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.
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