Chapter V
REGULATIONS ON FOREIGN EXCHANGE ADMINISTRATION REGARDING SECURITY OF CONVENTIONAL LOANS
Article 35. Performance of guarantee obligations
1. As for guaranteed foreign loans, the guarantor shall perform guarantee obligations to the foreign creditor (the obligee) as requested under commitments of the loan agreement, written guarantee commitments (letter of guarantee, guarantee contract or other guarantee commitments) which have been reached between parties involved, not contrary to applicable laws.
2. The guarantor is a resident who transfers money to fulfill the guarantee obligations through a bank providing secured transactions (except for the case specified in Clause 3 of this Article).
3. In case the guarantor is a credit institution or foreign bank branch in Vietnam, the guarantee money transfer is not required to do through the bank providing secured transactions. Credit institutions, foreign bank branches in Vietnam that provide guarantees for foreign loans are responsible for complying with the provisions of law on bank guarantees and notifying the account service provider about the guarantee amount provided.
Article 36. Performance of security obligations in the form of collateralized security
1. When a collateralized security obligation arises for a foreign loan, the grantor shall perform the security obligation in accordance with the commitments in the loan agreement and the guarantee agreements which are not contrary to Vietnamese law on secured transactions and other relevant laws.
2. The transfer of the proceeds after realizing the collateral in the Vietnamese territory to the creditor or the creditor's representative to perform the obligation to secure the property (hereinafter referred to as the "money transfer to perform collateralized security obligation”) must be done through 01 bank providing secured transactions as prescribed in this Circular.
3. In case of realization of collateral in the form that the secured party receives the collateral itself to replace the performance of the obligation, the borrower is responsible for notifying the account service provider of information about the debt obligation that has been paid in the form that the secured party receives the collateral itself to replace the performance of the obligation.
Article 37. Bank providing secured transactions
1. Money transfer for performance of security obligations (including money transfer for performance of guarantee obligations and money transfer for performance of collateralized security obligations) must be done through 01 bank providing secured transactions, except for the cases specified in Clause 3, Article 36 of this Circular.
2. In case the bank providing secured transactions is also the bank providing account services of foreign loans, this bank is responsible for checking and keeping relevant documents in accordance with the provisions of this Circular when transferring money to perform security obligations as prescribed in this Circular.
3. In case the bank providing secured transactions is not a bank providing account services of foreign loans, when transferring money to perform security obligations, the bank shall have the following responsibilities:
a) Examine and keep documents and transfer money on the basis of documents mentioned in Clause 4 of this Article;
b) Within 07 working days from the date of money transfer to perform the security obligation, notify and send to the account service provider the documents proving the debt amount (principal, interest, fee) paid to the creditor through the performance of security obligations for the account service provider to monitor, determine the outstanding balance of principal, interest, and fees of the loan and serve as a basis for the transfer of funds to repay the indebtedness amount between the borrower and the grantor as prescribed in this Circular.
4. Documents for the authorized bank providing secured transactions to transfer money to perform the security obligation for the foreign loan, including:
a) Foreign loan agreement;
b) Agreements on guarantee, collateralized security related to foreign loans;
c) A written request for performance of security obligations from the creditor (or the creditor’s representative or the creditor’s representative to realize the collateral) according to the agreement of the parties to the guarantee; realization of collateral, specifying the payment obligations that the borrower is unable to perform the obligations under the loan agreement;
d) A written certification of the borrower's account service provider on the withdrawal of loan proceeds and loan repayment up to the time of request for money transfer to perform security obligations;
dd) Written confirmation of registration or registration for changes of foreign loans issued by the State Bank, identifying the security interests for foreign loans (applicable to the case in which foreign loans are subject to registration with the State Bank);
e) Other documents (if any) as prescribed by the bank providing secured transactions.
5. The borrower is responsible for notifying the grantor of the bank providing account services, the bank providing secured transactions and fully declaring information about these banks when registering and registering the change of foreign loan (in case the loan is subject to foreign loan registration as prescribed in this Circular).
Article 38. Indebtedness amount between the borrower and the grantor
1. Indebtedness amount (if any) between the borrower and the grantor is a debt that the borrower is obliged to repay to the grantor after the grantor has performed the security obligation under agreements between the borrower, the grantor, the creditor in relation to the foreign loan (hereinafter referred to as the “indebtedness amount”).
2. The maximum indebtedness amount does not exceed an amount equivalent to the debt obligation under the foreign loan agreement that has been done through the performance of security interests.
3. In case the borrower and the grantor being resident have an agreement on interest and fees for the indebtedness amount, the agreement details on the interest and fees for the indebtedness amount must be consistent with current regulations of the Civil Code.
4. In case the borrower and the grantor being non-resident have an agreement on interest and fees on the indebtedness amount, the total amount of interest and fees paid by the borrower to the grantor, converted into an annual percentage on the total indebtedness amount that does not exceed the interest rate applicable to the late payment loan amount specified in the foreign loan agreement with security interests.
5. Agreement on currency used for indebtedness amount and currency used for payment for indebtedness amounts within a territory must be consistent with regulations on restrictions on use of foreign exchange in the territory of Vietnam.
Article 39. Reimbursement of indebtedness amounts
1. The borrower shall carry out reimbursement of indebtedness amounts to the grantor on the basis of presenting the followings to the service account provider:
a) Foreign loan agreement and other documents on security relating to foreign loans;
b) Agreement of parties on reimbursement of indebtedness amount from the borrower to the grantor;
c) Documentation supporting that the grantor has performed security obligations related to the foreign loan (copies of money transfer document proving that the guarantor has acted on behalf of the borrower to repay debts, document proving that the amount for performance of security obligations has been transferred to the bank providing security transactions, document proving that the collateral has been handed over to perform the obligations);
d) Other document or records (if any) according to regulations of the account service provider.
2. Reimbursement of the indebtedness amount to the grantor must be carried out through foreign loan accounts. In the event that the currency for payment of the indebtedness amount is different with the currency of the foreign loan account, the borrower may do the reimbursement via another account opened at the borrower’s account service provider.
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Thông tư 12/2022/TT-NHNN (Bản Word)
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