Thông tư 03/2016/TT-NHNN hướng dẫn về quản lý ngoại hối đối với việc vay, trả nợ nước ngoài của doanh nghiệp do Thống đốc Ngân hàng Nhà nước Việt Nam ban hành

CIRCULAR

PROVIDING SEVERAL INSTRUCTIONS ON 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 No. 46/2010/QH12 dated June 16, 2010;

Pursuant to the Law on Credit Institutions No. 47/2010/QH12 dated June 16, 2010;

Pursuant to the Ordinance on Foreign Exchange No. 28/2005/PL-UBTVQH11 of the National Assembly Standing Committee dated December 13, 2005 and the Ordinance No. 06/2013/PL-UBTVQH13 dated March 18, 2013 on amending and supplementing several Articles of the Ordinance on Foreign Exchange;

Pursuant to the Government's Decree No. 156/2013/ND-CP dated November 11, 2013 on defining the functions, tasks, powers and organizational structure of the State Bank of Vietnam;

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;

At the request of the Director of the Foreign Exchange Administration;

The Governor of the State Bank of Vietnam hereby issues the Circular providing several instructions on 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 foreign borrowing and foreign debt repayment accounts at authorized credit institutions located within the territory of Vietnam;

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 guarantee for foreign loans;

dd) Provision, use and administration of information posted on the website for administration of foreign borrowing and repayment of foreign loans which are not guaranteed by the Government (hereinafter referred to as website);

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, reporting mechanism in respect of foreign loans of commercial banks of which 50% of the charter capital is held by the State, 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).

3. Registration, registration for changes, reporting mechanism in respect of foreign loans (including those made in the form of international bond issuance of enterprises) which are not guaranteed by the Government under the provisions set forth by the State Bank.

4. Opening and use of foreign currency accounts for effecting of foreign loans under the particular provisions set forth by the State Bank.

5. Non-residents’ purchase of debt instruments issued by residents within the territory of Vietnam under the provisions of prevailing laws on indirect foreign investment in Vietnam.

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 providing account services relating to foreign borrowing and repayment of foreign debts and guarantee for foreign loans within the territory of Vietnam.

3. Organizations, individuals who are known as the party offering guarantee for foreign loans of the borrower (hereinafter referred to as guarantor).

4. Credit institutions, foreign bank branches that are entrusted with lending tasks by the non-resident trusting party.

5. Organizations, individuals concerning the borrower's foreign borrowing operations.

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 commercial banks, foreign bank branches operating within the territory of Vietnam where the borrower and guarantor of foreign loans open payment accounts to withdraw funds, repay foreign debts and guarantee foreign loans; commercial banks, foreign bank branches where foreign investors open payment accounts to transfer funds in the pre-investment stage.

3. Foreign finance leasing refers to resident entities’ obtaining mid-term or long-term credit loans under a finance lease contract with the non-resident creditor and this contract thereof is required to meet one of the terms and conditions referred to in Article 113 of the Law on Credit Institutions No. 47/2010/QH12 dated June 16, 2010.

4. Debt instruments refer to treasury bills, bills of exchange, bonds issued by the borrower outside the territory of Vietnam to non-resident entities.

5. Foreign loans denominated in Vietnam dong refer to foreign loans disbursed in Vietnam dong or debt obligations arising out of these loans denominated in Vietnam dong.

Article 4. Rules for administration of foreign loans arranged by means of deferred payment for import of goods

1. 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.

2. Opening and use of loan accounts, repayment of foreign debts, transfer of funds for repayment of foreign debts and preparation of review report on effecting of foreign loans arranged by means of deferred payment therefor should be consistent with provisions laid down in this Circular and other relevant laws and regulations.

Article 5. Rules for selecting forms of declaration of information for registration or registration for changes of loans, and preparing review reports on effecting of conventional loans

1. The borrower may choose to carry out declaration of information for registration or registration for changes of loans, and preparing review reports on effecting of conventional loans in one of the following forms:

a) Online declaration by means of websites;

b) Conventional declaration through any non-website means.

2. The borrower may choose online declaration of registration information rather than conventional declaration thereof. Where such choice is made, the borrower shall not be allowed to change to the conventional declaration form.

3. The State Bank should encourage the borrower to choose the online declaration form.

Chapter II

WEBSITE

Article 6. 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 effecting 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 be entitled to choose the online declaration form to sign up for their accounts to access these websites under the provisions of Article 8 hereof.

Article 7. 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, he temporarily uses the conventional declaration form instead of the online one to give information for registration or registration of changes of foreign loans, and preparation of review reports on effecting of these foreign loans at the time when such errors have not been corrected. After successfully dealing with such failure, the State Bank of cities or provinces, or the State Bank (Foreign Exchange Administration), shall be held responsible within their jurisdiction for inputting relevant updated information into its websites on the basis of application form for registration for loans, application form for registration of changes of loans and written reports of borrowers which are similar to those submitted by borrowers using the conventional declaration form.

2. Where any technical failure results from fault on the part of the borrower, he shall assume the following responsibilities:

a) Urgently and proactively find solutions to successfully dealing with such failure, or act on his own initiative in cooperating with the technical department in charge of the State Bank’s websites to find solutions to correcting errors;

b) Temporarily use the conventional declaration form instead of the online one to give information for registration or registration of changes, and preparation of review reports on effecting of these conventional foreign loans, and concurrently notify the State Bank in writing of this technical failure;

c) Post updated information about foreign loans which have been registered or permitted for registration for changes and review reports on effecting of conventional foreign loans on websites promptly after such failure is successfully corrected.

3. After that technical failure is corrected as referred to in paragraph 1 and 2 of this Article, the borrower shall be allowed to resume the online declaration on websites to complete registration procedures regarding foreign loans in accordance with the provisions laid down in this Circular.

Article 8. 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’s selection of the online declaration form for application for loan registration;

b) Individuals 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 as prescribed by this Circular.

3. Procedures for registration and issuance of log-in accounts for the borrowers who currently owe outstanding foreign debts shall be stipulated as follows:

a) Users fill their information in online declaration forms to apply for log-in accounts according to instructions available on websites, and then print out these forms and append their signatures and stamps;

b) Users send the declaration forms referred to in subparagraph a of this paragraph by post or directly submit these forms to competent authorities as provided for in subparagraph a paragraph 6 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 paragraph 6 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 and issuance of log-in accounts of borrowers who do not owe outstanding foreign debts, but apply for registration and registration for changes of foreign loans with the State Bank shall be stipulated as follows:

a) Request for issue of log-in accounts coincides with declaration of information about foreign loans at the loan registration form or the registration form for changes of foreign loans with the State Bank on its websites in accordance with subparagraph a paragraph 1 Article 13 and subparagraph a paragraph 1 Article 16 hereof;

b) Issue of log-in accounts to borrowers coincide with confirmation of registration or registration for changes of foreign loans sent to borrowers. On the date in which registration of foreign loans is confirmed, competent authorities referred to in paragraph 6 of this Article shall consider approving and granting log-in accounts to registered email boxes that borrowers have specified in the application for registration or registration of changes of foreign loans.

5. 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:

(i) Borrowers fill their information in online declaration forms to apply for changes made to log-in accounts according to instructions available on websites;

(ii) 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 paragraph 6 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.

6. Authority to issue and manage log-in accounts:

a) The State Bank branches of centrally-affiliated cities and provinces where borrowers' head offices are located (hereinafter referred to as branch) shall issue and manage log-in accounts of the following users:

(i) Borrowers who currently owe outstanding foreign debts;

(ii) Borrowers who do not owe outstanding foreign debts, but have applied for registration and registration for changes of foreign loans, all of whom are subject to registration or registration for changes with branches under the provisions hereof;

b) Foreign Exchange Administration affiliated to the State Bank shall issue and manage log-in accounts of the following users:

(i) Individual or institutional entities referred to in subparagraph b and c paragraph 1 of this Article;

(ii) Borrowers who do not owe outstanding foreign debts, but have applied for registration and registration for changes of foreign loans, all of whom are subject to registration or registration for changes with the State Bank (Foreign Exchange Administration) under the provisions hereof.

Chapter III

PROCEDURES FOR REGISTRATION AND REGISTRATION FOR CHANGES TO ENTERPRISES’ FOREIGN LOANS WHICH ARE NOT GUARANTEED BY THE GOVERNMENT

Section 1. LOAN REGISTRATION

Article 9. Loans subject to registration

Loans subject to registration with the State Bank include:

1. Mid-term and long-term foreign loans.

2. Renewed short-term loans 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 on the anniversary of the date of first fund withdrawal in a full 01 (one) calendar year, except to the extent that borrowers have already fulfilled their debt obligations within a permitted duration of 10 (ten) days after the anniversary of the date of first fund withdrawal in a full 01 (one) year.

Article 10. Loan term as the basis for determination of registration obligations

1. In respect of loans referred to in paragraph 1 Article 9 hereof, loan term shall be determined from the scheduled date of first fund withdrawal to the scheduled date of final debt repayment under terms and conditions of foreign loan agreements.

2. In respect of loans referred to in paragraph 2 Article 9 hereof, loan term shall be determined from the date of first fund withdrawal to the scheduled date of final debt repayment under terms and conditions of foreign loan and foreign loan renewal agreements.

3. In respect of loans referred to in paragraph 3 Article 9 hereof, loan term shall be determined from the date of first fund withdrawal to the scheduled date of final debt repayment.

4. The fund withdrawal date defined in this Article is the loan disbursement date in respect of those that require cash disbursement, or the date of customs clearance of goods in respect of those arranged in the form of a foreign finance lease in consistence with relevant laws and regulations.

Article 11. Foreign loan agreement as the basis for loan registration

1. Foreign loan agreement as the basis for loan registration (hereinafter referred to as foreign loan agreement) refers to agreements effecting fund withdrawal which are entered into between borrowers and non-resident creditors, and under which debt repayment obligations of borrowers or debt instruments issued by residents to non-residents arise.

2. Borrowers shall not be subject to procedures for loan registration when signing agreements which effect fund withdrawal with non-residents such as framework credit pacts, memoranda and other similar arrangements (hereinafter referred to as framework agreements), unless otherwise stipulated by paragraph 3 of this Article. Contents of framework agreements must ensure consistency with Vietnam laws and regulations.

3. Where conventional mid-term or long-term loans of borrowers arise due to the presence of written fund withdrawal arrangements on the basis of general agreements, borrowers shall apply for registration of their loans in accordance with this Circular.

Article 12. 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 and receive direct cash disbursements from non-resident creditors.

2. Credit institutions, foreign bank branches that are entrusted with lending tasks by non-resident trusting parties.

3. Parties who are obliged to repay debts according to debt instruments issued to non-residents.

4. Lessees who are parties to finance lease contracts with non-resident lessors.

Article 13. Processes for loan registration

1. Preparing the registration form for foreign loans which are not guaranteed by the Government:

a) If a borrower chooses the online registration, he is required to fill in the registration form for foreign loans which are not guaranteed by the Government on websites in order to obtain loan codes, and print out that form, and give their signature and stamp;

b) If a borrower chooses the conventional registration, he is required to complete the registration form given in the Annex 01 hereto.

2. Sending or submitting dossiers to apply for such registration:

a) Borrowers are required to send their dossiers submitted to apply for loan registration as provided for herein by post or directly to authorities accorded authority over loan registration confirmation referred to in Article 18 hereof;

b) Borrowers who have chosen the online registration can choose to send their documents online according to instructions available on the websites.

3. Time limit for sending or submission of dossiers:

Borrowers must send their dossiers within a maximum duration of 30 (thirty) days starting after:

a) the date on which the mid-term or long-term agreement is concluded, or the written guarantee is signed in respect of secured loans, or the date on which written fund withdrawal arrangements are concluded in the event that contracting parties have agreed upon such fund withdrawal under signed framework agreements and before such fund withdrawal takes place;

b) the date on which the agreement on renewal of a short-term foreign loan into a mid-term or long-term loan is effected in respect of conventional loans referred to in paragraph 2 Article 9 hereof;

c) the anniversary of the date of first fund withdrawal in full 01 (one) year in respect of conventional loans provided for in paragraph 3 Article 9 hereof.

4. The State Bank shall send approval or rejection of confirmation of loan registration within the following permitted periods:

a) 12 (twelve) working days of receipt of valid and sufficient dossiers from borrowers in the event that borrowers choose to apply for such registration online;

b) 15 (fifteen) working days of receipt of valid and sufficient dossiers from borrowers in the event that borrowers choose the conventional registration; or

c) 45 (forty-five) 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 prevailing laws and regulations on enterprises’ eligibility conditions for foreign borrowing of enterprises that are not guaranteed by the Government;

d) In the event of rejecting confirmation of loan registration, the State Bank must give written explanation for such rejection.

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.

6. Competent authorities referred to in Article 18 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 choose the online registration;

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 choose the conventional registration.

Article 14. Loan registration dossier

1. Loan registration form stipulated in paragraph 1 Article 13 hereof.

2. Copy (countersigned by the borrower) of legitimate dossiers of both a borrower and a loan user in the event that the borrower is not a loan user, including establishment permit, business registration certificate, enterprise registration certificate, investment certificate or other equivalents, cooperative or cooperative federation registration certificate in accordance with laws and amendment or supplementation documents (if applicable).

3. Copy (countersigned by the borrower) or original of written proof of borrowing purposes, including:

a) In respect of loans stipulated in paragraph 1 Article 9 hereof:

(i) Production and business plans, investment projects using foreign loans which are approved by competent authorities in accordance with the Investment Law, Enterprise Law and Statute, Cooperative Law and Statute as well as other relevant legislative documents in respect of loans used for executing these production and business plans or investment projects, except to the extent of investment projects in which certificates of investment are issued by competent authorities with clear determination of investment fund volume;

(ii) Foreign debt restructuring plans of the borrower approved by competent authorities in accordance with the Enterprise Law and Statute, Cooperative Law and Statute as well as other relevant legislative documents in respect of loans used for restructuring foreign debts of the borrower;

b) In respect of loans stipulated in paragraph 2 and 3 Article 9 hereof:

Report stating that use of short-term loans conforms to regulations on eligibility conditions for short-term foreign borrowing (documentary evidence attached hereto) and debt repayment plans in respect of foreign loans of which confirmation of registration by the State Bank is requested.

4. Copy and Vietnamese translation (countersigned by the borrower) of foreign loan agreements and agreements on renewal of short-term loans into mid-term or long-term loans (if applicable); or written document on fund withdrawal attached to framework agreements.

5. Copy and Vietnamese translation (countersigned by the borrower) of written guarantee commitment (letter of guarantee, contract of guarantee or other commitments) in terms of secured loans.

6. Copy (countersigned by the borrower) of documents of competent authority on approval of foreign loans in accordance with laws on task and authority assignment in relation to implementation of authority, responsibilities and obligations of owners of state-owned enterprises and state-owned capital invested in enterprises, if the borrower is a state-owned enterprise.

7. Report on compliance with regulations of the State Bank on credit limits and safety ratios of credit institutions, foreign bank branches on the latest month-end date prior to the date of effecting foreign loan agreements 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 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 fund withdrawal 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 mid-term or long-term foreign loans of directly foreign-invested enterprises in accordance with prevailing relevant laws on foreign direct investment in Vietnam, a confirmation of collection and spending transactions relating to loan origination given by the creditor’s account service provider is required;

c) If a foreign loan is covered by paragraph 2 and 3 Article 9 hereof, a statement given by the borrower’s account service provider on fund withdrawal and repayment of an initial short-term foreign loan is required.

9. Documents or invoices indicating legally distributed Vietnam-dong profits gained from direct investments of the creditor who is the foreign investor making the capital contribution to the borrower, and a statement of account service providers on distribution and transmission of profits to the home country of the creditor are required to serve as evidence of disbursement of foreign loans in respect of foreign borrowing in Vietnam dong in accordance with prevailing regulations on conditions for foreign borrowing in Vietnam dong.

10. Explanatory statement on demands for foreign borrowing in Vietnam dong in respect of foreign borrowing in Vietnam dong under the Governor’s permission 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 15. Cases in which registration for changes of loans is required

1. Unless otherwise provided for by paragraph 2 and 3 of this Article, if there is any change to contents relating to loans referred to in the confirmation of foreign loan registration given by the State Bank (according to the form given in Annex No.02 hereto), 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. If the plan for fund withdrawal, debt repayment and actual fee remittance is changed within a permitted duration of 10 (ten) days as against the one previously approved by the State Bank, the borrower shall be responsible for notifying in writing the account service provider to carry out fund withdrawal and debt repayment according to the changed plan; By doing so, registration for changes of such loan with the State Bank shall not be required.

3. The borrower shall only notify in writing the State Bank and shall not apply for registration of changes of loans in respect of the following contents:

a) Change of the borrower's address in the city or province where the borrower’s head office is located;

b) 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;

c) Change of the commercial transaction name of the account service provider.

4. Within a maximum period of 30 (thirty) days from the date of change or receipt of notification of change made to contents referred to in paragraph 3 of this Article, the borrower shall send notification by post or directly to the authority in charge of confirmation of registration of loans according to authority covered by Article 18 hereof.

Article 16. Processes for registration for changes of loans

1. Preparing the application for registration for changes of foreign loans:

a) If the borrower chooses the online registration, he is required to fill in the registration form for changes of foreign loans on the websites, and print out that form, and append their signature and stamp;

b) If a borrower chooses the conventional registration, he is required to complete the registration form given in the Annex 03 hereto.

2. Sending or submitting dossiers to apply for such registration:

a) Within a maximum period of 30 (thirty) days from the date on which an agreement on changes is effected or before the date on which changes to contents occur (applicable to the case in which changing contents is not subject to any agreement on changes but such changed contents still ensure consistency with foreign loan agreements, the borrower shall send dossiers to apply for registration for changes of loans by post or directly to the nearest authority in charge of confirmation of registration of loans with the nearest authority in charge of registration for changes of loans in order to make registration of changes of loans according to authority covered by Article 18 hereof.

b) Borrowers who have chosen the online registration can choose to send their documents online according to instructions available on the websites.

3. The State Bank shall send written approval or rejection of confirmation of registration for changes of loans within the following permitted periods:

a) 12 (twelve) working days of receipt of valid and sufficient dossiers from borrowers in the event that borrowers choose to apply for such registration online; or

b) 15 (fifteen) working days of receipt of valid and sufficient dossiers from borrowers in the event that borrowers choose the conventional registration;

c) In the event of rejecting confirmation of registration for changes of loans, the State Bank must give written explanation for such rejection.

4. Competent authorities referred to in Article 18 hereof shall assume the following responsibilities:

a) Check consistency and accuracy of dossiers submitted to apply for registration for changes of loans and information declared on websites; keep borrowers updated on the processing status of registration application on websites if they choose the online registration;

b) Input information regarding loans on websites to 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 choose the conventional registration.

Article 17. Application for registration for changes of foreign loans

1. The registration form for changes to loans stipulated in paragraph 1 Article 16 hereof.

2. Copy or Vietnamese translation of agreements on changes to loans which have been signed (countersigned by the borrower) in the event that contents of such changes need to be agreed upon between parties.

3. Copy (countersigned by the borrower) of the guarantor’s consent regarding contents of changes of loans in the event that the borrower’s loans are guaranteed.

4. Copy (countersigned by the borrower) of documents of competent authorities in accordance with laws on task and authority assignment in relation to implementation of authority, responsibilities and obligations of owners of 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 the event that loan quota or period is increased or extended respectively.

5. Elements of the application dossier stipulated by paragraph 3 Article 14 hereof in the event that loan quota is increased.

6. Elements of the application dossier stipulated by paragraph 7 Article 14 hereof in the event that the borrower that is a credit institution, foreign bank branch increases foreign loan quota.

7. Document issued by the account service provider regarding confirmation of fund withdrawal 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 quota, or the plan for fund withdrawal or debt repayment, or the date on which the commercial bank provides account services.

Section 3. CONFIRMATION OF REGISTRATION OR REGISTRATION FOR CHANGES OF ENTERPRISES’ FOREIGN LOANS WHICH ARE NOT GUARANTEED BY THE GOVERNMENT

Article 18. Authority over confirmation of registration or registration for changes of loans

1. The State Bank (Foreign Exchange Administration) shall carry out confirmation of registration or registration for changes in respect of a loan for which quota is more than USD (or other equivalents) 10 (ten) million and other foreign loans denominated in Vietnam dong.

2. The State Bank branches of centrally-affiliated cities and provinces where borrowers' head offices are located shall carry out confirmation of registration or registration for changes in respect of a loan for which quota is more than USD (or other equivalents) 10 (ten) million.

3. Where there is any increase or reduction in loan quota, 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 area, which entails changes to the authority in charge of confirmation of registration for changes of loans, the authority in charge of confirmation of registration or registration for changes of initial loans shall assume the following responsibilities:

a) Act as the contact point to receive applications for registration for changes of loans from the borrower;

b) Within a maximum period of 07 (seven) working days of receipt of the application for registration for changes from the borrower, 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 paragraph 1 and 2 of this Article for further processing activities.

4. Where there is any additional change to foreign loans denominated in Vietnam dong which has been certified by the State Bank branch in terms of registration or registration for changes, dealing with applications for registration for changes shall be consistent with the processes stipulated in paragraph 3 of this Article.

5. Where loans denominated in Vietnam dong are subject to the Governor’s consideration or approval, the Foreign Exchange Administration 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.

Article 19. Bases for confirmation of registration or registration for changes of loans

1. Total limit on conventional foreign commercial loan which is approved by the Prime Minister.

2. Compliance with and fulfillment of regulations on conditions for foreign borrowing, administration of foreign exchange in respect of foreign borrowing and repayment of foreign debts in accordance with prevailing regulations of the State Bank and other relevant laws of the borrower.

3. Information provided by related organizations or agencies upon the request of the State Bank.

Article 20. Processing of applications for registration or registration for changes of loans in the event of the borrower's commission of administrative violations against regulations on administration of foreign exchange, foreign borrowing and repayment of foreign debts

In the course of processing applications for registration or registration for changes of loans, if the State Bank establishes that the borrower commits administrative violations against regulations on administration of foreign exchange, foreign borrowing and repayment of foreign debts (even including acts of incompliance with reporting regulations concerning foreign borrowing and foreign debt repayment), consideration of confirmation of registration or registration for changes of loans requested by the borrower shall resume after actions against such violations in accordance with prevailing laws on imposition of penalties for administrative violations against regulations on currency and banking areas are completed.

Article 21. 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 loans issued by the State Bank shall become automatically void and null in the event that, in excess of the maximum period of 06 (six) months after the last date of the fund withdrawal term, and though the State Bank has given its confirmation, the borrower fails to implement fund withdrawal and register changes to the plan for loan fund 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 22. Cancellation of the written confirmation of registration or registration for changes of loans

1. Cancellation of the written confirmation of registration or registration for changes of loans shall occur if:

a) Any application for registration or registration for changes of loans submitted by the borrower contains misrepresented information which states that the borrower meets conditions for confirmation of registration or registration for changes of foreign loans;

b) Any application for registration or registration for changes, while meeting regulations on procedures for registration or registration for changes of loans under the provisions of this Circular, contains information subject to these changes which is not accurate and may lead to any defects in contents of the written confirmation or certification of registration for changes given by the State Bank;

c) The written confirmation of registration or registration for changes of loans is issued in breach of stipulated authority stated in Article 18 hereof.

2. After fund withdrawal, competent authorities issue a document indicating that the written confirmation of registration or registration for changes becomes void and null in specific cases stipulated by subparagraph b and c paragraph 1 of this Article.

3. Competent authorities in charge of granting of the written confirmation of registration or registration for changes of loans referred to Article 18 hereof send documents to the borrower and related parties on cancellation thereof and reasons for cancellation of such written confirmation.

4. In respect of cases stipulated by subparagraph b, c paragraph 1 and 2 of this Article, after the written confirmation of registration or registration for changes of loans becomes void and null, the borrower shall be responsible for cooperating with competent authorities in application for registration or registration for changes of loans in accordance with provisions laid down in this Circular in order to take further steps towards such loans.

Article 23. 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 (Foreign Exchange Administration and its Branches) shall duplicate and send the following documents to account service providers 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 (Foreign Exchange Administration) shall duplicate and send the documents referred to subparagraph a and b paragraph 1 of this Article to the State Bank branches of centrally-affiliated cities and 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 centrally-affiliated cities and 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 (Foreign Exchange Administration) for the purpose of cooperation in administrative activities.

Chapter IV

OPENING AND USE OF FOREIGN BORROWING AND FOREIGN DEBT REPAYMENT ACCOUNTS

Section 1. FOREIGN BORROWING AND FOREIGN DEBT REPAYMENT ACCOUNTS

Article 24. Foreign borrowing and foreign debt repayment accounts of the borrower that is not a commercial bank or foreign bank branch

1. Foreign borrowing and foreign debt repayment account refers to the payment account that the borrower opens at an account service provider to withdraw fund and repay debts incurred from foreign loans and other money transfer activities relating to foreign borrowing and foreign debt repayment and foreign loan guarantee.

2. If the borrower is a directly foreign-invested enterprise, a foreign borrowing and foreign debt repayment account is a direct investment account. In addition to monetary collection or spending pertaining to foreign borrowing and foreign debt repayment activities as prescribed by Article 26 and 27 hereof, this borrower shall use such account (also foreign borrowing and foreign debt repayment account) for other monetary collection or spending relating to foreign direct investment in Vietnam in accordance with current laws and regulations on foreign exchange administration in respect of foreign direct investment in Vietnam.

3. The borrower that is not a directly foreign-invested enterprise must open a foreign borrowing and foreign debt repayment 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 be allowed to open its account at only 01 (one) account service provider. The borrower may use 01 (one) account for 01 (one) or multiple foreign loans. Monetary collection or spending of these accounts shall be stipulated by Article 26 and 27 hereof.

Article 25. Monitoring of foreign borrowing and foreign debt repayment carried out by the borrower that is not a commercial bank or foreign bank branch

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 26. Monetary collection or spending on accounts for foreign borrowing or foreign debt repayment in foreign currency

Foreign currency loan or foreign currency debt repayment accounts shall only be used for performing transactions relating to foreign borrowing and foreign debt repayment activities as follows:

1. Collection from:

a) Withdrawing foreign loan funds;

b) Purchasing foreign currency from account service providers for the purpose of repaying debts (principal and interest) incurred from foreign loans, or payment of fees in accordance with loan agreements;

c) Converting foreign currency from foreign loan fund withdrawals in the event that the creditor's disbursements are not denominated in the currency unit used in the foreign borrowing or foreign debt repayment 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.

2. Spending on:

a) transferring money to repay debts (principal and interest) incurred from foreign loans;

b) transferring money abroad to pay compulsory debt owed to the non-resident guarantor 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;

e) transferring money to pay fees according to foreign loan agreements;

g) Conversing 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 foreign borrowing and foreign debt repayment accounts.

Article 27. Monetary collection or spending on accounts for foreign borrowing and foreign debt repayment in Vietnam dong

Accounts for foreign borrowing and foreign debt repayment in Vietnam dong shall only be used for performing transactions relating to foreign loans as follows:

1. Collection from:

a) transferring foreign loan fund 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 funds from sale of foreign currency to authorized credit institutions located within the territory of Vietnam unless the creditor uses 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.

2. Spending 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;

b) buying foreign currency to pay debts (principal, interest) incurred from foreign loans unless the borrower uses Vietnam-dong payment accounts for the purpose of recovering debts agreed upon in loan agreements;

c) paying debts owed to the guarantor 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.

Article 28. Change of loan accounts for foreign debt repayment

1. Where foreign borrowing and foreign debt repayment accounts are changed due to any change to account service providers, the borrower which is not a commercial bank, foreign bank branch shall request the current account service provider to give confirmation of fund withdrawal and debt repayment relating to foreign loans in order for the new account service provider to continue to monitor effecting of foreign loans in accordance with prevailing laws on administration of foreign borrowing and foreign debt repayment.

2. Where currency used in foreign borrowing and foreign debt repayment accounts is changed but account service providers are not changed, these providers shall be responsible for overseeing fund withdrawal and foreign debt repayment in accordance with prevailing laws on administration of foreign borrowing and foreign debt repayment.

Article 29. Effecting of foreign loans from Vietnam-dong distributed profits earned from the borrower’s direct investment activities

1. The borrower that is a directly foreign-invested enterprise shall be entitled to carry out foreign borrowing in Vietnam dong from Vietnam-dong distributed profits earned from direct investment activities of the creditor that is a foreign investor that makes capital contribution to the borrower.

2. The creditor that is a non-resident foreign investor making capital contribution to the borrower shall be allowed to use Vietnam-dong non-resident payment accounts for performing collection or spending transactions relating to loans denominated in Vietnam dong in accordance with provisions set forth in paragraph 1 of this Article.

Section 2. FUND WITHDRAWAL, MONEY TRANSFER FOR FOREIGN LOAN ARRANGEMENT

Article 30. Principle of cash flow transparency

1. If the borrower is not a commercial bank or foreign bank branch, every money transfer (fund withdrawal or debt repayment) relating to foreign loans must be performed through foreign borrowing and foreign debt repayment accounts of the borrower, unless otherwise stipulated in Article 34 hereof.

2. Money transfer orders between residents and non-residents in relation to implementation of fund withdrawal and repayment of debt (principal and interest), payment of fees for foreign loans must be clarified in terms of money transfer purpose in order for account service providers to have the basis for checking, examining and preserving records and perform transactions.

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 31. Money transfer for effecting of foreign loans

1. With respect to foreign loans subject to registration with the State Bank, the borrower shall be allowed to withdraw funds and repay debts (principal, interest) of foreign loans only after registration for such loans is certified by the State Bank, except for the case of fund withdrawal or payment of a part of principal or interest in the first year of a mid-term or long-term loan.

2. The borrower shall only be allowed to receive disbursed loans and transfer money to pay debts (principal, interest) through the account of the creditor, representative for the creditor or payment bank agents of creditors in the event of a syndicated loan or loan in a loan agreement under which a bank acts as a payment agent.

3. Where fund disbursement and transfer of money for payment of debts (principal, interest) of foreign loans denominated in foreign currency are carried out through the account of the non-resident third party not covered by paragraph 2 of this Article, this content must be clearly defined in loan agreements (or change agreements). If foreign loans are subject to registration with the State Bank, this content must be confirmed in the statement on confirmation of registration or registration for changes of foreign loans.

Article 32. Transfer of money for arrangement of mid-term or long-term foreign loans in the form of deferred payment for import of goods

When carrying out transfer of money for payment of principal or interest of a mid-term or long-term foreign loan in the form of deferred payment for import of goods, the borrower shall be responsible for showing the following documents:

1. Document or records requested by the account service provider.

2. Written commitment of the borrower on compliance with regulations on reporting of foreign borrowing or foreign debt repayment in accordance with provisions set forth in this Circular along with the following evidence documentation:

a) Review report on foreign borrowing for repayment of short-term or mid-term foreign loans that the borrower has made on the websites (directly printed from websites), notification of the website (through the borrower’s email address) regarding the borrower’s online report made on the website (applicable to the borrower that chooses online registration form);

b) Duplicate reports which have been sent to the State Bank in the latest reporting stage prior to the payment date (applicable to the borrower that chooses conventional registration form).

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 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 fund 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 fund withdrawal or debt repayment is not carried out through foreign borrowing and foreign debt repayment accounts

1. Cases in which fund withdrawal is not carried out through foreign borrowing and foreign debt repayment accounts include:

a) Withdrawing funds from the borrower to directly pay the non-resident beneficiary providing goods or services under goods or services sale and purchase contracts with residents;

b) Withdrawing funds in the form of deferred payment for import of goods from the borrower;

c) Withdrawing foreign loan funds in the form of finance lease;

d) Withdrawing funds through the account that the borrower opens abroad in case the borrower is allowed to open accounts abroad for effecting of foreign loans;

dd) Withdrawing funds from mid-term, long-term foreign loans through settling or clearing against direct payment obligations to the creditor.

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 by means of shares or contributed capital of the borrower in compliance with laws and regulations;

c) Paying debts incurred from mid-term or long-term loans through settling or clearing against direct receivables with the borrower;

d) Paying debts through the account that the borrower opens abroad (in case the borrower is allowed to open accounts abroad for effecting of foreign loans).

Chapter V

REGULATIONS ON FOREIGN EXCHANGE ADMINISTRATION REGARDING FOREIGN LOAN GUARANTEE

Article 35. Implementation of guarantee obligations

1. As for guaranteed foreign loans, the guarantor shall implement 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.

2. Where the guarantor uses payment accounts opened at an account service provider for transferring money to implement guarantee obligations, the guarantor’s account service provider shall carry out transfer of guarantee transfer based on the following documents or records:

a) Foreign loan agreement;

b) Written guarantee commitment;

c) Written request for implementation of guarantee obligations made by the creditor (the oblige) or the borrower (the obligor) in compliance with foreign loan agreements and guarantee commitments;

d) Written confirmation issued by the borrower’s account service provider stating that the borrower has yet to implement payment obligations to the creditor in accordance with the written request for implementation of guarantee obligations referred to in subparagraph c paragraph 2 of this Article;

dd) Written confirmation of registration or registration for changes of foreign loans issued by the State Bank, identifying the guarantor of foreign loans (applicable to the case in which foreign loans are subject to registration with the State Bank);

e) Other documents or records (if any) under the provisions laid down by the account service provider with the help of which the guarantor performs guarantee money transactions.

Article 36. Compulsory indebtedness amount

1. Compulsory indebtedness amount refers to debts that the obligor (the borrower) must repay the guarantor after the guarantor’s fulfillment of its guarantee obligations by means of payments to the obligee (the creditor).

2. Agreement on currency used for indebtedness and payment for compulsory indebtedness amounts within a territory (including guarantee fees) must be consistent with regulations on restrictions on use of foreign exchange on a territory.

Article 37. Reimbursement of compulsory indebtedness amounts

1. The borrower (the obligor) shall carry out reimbursement of compulsory indebtedness amounts to the guarantor on the basis of presenting the followings to the borrower’s service account provider:

a) Foreign loan agreement and other documents relating to foreign borrowing and foreign debt repayment transactions;

b) Agreement on guarantee, implementation of guarantee obligations and reimbursement of compulsory indebtedness amounts agreed upon between the borrower and the guarantor;

c) Proof of the guarantor’s fulfillment of guarantee obligations;

d) Other document or records (if any) according to regulations of the account service provider.

2. Reimbursement of the compulsory indebtedness amount to the guarantor must be carried out through foreign borrowing and foreign debt repayment accounts, or through other accounts opened at the account service provider of the borrower in the event that currency used for paying the compulsory indebtedness amount is different from currency used in foreign borrowing and foreign debt repayment accounts.

Chapter VI

STATISTICAL REPORTING REGULATIONS

Article 38. 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 affiliates of the State Bank and authorized credit institutions or foreign bank branches.

Article 39. Reporting regulations applied to the borrower choosing the online registration form

1. On the quarterly basis, no later than the 5^th day of the month immediately after the reporting period, the borrower must prepare an online review report on short-term, mid-term and long-term loans on websites.

2. Within a maximum period of 10 (ten) working days of receipt of online report from the borrower on websites, the State Bank branches must approve such report on websites 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.

Article 40. Reporting regulations applied to the borrower choosing the conventional registration form

1. On the monthly basis, no later than the 5^th day of the month immediately after the reporting period, the borrower must send the review report on short-term, mid-term and long-term loans by completing the form given in Annex 04 to this Circular.

2. Within a maximum period of 10 (ten) working days of receipt of the report from the borrower, the State Bank branch shall input the borrower’s report in the form posted on websites to store information in the database.

Article 41. 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

RESPONSIBILITIES OF INVOLVED PARTIES

Article 42. Responsibilities of borrowers

1. Present documents or records in accordance with laws and upon the request of the account service provider when performing foreign loan transactions; take legal responsibility for providing accurate and authentic information.

2. Implement regulations on declaring information, making reports and maintaining information security in accordance with provisions set forth in this Circular.

3. Take legal responsibility for providing and declaring accurate and authentic information on websites through their log-in accounts, information or documents attached to applications for registration or registration for changes of loans, reports sent to competent authorities.

4. Comply with regulations on administration of foreign borrowing or foreign debt repayment in this Circular and other relevant regulations when signing foreign loan agreements and effecting foreign loans.

Article 43. Responsibilities of the guarantor

The guarantor that uses payment accounts opened at the account service provider of the guarantor to effect guarantee obligations shall assume the following responsibilities:

1. Present documents or records in accordance with laws and upon the request of the guarantor's account service provider.

2. Take legal responsibility for providing and declaring accurate and authentic information.

3. Comply with regulations on administration of foreign exchange and other relevant regulations when giving the borrower guarantee.

Article 44. Responsibilities of the account service provider

1. Provide account services for foreign loan transactions (fund withdrawal, debt repayment, fee payment or those relating to guarantee) 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) issued by competent authorities;

b) Loan agreements and other relevant arrangements;

c) Written proof of fund withdrawal or debt repayment presented by the borrower upon the request of the account service provider.

2. Inspect and check 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.

3. Provide the borrower’s accurate information about foreign loans (including amount of fund 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.

Article 45. Responsibilities of the Foreign Exchange Administration

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;

c) Answering any question about websites; receiving and providing timely guidance, and dealing with any difficulty or requests of users during the process of using and operating such websites;

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 8 hereof.

Article 46. 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 available on websites in accordance with regulations on credit information operations of the State Bank.

3. Cooperate with the Foreign Exchange Administration in implementation of provisions laid down in paragraph 4 Article 45 hereof.

Article 47. Responsibilities of the State Bank branch of the city or province where the borrower’s head office is located

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.

4. 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 48. Responsibilities of Banking Inspection and Supervision Authority

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 49. Effect

1. This Circular shall enter into force from April 15, 2016, exclusive of provisions set forth in paragraph 3 of this Article.

2. From the date of entry into force of this Circular, the following instruments shall become defunct:

a) The Circular No. 09/2004/TT-NHNN dated 21/12/2004 of the State Bank providing guidance on foreign borrowing and foreign debt repayment of enterprises;

b) The Circular No. 25/2014/TT-NHNN dated 15/9/2014 of the State Bank providing guidance on procedures for registration or registration for changes of foreign loans of enterprises which are not guaranteed by the Government.

3. Online reporting regime through websites shall be applied to borrowers who choose the online registration form from the reporting period of 2^nd Quarter 2016. Prior to this reporting period, borrowers mentioned above shall implement written reporting regime defined in Article 40 hereof.

Article 50. Transitional provision

1. As for effecting of foreign loans in the form of deferred payment for import of goods:

a) Mid-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 fund withdrawal or debt repayment) according to statements on confirmation of registration or registration for changes of foreign loans.

As for any change that may arise after the date of entry into force of this Circular, the borrower shall effect foreign loans under arrangements with the creditor and shall not be required to apply for registration for changes of such foreign loans with the State Bank.

b) As for mid-term or long-term foreign loans arranged in the form of deferred payment for import of goods under contracts signed within 30 (thirty) days prior to the date of entry into force of this Circular, the borrower shall not need to apply for registration for such foreign loans with the State Bank. Fund withdrawal and transfer of money for the purpose of debt repayment along with reporting requirements shall be consistent with provisions laid down in this Circular.

2. As for foreign loans denominated in Vietnam dong:

Foreign loans denominated in Vietnam dong of which registration or registration for changes is confirmed ahead of the date of entry into force of this Circular 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. Any change to these foreign loans that arises after the date of entry into force of this Circular must comply with provisions laid down in this Circular.

3. As for effecting of short-term foreign loans:

a) Short-term foreign loans which have been effected (fund withdrawal or debt repayment) prior to the date of entry into force of this Circular shall be continued through current accounts;

b) Short-term foreign loans which are newly signed from the date of entry into force of this Circular must comply with regulations on opening and use of foreign borrowing and debt repayment accounts laid down in this Circular.

Article 51. Implementation

Head of Office, Director of Foreign Exchange Administration, Head of affiliates of the State Bank, Director of the State Bank branch of centrally-affiliated cities and provinces, President of the Management Board, President of the Members Board, and General Director (Director) of credit institutions or foreign bank branches or enterprises, shall be responsible for enforcing this Circular.

Annex 1

APPLICATION FOR REGISTRATION OF FOREIGN LOANS WHICH ARE NOT GUARANTEED BY THE GOVERNMENT

Dear The State Bank of Vietnam¹(_ _ _ _ _ _ _ _ _ _ _)

- 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 Circular No. 12/2014/TT-NHNN of the State Bank of Vietnam dated March 31, 2014 providing for conditions for foreign borrowing of enterprises which is not guaranteed by the Government;

- Pursuant to the Circular No. 03/2016/TT-NHNN of the State Bank of Vietnam dated February 26, 2016 setting out several instructions on foreign exchange administration in respect of foreign borrowing and foreign debt repayment of enterprises;

- Subject to the foreign borrowing agreement signed with the foreign creditor (creditors) on………..;

The borrower hereby registers foreign long and mid-term loans with the State Bank of Vietnam as follows:

THE FIRST SECTION: INFORMATION ABOUT PARTIES CONCERNED

I. Information about the borrower:

1. The borrower’s name: ……………………………

2. Business type of the borrower²:

3. Address

4. Telephone:………………Fax:………………………Tax Identification code:……………….

5. Authorized representative’s full name:…………………………………………………..

Title:……………………………………..

6. Legal document³:

7. The borrower’s legitimate scope of activity:

8. Total investment of the loan-financed project (applicable to foreign loans for the purpose of execution of investment projects) is ………………, of which total participation makes up..................., and total borrowing capital makes up…………..(converted into USD)

9. The amount of outstanding credit debt recorded at the date of submission of registration application (converted into USD):

- Outstanding debt incurred from the short-term foreign loan:……………..  (of which the overdue debt makes up……………….)

- Outstanding debt incurred from the short-term domestic loan:……………..(of which the overdue debt makes up…………….)

- Outstanding debt incurred from the long and mid-term foreign loan:……………..  (of which the overdue debt makes up……………….)

- Outstanding debt incurred from the long and mid-term domestic loan:……………..  (of which the overdue debt makes up……………….)

The number of long and mid-term foreign loans of the enterprise (those which are currently made or have outstanding debts as of the reporting date):  Loan

II. Information about the creditor⁵:

1. Name of the creditor (or the creditor’s representative)⁶:………………………………………

2. Country of the creditor (or the creditor’s representative):………………………………………

3. Business type of the creditor (or the creditor’s representative)⁷:………………………………………

III. Information about other Parties concerned:

1. The guarantor:

1.1. Name of the guaranteeing agency:………………………….

1.2. Country of the guarantor:……………………………………

2. The insurer:

2.1. Name of the insurance agency:………………………….

2.2. Country of the insurer:……………………………………

3. The account service provider:

3.1. Name of the account service provider:…………………………………….

3.2. Address of the account service provider:…………………………………….

3.3. Information about the account for foreign borrowing and foreign debt repayment opened at the account service provider⁸:……

4. Other parties concerned (specifying full name, address of parties in relation to loans if appropriate)……

THE SECOND SECTION: INFORMATION ABOUT BORROWING PURPOSES

1. Borrowing purpose⁹:………………………..

2. Name of the project using the loan (if applicable):………………………………..

3. Evidence of legality of the borrowing purpose (written approval of the project, investment registration certificate, written approval of business plan…)

3.1. Name of evidence or documents:………………………….

3.2. Level of authority over such approval:...........................................

4. Locality where the loan is used:………………………………….

THE THIRD SECTION: INFORMATION ABOUT THE LOAN:

1. Date of conclusion of the foreign borrowing agreement:…………………………….

2. Date of entry into force of the foreign borrowing agreement¹⁰:…………………………….

3. Value of the loan:

- In numbers:

- In words:

4. Currency unit used for making the loan:

4.1. Currency unit for indebtedness:………………………….

4.2. Currency unit for fund withdrawal:………………………….

4.3. Currency unit for debt repayment:………………………….

5. Borrowing method ¹¹:…………………………….

6. Debt repayment method ¹²:…………………………….

7. Maturity period:…………………….(including the grace period:……………………….)

8. Interest rate:

8.1. Fixed interest rate:………………………………………….

8.2. Floating interest rate¹³:………………………………………….

9. Costs¹⁴:………………………………………………………………

10. Penalty interest:…………………………………

11. Borrowing expenses¹⁵:…………………………………..%/year

12. Security type (pledge, lien, deposit, mortgage...):............................

13. Fund withdrawal plan¹⁶:……………………………………..

14. Debt repayment plan:

14.1. Principal repayment plan¹⁷:……………………………………..

14.2. Interest repayment plan¹⁸:……………………………………..

15. Other conditions (if applicable):………………………………….

*Note: Please specify reference provisions in the borrowing agreement in respect of specific parts of this section.

16. Plan to use foreign currency from the borrowing source (not applied to VND loans):¹⁹

(i) Percentage of value of the foreign currency loan disbursement intended to be sold to authorized credit institutions: %

(ii) Purpose of use of the remaining amount of foreign currency (in the case that the percentage referred to in 16(i) is less than 100%):

17. Proposed purchase of foreign currency for the purpose of debt repayment from authorized credit institutions:…………….% of loan value

18. Other demonstration (if relevant):

THE FOURTH SECTION: COMMITMENT

1. The undersigned (legal representative of the borrower) hereby undertakes to assume responsibilities for accuracy of all information declared in this application and attached documents in the borrower's foreign loan registration application.

2. [Name of the borrower] is committed to complying with Vietnamese laws and regulations set forth in the Government's Decree No. 219/2013/ND-CP dated December 26, 2013 on administration of foreign borrowing and foreign debt repayment of enterprises which are not guaranteed by the Government; the Circular No. 12/2014/TT-NHNN of the State Bank of Vietnam dated March 31, 2014 providing for Conditions for foreign borrowing of enterprises which are not guaranteed by the Government and other relevant legislative documents. 

Several instructions on the application for registration of foreign loans which are not guaranteed by the Government

_______________

¹ Clearly write the Foreign Exchange Administration or the State Bank branch of a centrally-affiliated city and province (in accordance with delegated authority referred to in Article 18 hereof) as a recipient.

² Write the business type of the borrower according to the following groups:

- Enterprise group (excluding commercial banks):

+ State-owned enterprise group: Enterprises of which 100% of their charter capital is held by the State (SOE); Enterprises of which 50% - 100% of their charter capital is held by the State (S50).

+ Foreign-invested enterprise group: Enterprises of which 51% - 100% of their charter capital is owned by foreign investors (F51); Enterprises which have 10% - under 51% of foreign participation (F10).

+ Other enterprise groups: cooperatives, cooperative alliances and other enterprises.

- Commercial bank or foreign bank branch group:

+ Foreign-invested commercial bank group: Joint-venture banks, wholly foreign-invested commercial banks; foreign bank branches (FOB).

+ Other commercial bank group: BAK.

³ Clearly write specific type of legal document; number, date of issue, issuing agency and amendment or modification (if appropriate).  Legal documents required vary depending on specific borrowers, including establishment decision, establishment permit, business registration certificate, enterprise registration certificate, investment certificate, investment registration certificate, registration certificate for cooperative or cooperative alliance of the borrower and enterprise in which the borrower has made direct participations (in the event that the borrower has made foreign borrowing for the purpose of execution of production, business plans and investment projects using foreign loans of enterprises that the borrower has made its direct participations) in accordance with laws.  

⁴ Only list down business sectors available on the business registration certificate, establishment permit, company charter, etc. concerning projects or plans for production and business activities financed by foreign loans. 

⁵ Where there is no representative of creditors giving the syndicated loan, clearly write relevant information about each creditors and note down who is the majority creditor.   Where there are representatives of creditors giving the syndicated loan, write information about the representatives of creditors.

Where the loan is made in the form of issuance of anonymous debt instruments, information about the creditor must be replaced by the information about the issuance agency.

⁶ Accurately write the creditor according to lending agreements/ Credit contract

⁷ Write the business type of the creditor according to the following groups:

+ Parent company, member company of parent company

+ Credit institution, international financial organization.

+ Others

⁸ Clearly provide information about the account for foreign borrowing and debt repayment opened at authorized credit institutions: the number of accounts in use and specific account numbers.

Where the borrower is a directly foreign-invested enterprise, such account is the account for foreign direct investment of the borrower. 

⁹ Clearly specify purpose of use of foreign loans, including on-lending, execution of investment projects, implementation of business and production plan, re-structuring of foreign debt, purchase of machinery or devices, etc.

¹⁰ Where a VND foreign loan is subject to the approval obtained from the Governor of the State Bank, the foreign borrowing agreement shall be fully in force only after such loan is approved and its registration is confirmed by the State Bank.

¹¹ Borrowing method:

+ Monetary borrowing: including direct monetary borrowing or through an entrustment contract with the entrusting party is non-resident 

+ Borrowing made through issuance of debt instruments (excluding international bonds)

+ Borrowing made through the finance lease

¹² Debt repayment method: clearly define repayment of debt by monetary sums or by goods, shares, etc.

¹³ Clearly write selected interest rate (fixed or floating interest rate; as regards floating interest rate: clearly specify base or margin interest rate); calculation method (simple or compound interest), date of commencement of interest calculation.

¹⁴ Clearly write name and calculation method of fees of different types such as guarantee fee, insurance fee, management fee, prematurity repayment fee, commitment fee and others.

¹⁵ Enterprise should calculate estimated borrowing expenses for the loan made at the date of submission of application for registration of such loan. Foreign borrowing expense is total expenditure converted by annual proportion thereof to loan turnover, including foreign borrowing interest rate and other expenses relating to foreign loans that the borrower is bound to repay to the creditor, guarantor, insurer and other agency or party concerned.

¹⁶ Fund withdrawal plan should correspond to the borrowing agreement. Where the borrowing agreement has not had terms and conditions of specific fund withdrawal plan, subject to the business plan and capital demand of the borrower which are relevant to the borrowing agreement, the borrower shall take initiative in drawing up the detailed fund withdrawal plan on a monthly, quarterly, six-monthly or yearly basis. 

¹⁷ Debt repayment plan should correspond to the borrowing agreement. Where the borrowing agreement has not agreed on detailed debt repayment plan, within the scope of commitments made in the borrowing contract, proposed business and the borrower’s competence in financing for debt repayment, the borrower shall write in details the debt repayment plan on a monthly, quarterly, six-monthly or yearly basis. 

¹⁸ Clearly write interest payment term and time of commencement of interest payment.

¹⁹ Enterprise shall estimate the proposed amount of borrowed foreign currency fund used, including  percentage of value of the loan sold to authorized credit institutions to get VND for domestic purposes (including the portion of the loan intended to be sold in the future).    As regards the portion of foreign currency not sold to credit institutions, the enterprise is required to clearly determine the purposes for which the foreign currency borrowed capital is used, such as goods import payment, payment to foreign contractors, foreign currency debt repayment, etc. 

Annex 2

Dear …………………………….,

In response to the request of …………(name of the enterprise) in the application for registration of foreign loan No.....dated........ along with relevant documents, the State Bank of Vietnam has the following opinions:

1/ Confirming that (name of the enterprise) has successfully registered its foreign loan with the State Bank under applicable laws and regulations on administration of foreign borrowing and foreign debt repayment and other relevant legislative documents.

Code of the foreign loan isⁱ:………………

2/Several main elements of the foreign loan registered by the borrower with the State Bank:

2.1/ The borrower: Name; address

2.2/ The creditorⁱⁱ: Name, country of the creditor

2.3/ The guarantor: Name, country of the guarantor

2.4/ Other parties concerned (if applicable): (Payment agency, Security Asset Reception Agency, etc.)

2.5/Several main elements of the loan:

- Date of signature of the borrowing contract:

- Borrowing purpose:

- Loan turnover:

- Borrowing method:

- Currency unit for indebtedness, fund withdrawal and debt repayment:

- Borrowing term:

- Other security:

- Borrowing interest rate:

- Penalty interest:

- Fees:

- Fund withdrawal plan:

- Principal repayment plan:

- Interest payment plan:

- Other related contents (if applicable):

3/ Loan made through the account for foreign borrowing and foreign debt repayment in [currency type] opened at the Bank…………..

While supplying such account services for foreign loans of (the enterprise’s name), the Bank…… should assume responsibilities as those delegated to a commercial bank under the provisions of the State Bank that provide instructions on foreign borrowing and foreign debt repayment of enterprises and other relevant legislative documents.

4/ (Name of the enterprise) shall take its own legal responsibilities for entering into and executing foreign borrowing contracts in a conventional manner.  The State Bank shall not bear any legal or financial responsibilities, except for those for confirming that (name of the enterprise) has successfully registered the foreign loan including several main elements referred to herein.

5/ Other related contents (if applicable)

6/ The State Bank requests (name of the enterprise):

6.1/ to strictly comply with regulations on administration of foreign borrowing and foreign debt repayment; administration of foreign exchange and other relevant laws and regulations.

6.2/ to conform to contents agreed in the signed foreign borrowing agreement and other arrangements relating to the loan which is not inconsistent with Vietnamese laws and regulations.

6.3/ to make reports under applicable regulations on report on foreign borrowing and debt repayment of enterprises.

7/ In the event of committing any violation against regulations on administration of foreign borrowing and foreign debt repayment, subject to the severity of such violation, (name of the enterprise) shall be subject to any sanction in accordance with applicable regulations on penalties for administrative violations in the currency and banking sector.

The State Bank of Vietnam hereby informs (name of the enterprise) of this so that it can act accordingly.

_______________

ⁱ The loan code is used after the website is brought into operation

ⁱⁱ The creditor (in respect of foreign bilateral loans, syndicated foreign loans made through no representative of the creditor) or representative of the creditor (in respect of foreign syndicated loans made through representative of the creditor) and other parties related to foreign loans.

Annex 3

 APPLICATION FORM FOR REGISTRATION OF CHANGE OF FOREIGN LOANS WHICH ARE NOT GUARANTEED BY THE GOVERNMENT

Dear the State Bank of Vietnam¹

- 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 Circular No. 12/2014/TT-NHNN of the State Bank of Vietnam dated March 31, 2014 providing for conditions for foreign borrowing of enterprises which is not guaranteed by the Government;

- Pursuant to the Circular No. 03/2016/TT-NHNN of the State Bank of Vietnam dated February 26, 2016 setting out several instructions on foreign exchange administration in respect of foreign borrowing and foreign debt repayment of enterprises;

- Subject to the foreign borrowing agreement signed with the foreign creditor (creditors) on………..;

- Subject to the amended foreign borrowing agreement signed with the foreign creditor (creditors) on………..(if applicable);

The borrower named below registers change of several elements of the foreign loan with the State Bank of Vietnam as follows:

I. THE BORROWER:

1. The borrower’s name:……………………………

2. Number and date of the written confirmation of registration of the foreign loan issued by the State Bank of Vietnam; 

3. Number and date of the written confirmation(s) of change of the foreign loan issued by the State Bank of Vietnam (list down all of the written confirmations thereof in chronological order if appropriate);

II. ELEMENTS SUBJECT TO CHANGE:

1. Change 1² ……………………………..:

- Current contents:……………………………

- Contents subject to change:…………………….

Reasons for making changes:…………………….

2. Change n ³:……….

*Note: Please specify reference provisions in the change agreement in respect of specific elements subject to changes (if applicable).

III. EXPLANATORY STATEMENTS REQUIRED IN THE ABSENCE OF THE CHANGE AGREEMENT AND/OR OPINIONS RAISED BY THE GUARANTOR ON ELEMENTS SUBJECT TO CHANGES⁴

…………………………………

IV. RECOMMENDATION:

[Name of the borrower) requests the State Bank to confirm that [name of the enterprise] has registered changes of certain elements of the foreign loan with the State Bank.

V. COMMITMENT

1. The undersigned (legal representative of the borrower) hereby undertakes to assume responsibilities for accuracy of all information declared in this application and attached documents in the borrower's application for registration of change of foreign loan.

2. [Name of the borrower] is committed to complying with Vietnamese laws and regulations set forth in the Government's Decree No. 219/2013/ND-CP dated December 26, 2013 on administration of foreign borrowing and foreign debt repayment of enterprises which are not guaranteed by the Government; the Circular No. 12/2014/TT-NHNN of the State Bank of Vietnam dated March 31, 2014 providing for Conditions for foreign borrowing of enterprises which are not guaranteed by the Government; the Circular No. 03/2016/TT-NHNN of the State Bank of Vietnam dated February 26, 2016 providing several instructions on administration of foreign exchange in respect of foreign borrowing and foreign debt repayment of enterprises, and other relevant legislative documents. 

Several instructions on the application for registration of change of foreign loans which are not guaranteed by the Government

_______________

¹ Clearly write the Foreign Exchange Administration or the State Bank branch of a centrally-affiliated city and province

² Clearly write elements subject to changes. For instance,

1. Change of the borrower: …………………………….:

- Current borrower:………………………….

- New borrower:………………………….

Where there is any change to the fund withdrawal plan, debt repayment plan though the borrowing agreement does not specify that they are not subject to any change, subject to the business plan and fund demand of the borrower which are relevant to the borrowing agreement, the borrower shall take initiative in writing the fund withdrawal plan, proposed detailed debt repayment plan on a monthly, quarterly, six-monthly or yearly basis. 

³ Where there are various elements subject to changes, the borrower should clearly write down specific contents subject to changes in the same manner as referred to in the abovementioned instructions.

⁴ Where there is any agreement on changes and/or opinions given by the guarantor on changed contents, the borrower shall keep this blank and clearly write down reference to the change agreement and/or opinions of the guarantor in the section of reasons for changes of specific contents subject to changes in the Section II.

In the absence of any change agreement and/or opinions of the guarantor on changed contents, the borrower must give explanatory statements on the absence of these documents.

Annex 4A

REVIEW REPORT ON FOREIGN BORROWING, REPAYMENT OF SHORT-TERM FOREIGN LOANS NOT GUARANTEED BY THE GOVERNMENT   

(Quarter.....year.....)

In unit: thousand of USD

Note: (*) Please specify the reasons for making changes in the Column 7 and contents (if applicable)..........................................................................................

Instructions on preparation of reports

1. Applicable entities: Resident enterprises, cooperatives, cooperative alliances, credit institutions, and foreign bank branches, established and operated within Vietnam, shall prepare detailed reports on making of short-term foreign loans not guaranteed by the Government and having outstanding debts incurred during the reporting period.