Thông tư 22/2013/TT-NHNN

CIRCULAR

GUIDING PROCEDURES FOR REGISTRATION AND CHANGE REGISTRATION OF FOREIGN LOANS AND ISSUE OF INTERNATIONAL BONDS GUARANTEED BY GOVERNMENT

Pursuant to the Law on the State bank of Vietnam No. 46/2010/QH12 dated June 16, 2010;

Pursuant to the Law on Public Debt Management No. 29/2009/QH12 dated June 17, 2009;

Pursuant to the Ordinance on foreign exchange control No. 28/2005/PL-UBTVQH11 dated December 13, 2005;

Pursuant to the Government's Decree No. 90/2011/ND-CP dated October 14, 2011 on issuance of corporate bonds;

Pursuant to the Government's Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantee;

Pursuant to the Government’s Decree No. 96/2008/ND-CP dated August 26, 2008, defining the functions, tasks, powers and organizational structure of the State bank of Vietnam;

At the proposal of the Director of Department for Foreign Exchange Management;

The Governor of the State bank of Vietnam promulgates Circular guiding procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by Government,

Article 1. Scope of adjustment

This Circular provides procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by Government, the reporting regime applicable to borrowers, issuers of international bonds guaranteed by Government.

Article 2. Subjects of application

Subjects of application of this Circular include:

1. Borrowers, issuers of international bonds guaranteed by Government as prescribed in the Government’s Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantee (hereinafter referred to as borrowers).

2. Organizations and individuals related to execution of procedures for registration and change registration of foreign loans and issue of international bonds guaranteed by Government.

Article 3. Procedures for registration of foreign loans and issue of international bonds guaranteed by Government

1. Dossier of requesting confirmation of registration of foreign loans and issue of international bonds:

a) The application for registration of foreign loans (according to Annex 1A enclosed with this Circular) or application for registration of issue of international bonds (according to Annex 1B enclosed with this Circular);

b) Legal dossier of borrower includes: Copies authenticated from originals of permit or decision on establishment of the borrower, or certificate of register or certificate of investment as prescribed by law and the revising documents (if any);

c) Copy of letter of guarantee of the Ministry of Finance (certified by lawful authorized representative of the borrower);

d) Copy of written approval of competent authorities as prescribed by law for investment projects or the business and production plan using capital mobilized from foreign loans or issue of international bonds;

e) Copies of the following documents in foreign language and translations of such documents in Vietnamese (certified by lawful authorized representative of the borrower for accuracy of copies and translations):

- Contract of foreign borrowing already signed; or

- Contracts related to issue of international bonds (under structure of issuance).

2. Process of confirmation on registration of foreign loans and issue of international bonds:

a) Within thirty (30) days after the day of signing letter of guarantee and before executing the funding withdrawal of foreign loans, issue of international bonds, the borrower shall send, directly or via post office, to the State bank (Department of Foreign Exchange Management) one (01) set of dossier as prescribed in Clause 1 of this Article.

b) Within fifteen (15) days after receiving a full and valid dossier of the borrower, the State bank shall send a written confirmation for registration of foreign loans or issue of international bonds to the borrower. A written confirmation for registration of foreign loans or issue of international bonds made by the State bank includes the following principal contents: The borrower, the lender (for bilateral foreign loans, the foreign syndication loans which not using the representative of lender) or representative of lenders (for foreign syndication loans, issue of international bonds which using representative of lenders, representative of bond holders); agents related to foreign loans, issue of international bonds (if any); basic conditions of foreign loans, issue of international bonds (turn-over of loans, total value of issue of international bonds; purpose of using foreign loans, issue of international bonds; interest rate, interest rate of fine; charge; guarantee form, loan duration; plan on withdrawal of funding, plan on paying principal and interest); the authorized credit institution or foreign banks’ branch where the borrower opens account to withdraw funds and pay the foreign loans, issue of international bonds, and other contents related to foreign loans, issue of international bonds (if any).

In case of refusal for registration confirmation, the State bank shall issue written reply clearly stating reason thereof.

Article 4. Procedures for change registration of foreign loans and issue of international bonds guaranteed by Government

1. In case of arising any change in content related to foreign loans, issue of international bonds stated in the document of the State bank which confirms registration of foreign loans, issue of international bonds, the borrower is responsible for change registration of foreign loans, issue of international bonds with the State bank as prescribed in Clause 2 and Clause 3 of this Article.

2. Dossier of requesting confirmation of change registration of the foreign loans and issue of international bonds:

a) Application for change registration of foreign loans (according to Annex 2A enclosed with this Circular) or application for change registration of issue of international bonds (according to Annex 2B enclosed with this Circular).

b) Copies of the agreements on changes already signed in foreign language and translations of such documents in Vietnamese (certified by lawful authorized representative of the borrower for accuracy of copies and translations) in case where the change contents need be agreed by parties.

c) Copy of letter or Annex adjusting letter of guarantee of the Ministry of Finance (if any).

d) A document of the borrower in which giving clear explanation about the changed content of foreign loans, issue of international bonds (applicable to case of not having documents in dossier stated in point b and point c of this clause).

3. Process of confirmation on change registration of the foreign loans and issue of international bonds:

a) Within thirty (30) days after signing agreements of change or the Ministry of Finance has issued a letter, Annex adjusting letter of guarantee (if any) and before executing content of change, the borrower shall send, directly or via post office, to the State bank (Department of Foreign Exchange Management) one (01) set of dossier as prescribed in Clause 2 of this Article.

b) Within fifteen (15) days after receiving a full and valid dossier of the borrower, the State bank shall send a written confirmation for change registration of foreign loans or issue of international bonds to the borrower. In case of refusal for confirmation on change registration of foreign loans or issue of international bonds, the State bank shall issue written reply clearly stating reason thereof.

Article 5. The reporting regime applicable to the borrowers

The borrowers shall report to the Ministry of Finance about situation of implementation of foreign loans and issuances of international bonds guaranteed by Government in accordance with regulations of the Ministry of Finance. The borrowers shall copy and send reports mentioned above to the State bank (Department of Foreign Exchange Management) for coordination in monitoring and managing.

Article 6. Effect

1. This Circular takes effect on October 01, 2013.

2. To annul provisions in section I, section II, section III and section IV Chapter III of the Circular 09/2004/TT-NHNN dated December 21, 2004, of the State bank, guiding the foreign borrowing and repayment by enterprises.

Article 7. Implementation organization

The Chief of office, Director of Department of Foreign Exchange Management, heads of units affiliated the State bank, legal representatives of the borrowers, General Directors (Directors) of credit institutions and other relevant organizations and individuals shall implement this Circular.

ANNEX 1A

REGISTRATION APPLICATION FOR THE FOREIGN LOAN GUARANTEED BY GOVERNMENT

Pursuant to the Government's Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantee;

Pursuant to the Circular No……/2013/TT-NHNN dated ………….,of the State bank of Vietnam, guiding procedures for registration and change registration of foreign loans and issues of international bonds guaranteed by Government;

Pursuant to the foreign loan contract entered into with foreign lending party (parties) on.....;

Pursuant to the Letter of guarantee issued by the Ministry of Finance on …………….;

The borrowing party named below registers with the State bank of Vietnam about the foreign long- or medium-term loan of the borrowing party as follows:

THE FIRST PART: INFORMATION OF INVOLVED PARTIES

I. Information of the borrowing party:

1. Name of the borrowing party: …………………………………………………………

2. Address: …………………………………………………………………………………

3. Telephone: ……………………………………….. Facsimile: ………………………

4. Full name of competent representative: …………………………………………….

5. The establishment decision (permit or certificate of registration, or certificate of investment as prescribed by law) No………. issued by………….., on………………..

6. The legal operational scope of the borrowing party

7. Total investment capital (applied to the borrowing party with foreign investment capital) or total charter capital (applied to types of other borrowing party):

8. Type of the borrowing party (defined under the establishment documents of the borrowing party):

9. Outstanding debt at time of doing dossier of registration:

- Outstanding debt of foreign short-term loan: ……………….( of which overdue: …………………)

- Outstanding debt of domestic short-term loan: ……………….( of which overdue: …………………)

- Outstanding debt of foreign medium-term loan: ……………….( of which overdue: .........................)

- Outstanding debt of domestic medium-term loan: ……………….( of which overdue: …………………)

II. Information of the lending party (In case of many lending parties, clarifying the following information for each lending party):

1. Name of the lending party: ………………………………………………………………

2. Address: …………………………………………………………………………………..

3. Country of creditor: ……………………………………………………………………….

4. Type of the lending party: ……………………………………………………………….

5. Relationship with the lending party (agent, mother company…) ……………………

………………………………………………………………………………………………

III. Information of involved parties

1. The guarantee party:

Name of the guarantee unit: ………………

1.2. Address of the guarantee party: ……………..

2. The insurance party:

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

2.2. Address of the insurance party: ……………..

3. The authorized credit institution:

3.1. Name of the authorized credit institution: ………………..

3.2. Name of the authorized credit institution: ………………

3.3. The account number of the capital for borrowing and paying foreign loan opened at the authorized credit institution:

4. Other relevant parties (clarifying the name, address, involving in loans – if any)

………………..

SECOND PART: INFORMATION OF THE BORROWING PURPOSE

1. The borrowing purpose (Project Finance, Import of goods, Payment of services, Finance lease …);

2. Name of investment project going to use the loan:

3. Documents proving the legality of investment project (approval of projects, certificate of investment registration…):

4. Locality, where the loan will be used:

THE THIRD PART: INFORMATION OF THE LOAN:

1. Date of signing contract of foreign borrowing ……………………….

2. The effective date of contract: ………………………………..

3. The borrowing amount:

3.2. In digits: .............................................................

3.3. In words: …………………………………………

4. The borrowing currency, the paying-debt currency: ……………………………..

5. The borrowing form: ………………………………………

6. The form of debt payment (debt payment by money, goods or other kinds, clarifying): ……………

7. The borrowing duration: ………………. (of which grace periods: ………………)

8. The borrowing interest rate:

8.1. The fixed interest rate: …………………………

8.2. The floating interest rate: Clarifying the selected type of interest rate, method of application, margin interest rate ….

9. Types of charge (guarantee charge, insurance premium, arrangement charge, management charge, other charge clarified): …………..

10. Penalty interest: ……………………….

11. Form of assurance (guarantee, mortgage, pay a deposit, pledge…): ……………………

12. The fund withdrawal plan: ……………………………………………………

12. The debt payment plan:

13.1. The principal payment plan: …………………………………..

13.2. The plan of interest payment: ……………………………………..

14. Other conditions (if any): ………………………..

* Note: Clarifying reference terms in the borrowing contract for each content at this part)

THE FOURTH PART: COMMITMENT

1. The person signing below (competent representative of the borrowing party) would like to undertake to take responsibility for the accuracy of all information stated in this Application and enclosed documents in dossier of registration for foreign loan of the borrowing party.

2. (Name of the borrowing party) would like to undertake to comply with Vietnam’s laws, provisions in the Government’s Decree No. 15/2011/ND-CP dated February 16, 2011, on the issue and management of Government’s guarantee and other relevant legal documents.

Enclosed documents:

- …

- …

ANNEX 1B

THE REGISTRATION OF THE INTERNATIONAL BOND ISSUE GUARANTEED BY GOVERNMENT

Pursuant to the Government's Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantee;

Pursuant to the Government's Decree No. 90/2011/ND-CP dated October 14, 2011 on issuance of corporate bonds;

Pursuant to the Circular No……/2013/TT-NHNN dated ………….,of the State bank of Vietnam, guiding procedures for registration and change registration of foreign loans and issues of international bonds guaranteed by Government;

Pursuant to the plan of issuing international bonds already been approved, accepted by …………at documents No. ……… dated………..;

Pursuant to the Letter of guarantee issued by the Ministry of Finance on …………….;

Pursuant to contracts, agreements involving the issue already signed on…………….;

[Name of the borrowing party] registers with the State bank of Vietnam for the issue of international bonds as follows:

THE FIRST PART: INFORMATION OF INVOLVED PARTIES

I. Information of the borrowing party (being organizations issuing international bonds):

1. Name of the borrowing party:

2. Address:

3. Telephone: Facsimile:

4. Full name of competent representative:

5. The establishment decision (or investment permit or certificate, or certificate of registration as prescribed by law) No………. issued by………….., on………………..

II. Information of representative of the lending party (in case the borrowing party select the issuing structure with unit representing for foreign bond holders)

1. Name of representative of the lending party:

2. Address:

3. Type of representative of the lending party:

III. Information of involved parties:

1. Organizations guaranteeing issue (clarifying name, address of each organization guaranteeing issue if there are many units guaranteeing for the same bond issuance);

2. Relevant agents (clarifying name, address of each agent related to the issuance such as the listing agent, the trust agent, the payment agent, the transfer agent, the depository and clearing organization…):

3. The authorized credit institution or foreign bank’s branch:

3.1. Name, address of the authorized credit institution or foreign bank’s branch:

3.2. The account number of the capital for borrowing and paying foreign loan opened at the authorized credit institution or foreign bank’s branch:

4. Other relevant parties (clarifying the name, address, involving):

SECOND PART: INFORMATION OF THE PLAN OF ISSUING INTERNATIONAL BONDS

1. Total issue value:

2. The issue purpose (clarifying each investment project or investment plan or business plan of the borrowing party which will be performed by the capital source from issue; the relevant written approvals as prescribed by law):

3. The issuing form, currency kind and market:

4. The issuing time:

5. Plan of using the capital source from issuance:

6. The written approvals, acceptances of the issuing plan (clarifying the written acceptance of the Prime Minister; the written appraisal of competent agencies as prescribed by law; the written approval of competent authorities as prescribed in Clause 3 Article 24 of the Government’s Decree No. 90/2011/ND-CP dated October 14, 2011, on issue of corporate bonds);

THE THIRD PART: INFORMATION OF THE ISSUE

1. Total nominal value of the issuance:

1.1. In digits:

1.2. In words:

2. Total amount received actually:

2.1. In digits:

2.2. In words:

3. Date of issue:

4. Due date:

5. Interest rate:

6. Charges of all kinds involving the issuance (clarifying name of each charge kind, charge level or method to calculate charge, payment date or payment plan…);

7. The guarantee conditions:

8. Conditions on transforming bond to shares or practicing the right to buy shares of bonds enclosed with warrants (if any):

8.1. Duration for transforming bonds to shares or practicing the right to buy shares of bonds enclosed with warrants:

8.2. Conditions for transforming bonds to shares or practicing the right to buy shares of bonds enclosed with warrants:

9. Plan of collecting money from selling bonds;

10. Plan of payment for bonds (principal, interest, charges):

11. Other conditions (if any):

(for each above item, clarifying the reference terms at relevant documents).

THE FOURTH PART: COMMITMENT

1. The person signing below (competent representative of the borrowing party) would like to undertake to take responsibility for the accuracy of all information stated in this Application and enclosed documents in dossier of registration for loan from issue of international bonds of [ Name of the borrowing party].

2. [Name of the borrowing party] would like to undertake to comply with the Government’s Decree No. 15/2011/ND-CP dated February 16, 2011, on the issue and management of Government’s guarantee; Decree No. 90/2011/ND-CP dated October 14, 2011, on the issue of corporate bonds and other relevant legal documents during the course of implementation of raising foreign capitals through the issue of international bonds guaranteed by the Government.

- The enclosed documents:

…

ANNEX 2A

APPLICATION FOR CHANGE REGISTRATION OF THE FOREIGN LOAN GUARANTEED BY GOVERNMENT

Pursuant to the Government's Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantee;

Pursuant to the Circular No……/2013/TT-NHNN dated ………….,of the State bank of Vietnam, guiding procedures for registration and change registration of foreign loans and issues of international bonds guaranteed by Government;

Pursuant to the official dispatch No. ………. dated …….. of the State bank, certifying the registration of foreign loan;

Pursuant to the official dispatches No. ………. dated …….. of the State bank, certifying the change registration of foreign loan (if any);

Pursuant to the contract, agreement of borrowing capital entered into with foreign lending party (parties) on.....;

Pursuant to the revised contract, agreement of borrowing capital entered into with foreign lending party (parties) on.....; (if any);

Pursuant to letter or Annex adjusting letter of guarantee dated ………. of the Ministry of Finance (if any).

The borrowing party named below registers with the State bank of Vietnam (Department of Foreign Exchange Management) about change of some contents of foreign borrowing as follows:

I. THE BORROWING PARTY:

1. Name of the borrowing party: ……………………………………….

2. No. , date of written certification of registration for foreign borrowing and paying debt of the State bank of Vietnam;

3. No. , date of written certifications of change registration for foreign loans of the State bank of Vietnam (clarifying all these documents – if any);

II. CONTENT OF CHANGE:

(Detailing each revised content according to the following sub-items)

1. Changing the lending party:

- The current lending party: ………………………..

- The new lending party: …………………………….

- Reason of change: ………………………………..

2. Changing turnover:

- The current turnover: ……………………………

- The new turnover: ………………………………..

- Reason of modification: …………………………………

3. Changing on conditions of borrowing (interest rate, charge, penalty interest, form of debt payment…):

- The current content: ……………………………..

- Content of change: …………………………….

- Reason of modification: …………………………………

4. Changing the fund withdrawal plan:

- The current fund withdrawal plan: ……………………………

- The new fund withdrawal plan: ………………………………..

- Reason of modification: ………………………………………….

5. Changing the debt payment plan: ……………………………

- The current debt payment plan: ……………………………

- The new debt payment plan: ……………………………….

- Reason of modification: ……………………………………….

6. Changing the guarantee party:

- The current guarantee party: ……………………………….

- The new guarantee party: ……………………………………

- Reason of change: …………………………………………

7. Other changes:

- Content of change: …………………………………….

- Reason of change: …………………………………………

III. PROPOSALS:

[Name of the borrowing party] would like to request the State Bank to confirm the registration of changes in the content of the foreign loan at the State Bank by [name of the borrowing party].

IV. COMMITMENT

1. The person signing below (competent representative of the borrowing party) would like to undertake to take responsibility for the accuracy of all information stated in this Application and enclosed documents in dossier of registration for change of foreign loan of the borrowing party.

2. [Name of the borrowing party] would like to undertake to comply with Vietnam’s laws, provisions in the Government’s Decree No. 15/2011/ND-CP dated February 16, 2011, on the issue and management of Government’s guarantee, documents guiding implementation of above Decree and other relevant legal documents.

The enclosed documents:

- ……

ANNEX 2B

THE APPLICATION FOR CHANGE REGISTRATION OF THE INTERNATIONAL BOND ISSUE GUARANTEED BY GOVERNMENT

Pursuant to the Government's Decree No. 15/2011/ND-CP dated February 16, 2011 on provision and management of Government guarantee;

Pursuant to the Government's Decree No. 90/2011/ND-CP dated October 14, 2011 on issuance of corporate bonds;

Pursuant to the Circular No……/2013/TT-NHNN dated ………….,of the State bank of Vietnam, guiding procedures for registration and change registration of foreign loans and issues of international bonds guaranteed by Government;

Pursuant to the plan of issuing international bonds already been approved by …………at documents No. ……… dated………..;

Pursuant to the official dispatch No. ………. dated …….. of the State bank, certifying the registration of the issue of international bonds;

Pursuant to the official dispatch (es) No. ………. dated …….. of the State bank, certifying the change registration of the issue of international bonds (if any);

Pursuant to the revised contract, agreement involving the issue already signed on……………. (if any);

Pursuant to letter or Annex adjusting letter of guarantee dated ………. of the Ministry of Finance (if any).

[Name of the borrowing party] registers with the State bank of Vietnam for the change content of foreign loan through the issue of international bonds as follows:

I. THE BORROWING PARTY:

1. Name of the borrowing party: …………………..

2. Documents of the State bank of Vietnam certifying registration, change registration of the issue of international bonds of the borrowing party (clarifying the number, date of all these documents);

II. CONTENT OF CHANGE:

For each change content, clarifying: (i) the current agreed content (already certified the registration by the State bank of Vietnam); (ii) the corresponding change content; and (iii) reason of change.

III. PROPOSALS:

[Name of the borrowing party] would like to request the State Bank to certify the registration of changes in the content of the issue of international bonds, according to the current law, by [name of the borrowing party].

IV. COMMITMENT

1. The person signing below (competent representative of the borrowing party) would like to undertake to take responsibility for the accuracy of all information stated in this Application and enclosed documents in dossier of registration for change of the issue of international bonds of [name of the borrowing party].

2. [Name of the borrowing party] would like to undertake to comply with the Government’s Decree No. 15/2011/ND-CP dated February 16, 2011, on the issue and management of Government’s guarantee; Decree No. 90/2011/ND-CP dated October 14, 2011, on the issue of corporate bonds and other relevant legal documents during the course of implementation of raising foreign capitals through the issue of international bonds guaranteed by the Government.

The enclosed documents:

- …

- …