CIRCULAR

GUIDANCE ON PROCEDURES FOR REGISTRATION, REGISTRATION FOR CHANGE IN FOREIGN LOAN OF BUSINESSES THAT NOT GUARANTEED BY THE GOVERNMENT

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 Standing Committee of the National Assembly dated December 13, 2005 and Ordinance No. 06/2013 / PL-UBTVQH13 dated March 18, 2013, amending and supplementing a number of articles of the Ordinance on Foreign Exchange;

Pursuant to Decree No. 99/2012 / ND-CP dated November 15, 2012 of the Government on assigned and decentralized implementation of the rights, responsibilities and obligations of state owner for state-owned businesses and state capital invested in businesses;

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

Pursuant to Decree No. 219/2013 / ND-CP dated December 26, 2013 of the Government on management of borrowing and repayment of foreign debts of the businesses that are not guaranteed by the Government;

At the request of Director of Foreign Exchange Management Department;

The Governor of the State Bank of Vietnam issues this Circular guiding the procedures for registration, registration for change in foreign loan of businesses that not guaranteed by the government.

Chapter I

GENERAL REGULATION

Article 1. Scope

1. This Circular regulates the procedures for registration, registration for change and regulation on statistic report applied to foreign loans that are not guaranteed by the Government.

2. The registration, registration for change in foreign loans of commercial banks as state-owned businesses, the foreign loans in the form of issuance of international bonds not guaranteed by the Government will comply with the specific regulations of the State Bank of Vietnam (hereafter referred to as State bank)

3. The non-residents buy debt instruments issued by residents in the territory of Vietnam will comply with current regulations of law on indirect investment in Vietnam.

Article 2. Subjects of application

1. Residents are enterprises, cooperatives, unions of cooperatives and credit institutions (excluding commercial banks as state-owned businesses) and foreign bank branches established and operating business activities in Vietnam as foreign borrowers not guaranteed by the Government (hereinafter referred to as the Borrower).

2. Organizations and individuals related to the foreign borrowing of the Borrower).

Article 3. Foreign loans not guaranteed by the Government must be registered

Foreign loans not guaranteed by the Government (hereafter referred to as foreign loan) are subject to registration with the State Bank, including:

1. Medium and long-term foreign loans

2. Short-term foreign loans are extended but the total duration of the loans is over 01 (one) year.

3. Short-term foreign loans without extension contract but with outstanding debt at the time of 01 (one) round year from the date of first withdrawal of capital, except when the Borrower finishes its repayment of loan within 10 (ten) days from the time of 01 (one) round year from the date of first withdrawal of capital.

Article 4. Foreign loan agreement for registration of foreign loans

1. Foreign loan agreement for registration of foreign loans (hereafter referred to as foreign loan agreement) are agreements with effective capital withdrawal signed between the Borrower and Lender as non-resident resulted in the Borrower’s arising repayment obligation or debt instruments issued by the residents to non-residents.

2. The Borrower does not have to carry out the procedures for registration of foreign loans when signing agreements without effective capital withdrawal with the non-residents such as framework credit agreement, memorandum and other similar agreements (hereafter referred to as framework agreement) except for the cases specified in Clause 3 of this Article. The contents of framework agreement must not be in contradiction with regulations of Vietnam’s laws.

3. In case of the Borrower’s medium and long-term foreign loans arising due to a written agreement of capital withdrawal on the basis of framework agreement, the Borrower will conduct the registration of loans in accordance with the provisions in this Circular.

Article 5. Loan duration to determine registration obligation

1. For loans specified in Clause 1, Article 3 of this Circular, the loan duration is determined from the first expected date of capital withdrawal to the last expected date of repayment of debt on the basis of regulations in the foreign loan agreement.

2. For loans specified in Clause 2, Article 3 of this Circular, the loan duration is determined from the first date of capital withdrawal to the last expected date of repayment of debt on the basis of regulations in the foreign loan agreement and extension agreement of foreign loans.

3. For loans specified in Clause 3, Article 3 of this Circular, the loan duration is determined from the first date of capital withdrawal to the last expected date of repayment of debt.

4. Date of capital withdrawal specified in this Article is the reimbursement date for foreign loans reimbursed in cash, date of clearance of goods for foreign loans in the form of imported goods of deferred payment and financial leasing in accordance with the provisions of relevant laws.

Article 6. Subjects of registration and registration for change in foreign loans

The Borrower conducts the registration and registration for change in foreign loans including:

1. The Borrower signs the foreign loan agreement with direct reimbursement in cash with the Borrower as a non-resident.

2. Credit institutions and foreign bank branches receive the entrusted loans from the entrustor as a non-resident.

3. Party is obliged to pay debt under the debt instrument issued to the non-resident.

4. Borrower in the financial leasing contract with the non-resident.

5. Importer of goods of deferred payment.

Chapter II

PROCEDURES FOR REGISTRATION OF FOREIGN LOANS

Article 7. Order to conduct procedures for registration of foreign loans

1. The Borrower sends dossier for registration of foreign loans under the provisions in this Circular by post or submits directly at the organ certifying the registration of loan under the authority specified in Article 13 of this Circular within thirty (30) days from:

a) The date of signing medium and long-term foreign loan agreement or the date of signing the written guarantee in case of guaranteed loans or the date of signing the capital withdrawal agreement in writing in case the parties have agreed to withdraw capital on the basis of framework agreement and before capital withdrawal;

b) The date of signing extension agreement of short-term foreign loan into medium and long-term foreign loan under the provisions in Clause 2, Article 3 of this Circular;

c) The date of one (01) round year from the first date of capital withdrawal for foreign loans specified in Clause 3, Article 3 of this Circular.

2. The State Bank issues the written certification of registration of foreign loans within:

a) Twenty (20) days from the date of receiving valid and complete dossier of the Borrower, or

b) Sixty (60) days from the date of receiving valid and complete dossier of the Borrower in case of foreign loans in Vietnam dong and such case must be considered and approved by the Governor of State Bank under the provisions at Point c, Clause 2, Article 7 of Circular No. 12/2014/TT-NHNN dated March 31, 2014 on conditions for foreign loans of businesses not guaranteed by the Government;

c) In case of refusing to certify the registration of foreign loan, the State Bank must give the reasons of refusal in writing.

3. For foreign loans in Vietnam dong which must be permitted under the provisions at Point c, Clause 2, Article 7 of Circular No. 12/2014/TT-NHNN, the procedures for registration of loans are also the procedures to request the consideration and approval for the loans; the written certification of registration of foreign loans is also the written approval for the loans from the Government of State Bank.

Article 8. Dossier for registration of foreign loans, except loans arising from goods import contract on deferred payment

1. Application for registration of foreign loans (form specified in Annex 1 attached to this Circular)

2. Copy (with the Borrower’s certification) of legal dossier of the Borrower and the loan user (in case the Borrower is not the loan user) including: Establishment Permit, Business Registration Certificate, Enterprise Registration Certificate, Investment Certificate or equivalent documents of organization, cooperative and cooperative union registration Certificate as prescribed by law and amended documents (if any).,

3. Copy (with the Borrower’s certification) of document evidencing purpose of borrowing, including:

a) Business and production plans and investment projects using foreign loans approved by the competent authorities under regulations of Investment Law, Enterprise Law and Enterprise Charter, Cooperative Law and Cooperative Charter and other relevant legal normative documents in case of foreign loans to carry out business and production plans and investment projects.

b) Plan for restructuring of foreign loans of the Borrower approved by the competent authorities under regulations of Investment Law, Enterprise Law and Enterprise Charter, Cooperative Law and Cooperative Charter and other relevant legal normative documents in case of foreign loans to carry out the restructuring of foreign loans of the Borrower.

4. Copy and Vietnamese translation (with the Borrower’s certification) of foreign loan agreement and extension agreement of short-term foreign loan into medium and long-term foreign loan (if any) or capital withdrawal agreement in writing attached to framework agreement.

5. Copy (with the Borrower’s certification) of guarantee letter, written guarantee commitment or foreign loan guarantee contract (if any).

6. Copy (with the Borrower’s certification) of document of the competent authorities approving the guidelines, assessment and agreement upon foreign loans under regulations of law on assignment and decentralization to exercise the rights, responsibilities and duties of state owner for state-owned businesses and state capital invested in businesses for the Borrowers as state-owned businesses.

7. Report on compliance with regulations of the State Bank on prudential ratios in banking activities at the end of the month preceding the date of signing foreign loan agreement and documents evidencing the non-compliance of regulations of law on prudential ratios approved by the Prime Minister or the Governor of the State Bank as prescribed by law (if any) for the Borrower as credit institutions and foreign bank branches.

8. Documents of credit institutions and foreign bank branches where the Borrower withdraws and repays debts of foreign loans certify the situation of capital withdrawal and repayment of debts (original and interest) to the time of registration of foreign loans for foreign loans specified in Clause 2 and 3, Article 3 of this Circular and long and medium foreign loans arising in case the capital of foreign investor transferred into Vietnam used to meet the expenditures for investment preparation has been transferred into long and medium foreign loans of businesses with foreign direct investment capital under current relevant regulations of law on foreign direct investment in Vietnam.

9. Documents and vouchers evidencing profits legally divided in Vietnam dong from the direct investment of the Lender as foreign investor contributing capital with the Borrower and certification of credit institutions and foreign bank branches where the Borrower opens account of direct investment capital on division and transfer of profits to the country of the Lender to prove the reimbursement of loan in case of foreign loans in Vietnam dong specified at Point b, Clause 2, Article 7 of Circular No. 12/2014/TT-NHNN.

10. Report on demand for foreign loan in Vietnam dong in case of foreign loans in Vietnam dong that must be approved by the Governor of State Bank as prescribed at Point c, Clause 2, Article 7 of Circular No. 12/2014/TT-NHNN.

Article 9. Dossier for registration of foreign loan arising from the goods import Contract on deferred payment

1. The components of dossier are prescribed in Clauses 1, 2, 4, 5 and 6, Article 8 of this Circular.

2. Copy (with the Borrower’s certification) of documents evidencing that the imported goods have been cleared under regulations of law for foreign loans specified in Clause 2 and 3 of this Circular.

Chapter III

PROCEDURES FOR REGISTERING THE CHANGE IN FOREIGN LOANS

Article 10. Registration for change in foreign loans

1. Excepts for cases specified in Clause 2 of this Article, in case of changing any contents related to the foreign loans mentioned in the written certification of registration of foreign loans of the State Bank (Form in Annex 02 attached to this Circular), the Borrower is responsible for changing the foreign loans with the State Bank under the provisions in this Circular.

2. In case the plan for capital withdrawal, debt repayment and fee transfer has actually changed within 10 days compared with the plan for capital withdrawal, debt repayment and fee transfer previously certified by the State Bank, the Borrower will inform the commercial bank and foreign bank branch where the Borrower has opened account of loan capital and repayment of foreign loan (hereafter referred to as commercial bank providing account services) for capital withdrawal and debt repayment under the changed plan; registration for change in foreign loans is not required with the State Bank.

Article 11. Order for conducting the procedures for registering the change in foreign loans

1. Within thirty (30) days from the date of signing the change agreement and before the effect of the change agreement or before the time of occurrence of the changed contents for the ones that are not required to sign the change agreement and are in accordance with foreign loan agreement, the Borrower will send dossier for registering the change in foreign loans by post or directly submit it at the agency certifying the registration of loans or the agency certifying the first registration for change in loans (in case of having registered the change in loans) for registering the change in foreign loans under the authority specified in Article 13 of this Circular.

2. Within twenty (20) days from the date the competent organ has received complete and valid dossier from the Borrower, the State Bank will issue a written certification of registration for change in foreign loans. In case of refusal of certifying the registration of foreign loans, the State Bank will issue a written response stating the reasons.

Article 12. Dossier for registration for change in foreign loans

1. Application for registering the change in foreign loans (form in Annex No.03 attached to this Circular).

2. Copy and the Vietnamese translation of the signed agreement on change in foreign loans (with the Borrower’s certification) in case the changed contents need the agreement of parties.

3. Copy of consent of the guarantor of foreign loans of the Borrower on the agreement on change in foreign loans in case the Borrower’s foreign loans are guaranteed.

4. Copy (with the Borrower’s certification) of document from the competent bodies under the regulations of law on assignment and decentralization to exercise the rights, responsibility and obligations of state owner for state-owned businesses and state capital invested in businesses on approval for change of foreign loan plan of the Borrower as the state businesses in case of increased loan turnover or extended loan term.

5. The written certification of the commercial bank providing account services on the capital withdrawal, debt repayment (original and interest) to the time of registration for change in foreign loans in case of registration for change in capital withdrawal and debt repayment plan or the provision of account services from the commercial bank.

6. Document of the Borrower clearly explains the changed contents of foreign loans in case of no components of dossier specified in Clause 2 and 3 of this Article.

Chapter IV

CERTIFICATION OF REGISTRATION, CERTIFICATION OF REGISTRATION FOR CHANGE IN FOREIGN LOANS

Article 13. Competence of certification of registration, certification of registration for change in foreign loans

1. The State Bank (foreign exchange management Department) will conduct the certification of registration, certification of registration for change in foreign loans with loan turnover of over ten (10) million USD (or other currencies with equivalent value) and foreign loans in Vietnam dong.

2. The State Bank branches in provinces and centrally run cities where the Borrower’s head office is located will conduct the certification of registration, certification of registration for change in foreign loans with loan turnover of over ten (10) million USD (or other currencies with equivalent value) and foreign loans in Vietnam dong.

3. In case of change in increase or reduction in loan turnover or change of the Borrower’s head office resulted in the change of agency having competence of certification of registration for change in loans, the first agency conducting the certification of registration, certification of registration for change in loans has the following responsibilities:

a) To be in charge of receiving dossier for registering the change in loan of the Borrower;

b) Within seven (07) days after receiving dossier for registering the change in loan of the Borrower, transfers the original dossier to request the registration for change in loans and the copy of dossier for registration or dossier for change registration made on the loans (if any) to the competent authority as prescribed in Clause 1 and 2 of this Article for further settlement.

4. In case the foreign loans in Vietnam dong must be considered and approved by the Governor of State Bank, the foreign exchange management Department will be in charge and coordinate with the units concerned of the State Bank to report to the Governor of State Bank for consideration and decision under authority.

Article 14. Grounds for certification of registration, certification of registration for change in foreign loans

1. The annual total foreign commercial loan turnover with the self borrowing and repayment will be approved by the Prime Minister.

2. The full compliance and satisfaction of regulations on conditions for foreign loans and management of foreign exchange for the borrowing and repayment of foreign loans under the current regulation of the State Bank and other regulations of relevant laws of the Borrower.

3. Information provided by the organizations and agencies concerned at the request of the State Bank in case the State Bank finds that the dossier for registration or registration for change in foreign loans have dishonest contents.

Article 15. Processing of dossier for registration or registration for change in foreign loans in case the Borrower has act of administrative violation in the field of management of foreign exchange, borrowing and repayment of foreign loan

During the processing of dossier for registration or registration for change in foreign loans, if the State Bank finds the Borrower commits acts of administrative violation in the field of management of foreign exchange, borrowing and repayment of foreign loan (including acts of non-compliance with reporting regulations), the consideration for registration or registration for change in foreign loans of the Borrower will be done after completing the handling of administrative violation under the current regulations of law on handling of administrative violation in the field of monetary and banking.

Article 16. Validity of written certification of registration or registration for change in foreign loans

1. The written certification of registration or registration for change in foreign loans of the State Bank will be obviously invalid in case of exceeding the time limit of 06 (six) months from the last day of capital withdrawal period of which the State Bank has certified the registration but the Borrower has not carried out its capital withdrawal and not registered the change in the plan for capital withdrawal of foreign loan under the relevant provisions in this Circular.

2. After the foreign loans have been certified for registration but not been withdrawn, the agency certifying the loan registration under the authority specified in Article 13 of this Circular will issue a document to the Borrower stating the recovery and the reason for recovery of document certifying the registration or registration for change in foreign loans in the following cases:

a) Dossier for registration and registration for change in foreign loans of the Borrower has fraudulent information for adequate conditions to be certified with registration or registration for change in foreign loans.

b) The Borrower and the Parties concerned recorded in written certification of with registration or registration for change in foreign loans are found to have fraudulent acts affecting the performance of foreign loans.

Article 17. Duplicating and sending the written certification of registration or registration for change in foreign loans; written recovery

1. Documents subject to be duplicated and sent to the units concerned include:

a) The written certification of registration or registration for change in foreign loans

b) The document recovers the written certification of registration or registration for change in foreign loans.

2. After certifying the registration or registration for change in foreign loans under the authority and issuing the document to recover the written certification of registration or registration for change in foreign loans (if any). The responsibility for duplication and sending of documents specified in Clause 1 of this Article is defined as follows:

a) The State Bank will duplicate and send document to the commercial bank providing account services for coordinated monitoring and implementation;

b) The State Bank (foreign exchange management Department) will duplicate and send document to the State Bank branches in provinces and centrally-run cities where the Borrower’s head office is located for coordinated management, monitoring and urging of report.

c) Every month, no later than the 10^th date of the following month, the State Bank branches in provinces and centrally-run cities will aggregate, duplicate and send document to the State Bank (foreign exchange management Department) for coordinated management.

Chapter V

STATISTIC AND REPORTING REGULATION

Article 18. Reporting regulation for commercial banks providing account services and the State Bank branches in provinces and centrally-run cities

The commercial banks providing account services and the State Bank branches in provinces and centrally-run cities will carry out the reporting regulations as prescribed by the State Bank on the statistic and reporting regulations applied to the units of the State Bank and credit institutions and foreign bank branches.

Article 19. Reporting regulations for the Borrower

Every quarter, no later than the 5^th date of the following month of the reporting quarter, the Borrower must report the implementation of long, medium and short-term foreign loans not guaranteed by the Government (form No.04 attached to this Circular) to the State Bank branches in provinces and centrally-run cities where the Borrower’s head office is located.

Article 20. Requirement for irregular report

In necessary or irregular cases, the Borrower, the commercial bank providing account services will make reports as required by the State Bank.

Chapter VI

IMPLEMENTATION PROVISION

Article 21. Implementation provision

1. This Circular takes effect from November 01, 2014.

2. Annulling Article 1 of Circular No. 25/2011/TT-NHNN dated August 31, 2011 of the State Bank on implementing the simplification plan for administrative procedures in the field of foreign exchange activities under the Government’s Resolution on simplification of administrative procedures under the scope of management function of the State Bank of Vietnam and Chapter I, Section I, Chapter IV of Circular No. 09/2004/TT-NHNN dated December 21, 2004 guiding the borrowing and repayment of foreign loan of the businesses.

Article 22. Transitional provision

1. The Borrower’s foreign loans made before the effective date of this Circular will be made according to the written certification of registration or registration for change (if any) of the State Bank.

2. For the changed contents related to the Borrower’s foreign loans arising after the effective date of this Circular, the Borrower must carry out the registration for change in foreign loans as prescribe by this Circular.

Article 23. Implementation organization

Chief of Office, Director of foreign exchange management Department, Heads of units under the State Bank, Director of State Bank branches in provinces and centrally-run cities, Chairman of the Board, the member Board, General Director (Director) of credit institutions and foreign bank branches and businesses are liable to execute this Circular.

Appendix 3

REGISTRATION OF CHANGES TO FOREIGN LOANS NOT GUARANTEED BY THE GOVERNMENT

To: The State bank of Vietnam¹

- Pursuant to Decree No. 219/2013/ND-CP dated December 26, 2013 of the Government on management of borrowing and repayment of foreign loans of the businesses not guaranteed by the Government;

- Pursuant to Circular No. 12/2014/TT-NHNN dated March 31, 2014 of the State bank of Vietnam on requirements for taking out foreign loans applied to businesses not guaranteed by the Government;

- Pursuant to Circular No…../2014/TT-NHNN dated ………………, 2014 of the State bank of Vietnam providing guidance on procedures for registration or registration of changes to foreign loans of businesses not guaranteed by the Government;

- Pursuant to Foreign loan agreement with foreign lender dated……………………;

- Pursuant to Adjusted foreign loan agreement with foreign lender dated……………………(if applicable);

The borrower below registers changes to foreign loans with the State bank of Vietnam as follows:

I. BORROWER:

1. Borrower’s name:………………………………..

2. Number and date of written confirmation of the registration of borrowing and repayment of foreign loans issued by the State bank of Vietnam;

3. The number and date of written confirmations of registration of changes to foreign loans issued by the State bank of Vietnam (list of all written confirmations – if applicable);

II. CHANGE CONTENTS:

1. Changes²:…………………………….

- Original plan:…………………………..

- New plan:…………………………..

- Reason for changes:…………………………..

* Notes: Clarify terms of reference to each of change in the Agreement on changes

III. PROPOSAL:

[Borrower’s name] requests the State bank to confirm that the [borrower’s name] has registered changes to foreign loans with the State bank.

IV. COMMITMENT

1. The representative of the borrower whose signature is appended hereto is committed to take responsibility for the accuracy of information stated in the Registration form of changes to foreign loans and documents enclosed thereto.

2. [Borrower’s name] is committed to comply with regulations of law in Vietnam, regulations of Decree No. 219/2013/ND-CP dated December 26, 2013 of the Government on management of borrowing and repayment of foreign loans of the businesses that are not guaranteed by the Government; Circular No. 12/2014/TT-NHNN dated March 31, 2014 of the State bank of Vietnam on requirements for taking out foreign loans applied to the businesses not guaranteed by the Government and other corresponding legislative documents.

Guidance on the Registration of changes to foreign loans not guaranteed by the Government

^{1 ­­}Clarify that the documents are to be sent to Department of foreign exchange management or a Branch of the State bank of the province (as prescribed in Article 13 of this Circular)

² Clarify changed information, i.e.

1. Changes of lender:

- Original lender:…………………………..

- New lender:

- Reason for changes:…………………………..

2. Changes of turnover:…………………………..

- Original turnover:…………………………..

- New turnover:…………………………..

- Reason for changes:…………………………..

…………………………………………………..

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 Circular 12/2014/TT-NHNN Requirements For Taking Foreign Loans Applied To Companies Not Guaranteed By The Government

Decree 219/2013/ND-CP On Management Of Enterprises’ Borrowing Of Foreign Loans And Payment Of Foreign Debts Without Government Guarantee