdrawal of loan proceed
Principal repayment
Interest repayment
Total
of which overdue
Withdrawal of loan proceed
...
...
...
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Interest repayment
Changes (*)
Total
of which overdue
Total
Of which, foreign currency sold to credit institution
Total
Of which, foreign currency purchased from credit
institution
...
...
...
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2
3
4
5
6
7
8
9
10
...
...
...
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12
13
14
1. Total
loan in cash, in which:
...
...
...
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- Borrowing from the parent
company and associates of the parent company
...
...
...
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...
...
...
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- Borrowing from other entities
...
...
...
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2. Total
loans in goods, in which:
...
...
...
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...
...
...
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...
...
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- Borrowing from other entities
...
...
...
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3. Total
...
...
...
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...
...
...
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Notes: (*) Specify the reasons
for the changes in Column 7 and the description (if any)
………………………………………………………………………………
Created by
(Signature and full name)
Controlled by
(Signature and full name)
[Location]……,
[date]………
Legal representative of the borrower
(Signature, seal, and full name)
Instructions for making the
report
1. Regulated
entities: Residents being enterprises, cooperatives, unions of
cooperatives, credit institutions and foreign bank branches that are
established and doing business in Vietnam shall make reports on detailed
arrangement of short-term foreign loans that are not guaranteed by the
Government with outstanding debt balances in the reporting period.
...
...
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3. Form
of report: Report in writing to the State Bank branch of province
where borrower’s head office is located.
4. Recipient
of report: The State Bank branch of province where borrower’s head
office is located.
5. Instructions
for making the report:
- Loans
subject to the report are short-term foreign loans (with loan term up to 1
year). The loan term commences from the expected date of loan proceed
withdrawal (receipt of money or customs clearance of goods) to the expected
date of final repayment as specified in the loan agreement. As for a
short-term foreign loan that is overdue but the borrower has arranged to repay
the loan within 10 days from the anniversary of one year of the loan (thus not
having to register the loan with the SBV), it will be reported as a short-term
loan.
- The borrower
sends a report to fill in the code of type of business entity of the borrower
according to the categories as follows:
Type
of business entity of the borrower
Code
...
...
...
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1
State-owned enterprises as
defined in the Law on Enterprises 2015
SOE
2
Enterprises with 50% to less than
100% of charter capital owned by the State
S50
3
Enterprises with 51% to less than
100% of charter capital owned by foreign investors
...
...
...
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4
Enterprises with 10% to 51% of
charter capital owned by foreign investors
F10
5
Other enterprises
KHA
Category of banks
...
...
...
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Joint venture banks, wholly
foreign-owned banks, foreign bank branches
FOB
7
Other joint-stock commercial
banks
BAK
The borrower fills in the line
“Type of business entity of the borrower”
- Column 7 -
Changes: Other increase/decrease of outstanding balance of the foreign loan in the
reporting period but no cash flow is generated due to: (i) exchange rate
fluctuations when converting from loan currency to USD between reporting
periods; (ii) adjustment due to erroneous reporting in the previous period(s);
(iii) converting short-term loans to medium-term and long-term loans; (iv)
converting loan capital into contributed capital; (v) writing off debt;...
Column 7 receives the value (+) if
it is generated, and the value (-) if it is incurred. The borrower
clearly reports the item that gives rise to the difference
- Column 8 =
Column 2 + Column 4 - Column 5 + Column 7
...
...
...
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The borrower’s name:
………………………………………
Phone number: ………………………………
Address: ………………………………………
Type of business entity of the
borrower: ………………………………………
REPORT
ON ARRANGEMENT OF MEDIUM AND LONG-TERM FOREIGN LOANS AND DEBT REPAYMENT NOT
GUARANTEED BY THE GOVERNMENT
(Month…year…)
In
thousand foreign currency units
The borrower’s name
...
...
...
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Reporting period
Next period plan
Account service provider
...
...
...
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Maximum loan proceed
Type of loan
Guarantee
Type of business entity of the creditor
Outstanding balance at beginning of period
Arising during the period
Outstanding balance at the end of period
Withdrawal of loan proceed
Repayment
...
...
...
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Total
...
...
...
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Withdrawal of loan proceed
Principal repayment
Interest repayment
Changes (*)
Total
of which overdue
...
...
...
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1
2
...
...
...
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4
5
6
7
8
9
10
11
12
...
...
...
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14
15
16
17
...
...
...
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I.
Total value of foreign loans in the form of deferred payment (in thousand
USD)
...
...
...
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xxx
xxx
xxx
xxx
xxx
xxx
...
...
...
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xxx
xxx
xxx
xxx
xxx
...
...
...
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...
...
...
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II.
Details of loans with other forms (not in the form of deferred payment) - in
thousand foreign currency units
...
...
...
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…
...
...
...
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...
...
...
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...
...
...
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………
...
...
...
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...
...
...
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Total
...
...
...
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...
...
...
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...
...
...
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…
...
...
...
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...
...
...
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...
...
...
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………
...
...
...
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...
...
...
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Total
...
...
...
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...
...
...
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...
...
...
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…
...
...
...
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...
...
...
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...
...
...
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………
...
...
...
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...
...
...
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Total
...
...
...
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...
...
...
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...
...
...
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xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
xxx
...
...
...
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xxx
...
...
...
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Created by
(Signature and full name)
Controlled by
(Signature and full name)
[Location]……,
[date]……………….
Legal representative of the borrower
(Signature, seal, and full name)
Instructions for making the
report
1. Regulated
entities: Residents being enterprises, cooperatives, unions of
cooperatives, credit institutions and foreign bank branches that are
established and doing business in Vietnam shall make reports on detailed
arrangement of medium- and long-term foreign loans that are not guaranteed by
the Government with outstanding debt balances in the reporting period.
2. Report
submission deadline: No later than the 5th of the month
immediately following the reporting month.
3. Form
of report: Report in writing to the State Bank branch of province
where borrower’s head office is located:
4. Recipient
of report: The State Bank branch of province where borrower’s head
office is located.
...
...
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- The borrower
sends a report to fill in the code of type of business entity of the borrower
according to the categories as follows:
Type
of business entity of the borrower
Code
Category of enterprises
(excluding commercial banks, foreign bank branches)
1
State-owned enterprises as
defined in the Law on Enterprises 2015
...
...
...
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2
Enterprises with 50% to less than
100% of charter capital owned by the State
S50
3
Enterprises with 51% to less than
100% of charter capital owned by foreign investors
F51
4
Enterprises with 10% to 51% of
charter capital owned by foreign investors
F10
...
...
...
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Other enterprises
KHA
Category of banks
6
Joint venture banks, wholly
foreign-owned banks, foreign bank branches
FOB
7
...
...
...
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BAK
- Column 3
“Type of loan”: Specify the code of loan type as follows:
No.
Form
of loan
Code
1
Borrowing in cash (including
direct loans in cash or through loan entrustment contracts with non-residents)
T
2
...
...
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H
3
Borrowing through the issuance of
debt instruments
B
4
Borrowing through financial
leasing
L
- Column 4
"Guarantee": Specify the guarantor of the loan guarantee under the
following symbol: Guaranteed by residents (R); Guaranteed by a
non-resident (NR); Non-guaranteed loan (N).
- Column 5
“Type of business entity of creditor”: State the type of business entity of the
creditor as follows: (i) the creditor is a parent company, a member company of
the parent company (IN); (ii) the creditor is: A credit institution,
international financial institution (CI); (iii) the creditor is: Other entities
not falling into the above two categories (for syndicated loans, write
according to the majority creditor) (KH).
...
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Column 11 receives the value (+) if
it is generated, and the value (-) if it is incurred., the borrower clearly
reports the details of the change.
- Column 12 =
Column 6 + Column 8 - Column 9 + Column 11
- Test
formula: Column 6 of the reporting period = Column 12 of the preceding
reporting period
