Thông tư 45/2011/TT-NHNN

CIRCUALAR

PROVIDING FOR THE FOREIGN EXCHANGE CONTROL APPLICABLE TO FOREIGN LOANS AND DEBT COLLECTION BY CREDIT INSTITUTIONS

- Pursuant to the Law of the State Bank of Vietnam No. 46/2011/QH12 dated 16 June 2010;

- Pursuant to the Law on credit institutions No. 47/2010/QH12 dated 16 June 2010;

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

- Pursuant to the Decree No. 160/2006/ND-CP dated 28 December 2006 of the Government providing in details for the implementation of the Ordinance on foreign exchange;

- Pursuant to the Decree No. 96/2008/ND-CP dated 26 August 2008 of the Government providing for the functions, duties, authorities and organizational structure of the State Bank of Vietnam;

The State Bank of Vietnam (hereinafter referred to as the State Bank) hereby provides for the foreign exchange control applicable to foreign loans, debt collection by credit institutions as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope and subject of applications

1. This Circular provides for the foreign exchange control applicable to foreign loans, debt collection by Credit institutions.

2. Subject of application of this Circular are organizations, individuals related to the foreign loan, debt collection by credit institutions.

Article 2. Interpretation

In this Circular, following terms shall be construed as follows:

1. Foreign loan shall mean the case where the credit institution provides a sum of money to a non-resident customer (hereinafter referred to as the foreign borrower) for a certain purpose in a certain period of time under an agreement in the principle of repayment of both principal and interest.

2. Loan agreement shall mean a written agreement signed by and between the credit institution and the foreign borrower, which is effective for the disbursement and debt collection, providing for the terms and conditions of the foreign loan with regards to loan using purpose, lending method, amount of the loan fund, interest rate, period, loan maturity, contents on the loan security, method of debt repayment, and other relevant commitments.

3. Agreement of change shall mean a written agreement signed by and between the credit institution and the foreign borrower regarding the amendment of, supplement to the signed loan agreement. Agreement of change may be made in the form of a new agreement, appendix to the signed loan agreement.

4. Registration of loan, change of loan shall mean the registration by the credit institution with the State Bank for a foreign loan or changes of a foreign loan as provided for in this Circular.

5. Confirmation of registration shall mean a document issued by the State Bank confirming that the credit institution has registered for the foreign loan in accordance with provisions of this Circular.

6. Confirmation of registration for change shall mean a document issued by the State Bank confirming that the credit institution has registered for the change of the foreign loan upon making some change in the contents that have already been confirmed by the State Bank in the written registration confirmation.

7. Account of foreign loan and debt collection shall mean a foreign currency account that is used to provide a foreign loan.

Article 3. Responsibilities of the credit institution

1. To verify the legal capacity, financial capacity of the foreign borrower; ability to perform the loan agreement in order to sure that both principal and interest debts shall be collected in accordance with the loan agreement.

2. To take self-responsibility for any legal and financial risk in entering into and performance of the loan agreement.

3. To comply with current provisions of laws on foreign exchange control, foreign loans and debt collection, regulation on lending of the credit institution applicable to its customers, security for the foreign loan, other provisions of applicable laws of Vietnam and relevant foreign laws in entering into and performance of the loan agreement.

4. To draw up a procedure for credit appraisement, credit risk management and prevention for foreign loans, debt collection in conformity with current provisions of applicable laws.

Article 4. Foreign loan syndication

1. When taking part in foreign loan syndications, the credit institution shall be obliged to comply with provisions of this Circular and other provisions of applicable laws.

2. In case where there is 01 (one) credit institution joins with other non-resident-lenders to provide the foreign loan syndication, the credit institution shall implement the provisions on registration of the loan, change of loan with the State Bank, opening and use of an account of foreign loan, debt collection, reporting in accordance with provisions in this Circular for its participation in the foreign loan syndication.

3. In case where there are 02 (two) credit institutions and more joining in the foreign loan syndication, such credit institutions shall authorize to one credit institution to act as the head. The head credit institution shall take responsibilities for representing for the lending credit institutions to implement regulations on registration of loan, change of loan with the State Bank, opening and use of an account of foreign loan, debt collection and reporting in accordance with this Circular.

Article 5. Currency of foreign loans

1. The foreign loan, debt collection by credit institutions shall be performed in foreign currency.

2. Any foreign loan, debt collection by credit institutions in Vietnamese dong shall only be performed upon obtaining a written approval from the State Bank.

Article 6. Foreign loan guarantee

In the event where the foreign loan is guaranteed by a Vietnamese guarantee institution, the performance of the guarantee obligations thereof shall be in compliance with provisions of applicable laws.

Chapter II

SPECIFIC PROVISIONS

Article 7. Conditions for a foreign loan

When performing the foreign loan, the credit institution shall be required to satisfy following conditions:

1. To be authorized by the State Bank to deal in and supply foreign exchange services in the international market, including the lending activity in international market.

2. To comply with current provisions of the State Bank on credit growth rate, prudential ratios in activities of credit institutions.

3. To have a process on approval to foreign loans in the principle of ensuring the independence and clear assignment of individual responsibility, responsibility in the verification and decision on providing foreign loans.

4. To classify debts, making provisions against credit risk the foreign loans in accordance with current provisions of the State Bank on debt classification, making and use of provision in dealing with credit risks in banking activities by of the credit institution.

5. To appraise the lending project, assessing the country risk and ability to timely and fully collect all principal and interest debts of the foreign loans.

6. To have the plan on the mobilization and lending of foreign currency in compliance with the currency structure, term structure between the mobilization and lending, avoiding maturity risk and liquidity risk that may arise due to the performance of the foreign loan.

7. Only perform foreign loan to the business plans, projects that are conformable to the legal operation scope of foreign borrower.

8. To ensure that contents of the loan agreement and the agreements related to the foreign loan shall be in conformity with current provisions of Vietnam’s applicable laws.

Article 8. Foreign borrower

1. The credit institution shall only provide loan to a foreign borrower who is an enterprise established and operated in a foreign country to which a Vietnamese enterprise contributes its capital in the form of overseas direct investment.

2. Other cases shall only be carried out upon obtaining a written approval from the State Bank.

Article 9. Registration of loan, change of loan

1. On the basis of the satisfaction of conditions applicable to a foreign loan as provided for in this Circular, the credit institution shall sign the loan agreement, agreement of change with the foreign borrower and other related parties.

2. The credit institution shall proceed with registration for the loan, registration for change of the loan with the State Bank within a period of 30 (thirty) days since the date of signing the loan agreement or agreement of loan change (where the loan is not guaranteed) or within a period of 30 (thirty) days since the date where the guarantee institution signs the guarantee document or signs the document agreeing with the change of the loan agreement (where the loan is guaranteed).

3. Any transaction in connection with the foreign loan shall only be performed after the State Bank has confirmed the registration, confirmed the registration for change in accordance with provisions of this Circular.

4. The credit institution shall not be required to register with the State Bank for loan agreements without capital withdrawal effect, such as: framework credit agreements, Memorandum of understanding and other similar agreements whose contents are not contrary to applicable laws of Vietnam.

Article 10. Application file for loan

The credit institution shall send, directly or via post service, 01 (one) application file for loan to the State Bank (Department of Foreign Exchange Control). The application file shall include:

1. An application for the foreign loan (in accordance with the Appendix No. 01 enclosed to this Circular).

2. A Report on credit growth of credit institution, evidence for the satisfaction of prudential ratios in activities of the credit institution as at the end of the latest month prior to the signing date of the loan agreement and assessment on the impact of the foreign loan on the compliance with provisions on credit growth and prudential ratios in activities of the credit institution.

3. The appraisement report on the foreign loan, including following major contents: assessment on the feasibility, effect of the investment project, the business plan of the foreign borrower; possible risks, ability to timely and fully collect the principal, interest debts; the observance the value of loan and the scope of loan use; the guarantee of loan and other relevant contents.

4. Report and commitment of credit institution on the satisfaction of the conditions applicable to foreign loans as prescribed in paragraph 3 and paragraph 4 Article 7 of this Circular, including following major contents: regulations on the credit process applicable to foreign loan operations of the credit institution; the real situation of the qualification of the credit officers, management capacity, risk prevention; the classification of debt, making provision for foreign loans; commitment to comply with current provisions of the State Bank on debt classification, making and use of provision for dealing with credit risks for foreign loans.

5. Report on the source of foreign currency fund for loan, including contents related to the scale, currency structure and maturity structure between mobilized fund and lending in foreign currency at the time of signing the loan agreement.

6. Certified copies and Vietnamese translation of the Establishment decision or Investment registration certificate of the foreign borrower in accordance with provisions of the native country.

7. A certified copy of the overseas investment certificate of the Vietnamese enterprise that contributes capital in the foreign borrower.

8. A copy and Vietnamese translation (with confirmation of an authorized representative of the credit institution) of the signed loan agreement.

9. A copy and Vietnamese translation (with confirmation of an authorized representative of the credit institution) of the documents, guarantee agreement, security for the foreign loan.

Article 11. Application file for change of loan

The credit institution shall send, directly or via post service, 01 (one) application file for the change of loan to the State Bank (Department for Foreign Exchange Control). The application file shall include:

1. An application for the change of foreign loan (in accordance with the Appendix 02 enclosed to this Circular).

2. A copy and Vietnamese translation (with confirmation of an authorized representative of the credit institution) of the signed agreement on change. In case where the changed contents of relevant parties have already been agreed in the loan agreement or approved in accordance with provisions of applicable laws without necessity for an official signature in writing among the parties, the credit institution shall issue a document to clearly explain such contents in the application file for change of loan.

3. A report demonstrating the satisfaction of provisions on credit growth rate and prudential ratios in activities of the credit institution as at the end of the latest month prior to the date of signing the agreement on change of the foreign loan (in case where the change concerns the increase of turnover or extension of the duration of the foreign loan).

4. A copy and Vietnamese translation (with confirmation of an authorized representative of the credit institution) of written approval of the guarantee institution on the agreement on the change (where the foreign loan is guaranteed).

Article 12. Bases for considering the confirmation of registration and registration for change

The State Bank shall consider the confirmation of registration, registration for change of the foreign loan of the credit institution on following bases:

1. The foreign exchange control policies of the State from time to time.

2. The sufficiency and validity of the application file for loan registration, loan change registration.

3. The compliance with and full satisfaction of provisions on foreign loans by the credit institution as prescribed in this Circular, lending regulations of the credit institution applicable to customers and other relevant provisions of applicable laws.

4. The opinion of concerned agencies on foreign loans of the credit institution upon necessity.

Article 13. Period of handling the application file for loan, change of loan

1. The State Bank shall handle the application file for loan, change of loan of a credit institution within a period of 30 (thirty) days since the full receipt of the valid application file. In case of refusal, the State Bank shall issue a document to clarify the reasons thereof.

2. In case where more information and conditions are required for confirmation or refusal to confirm the registration, registration for change, the State Bank shall send a written notice to the credit institution within 10 working days since the receipt of the application file from credit institutions.

Article 14. Account of foreign loan, debt collection

1. Each foreign loan shall be performed by credit institution via 01 (one) account of foreign loan and debt collection opened at the very credit institution or at another credit institution. The credit institution shall be required to perform all transactions relating to the disbursement for the foreign loan, debt collection (principal, interest debt and types of fees…) via this account.

2. For the case of opening the account of foreign loan, debt collection at the very credit institution for performing the foreign loan and debt collection, the credit institution shall be responsible for performing separate accounting of transactions relating to the foreign loan on the account of foreign loan and debt collection; be responsible for and ensure the performance of transactions relating to the foreign loan in line with contents of the registration confirmation, change registration confirmation issued by the State Bank.

3. For the case of opening an account of foreign loan and debt collection at another credit institution for performing the foreign loan, the credit institution where the account is opened shall be responsible for checking and comparing the documents submitted by the borrower in order to ensure the right performance of all transactions of that foreign loan, for which the State Bank has confirmed the registration, registration for change and in conformity with current provisions of applicable laws.

4. That the credit institution maintains a foreign currency account at a foreign country for foreign loan and debt collection shall be implemented in accordance with current provisions on the opening and use of overseas foreign currency account of credit institutions.

Article 15. Reporting regime

1. On a monthly basis (on the 10th of the next month at the latest), on an annual basis (on 31st January of the next year at the latest), the credit institution takes responsibility for the report on the implementation of the foreign loan (in accordance with Appendix 03 and Appendix 04 promulgated with this Circular).

2. In unexpected cases, the credit institution shall report upon request by the State Bank.

Chapter III

IMPLEMENTATION ORGANIZATION

Article 16. Assignment of tasks and mechanism of coordination

1. Department of Foreign Exchange Control:

a) To chair and coordinate with relevant units of the State Bank in handling common issues relating to foreign loans of credit institutions in accordance with current provisions of applicable laws.

b) To collect opinions from the Banking Inspection and Supervision Department and other units of the State Bank, other relevant agencies (if necessary), to send report to the Governor of the State Bank for making decision on the confirmation or refusal to confirm the registration, registration for change in line with provisions of this Circular.

c) On a half-yearly basis, to collect figures and report the Governor of the State Bank on the foreign loan and debt collection performance of credit institutions.

2. Banking Inspection and Supervision Department:

a) Within a period of 10 working days since the receipt of the request from the Department for Foreign Exchange Control regarding the opinion to foreign loan, the Banking Inspection and Supervision Department shall send a document to the Department of Foreign Exchange Control on contents relating to the foreign loans of credit institutions. Contents of such document shall include: confirmation on the business scope, supply of foreign exchange services by the credit institutions; confirmation on the compliance by credit institutions with current provisions of the State Bank on prudential ratios in activities of credit institutions, regulations on the ratio of short-term mobilized fund used for offer of medium-term and long-term loans of the credit institutions as at the end of the month prior to the signing date of the loan agreement or agreement for change where the change results in an increase of the turnover or period of the foreign loan.

b) To chair and coordinate with relevant units in inspecting, checking, supervising the foreign loan, debt collection activity of credit institutions; dealing with any act of violation that may arise.

3. Other units of the State Bank shall, within the scope of functions, duties and management, take responsibility for the cooperation, contribution of opinion on the application file for loan, change of loan of credit institutions in necessary cases.

Article 17. Implementation provisions

1. This Circular shall come into effect from 13 February 2012.

2. Foreign loans offered by credit institutions which have been performed before the effective date of this Circular shall continue to be performed in accordance with the written confirmation of registration, registration for change (if any) issued by the State Bank. In case where there are any changes arising after the effective date of this Circular, the relevant credit institution shall implement in accordance with provisions of this Circular.

Article 18. Implementation organization

Director of Administrative Department, Director of the Foreign Exchange Control Department, Director of the Banking Inspection and Supervision Department, Head of units of the State Bank of Vietnam, General Manager of State Bank's branches in provinces, cities, Chairman of the Board of Directors, General Director (Director) of credit institutions shall be responsible for the implementation of this Circular.

APPENDIX 01

APPLICATION FOR REGISTRATION OF A FOREIGN LOAN

To: The State Bank of Vietnam

- Pursuant to the Circular No. 45/2011/TT-NHNN dated 30/12/2011 of the State Bank providing for the foreign exchange control applicable to foreign loans and debt collection by Credit institutions;

- Based on the Agreement of foreign loan, debt collection signed with [name of the Borrower] dated …/…/…

- Based on the Letter of guarantee (or Guarantee Contract) dated …/…/… (if any)

[Name of the credit institution] hereby would like to register with the State Bank on the foreign loan, debt collection as follows:

SECTION I: INFORMATION ABOUT RELEVANT PARTIES

I. Information about the Lender (or lenders who are domestic credit institution in case of co-finance):

1. Name of the lending credit institution:

2. Address:

3. Tel No.:                                             Fax:

4. Full name of the authorized representative:

5. Number of the Establishment decision (or Investment License or Investment

Certification or Business registration license…)………. issued by…………on…………

6. Documentations proving that credit institution is authorized to engage in foreign exchange activities (including the foreign loans) in accordance with current provisions of applicable laws:

II. Information on the Borrower:

1. Name of the borrower:

2. Address:

3. Overseas establishment (operation) License:

4. Total investment capital as stated in the Establishment License of the enterprise:

5. Overseas investment License of Vietnamese shareholders at the Borrower as a foreign enterprise.

III. Information on relevant parties

To clearly state name, address of each party.

SECTION II: INFORMATION ON THE LOAN

1. Total amount of the loan:

(In case of loan syndication, please specify: (i) Total amount of the loan as stated in the loan agreement; (ii) Total amount contributed by Lenders which are domestic credit institutions; (iii) List and loan limit of each Lender which is a domestic credit institution.

2. Written approvals to the loan (clearly state the written approval in accordance with provisions of applicable laws).

3. Relevant contracts (credit contract, co-financing contract, guarantee contracts…)

4. Purpose of the loan:

5. Interest rate:

6. Fees:

7. Penalty interest rate:

8. Loan period: (loan period, grace period)

9. Plan of disbursement:

10. Plan of interest payment:

11. Plan of principal payment

12. Form of loan security:

13. Service bank: (domestic credit institution and/or foreign credit institution, if any)

(For each of above item, to specify reference clauses in the relevant document).

SECTION III. COMMITMENTS

1. The hereunder signatory (authorized representative of the enterprise) undertakes to be responsible for the accuracy of any information in this Application for the foreign loan and attached documents in the Application file for foreign loan of [Name of the credit institution].

2. [Name of the credit institution] undertakes to comply with provisions in the Circular No.45/2011/TT-NHNN dated 30/12/2011 of the State Bank providing for the foreign exchange control applicable to foreign loan, debt collection of credit institutions; the Decree No.160/2006/ND-CP dated 28/12/2006 of the Government providing for the implementation of the Ordinance on foreign exchange; and other provisions of Vietnam’s applicable laws in conformity with relevant international laws during the performance of the foreign loan, debt collection.

Authorized representative as provided for by the Laws
(Signature and seal)

APPENDIX 02

APPLICATION FOR REGISTRATION OF CHANGE TO THE FOREIGN LOAN

To: the State Bank of Vietnam

- Pursuant to the Circular No. 45/2011/TT-NHNN dated 30/12/2011 of the State Bank providing for the foreign exchange control applicable to foreign loans and debt collection by Credit institutions;

- Based on the Agreement of foreign loan, debt collection signed with

[Name of the borrower] dated …/…/…

- Based on the Agreement of change to the foreign loan, debt collection signed with

[Name of the borrower] dated …/…/…

- Based on the Letter of guarantee (or Guarantee Contract) dated …/…/… (if any)

- Based on the written confirmation on the registration for the foreign loan issued by the State Bank No. …../NHNN-QLNH dated …./…./….;

[Name of the credit institution] hereby would like to register with the State Bank on the change of several contents of the foreign loan, debt collection as follows:

SECTION I: CONTENTS TO BE CHANGED

1. [Contents to be changed]

Current agreement: New agreement: Reasons for change:

2. [Contents to be changed]

Current agreement: New agreement: Reasons for change:

3………………

(For each of above items, to specify the reference terms in the relevant document).

SECTION II: PROPOSALS

It is proposed that the State Bank of Vietnam shall confirm that [Name of the credit institution] has registered for change of contents of the foreign loan, debt collection at the State Bank of Vietnam.

SECTION III: COMMITMENTS

1. The hereunder signatory (authorized representative of the enterprise) undertakes to be responsible for the accuracy of any information in this Application for change in the foreign loan and attached documents in the Application file for change in the foreign loan of [Name of the credit institution].

2. [Name of the credit institution] undertakes to comply with provisions in the Circular No.45/2011/TT-NHNN dated 30/12/2011 of the State Bank providing for the foreign exchange control applicable to foreign loan, debt collection of credit institutions; the Decree No.160/2006/ND-CP dated 28/12/2006 of the Government providing for the implementation of the Ordinance on foreign exchange; and other provisions of Vietnam’s applicable laws in conformity with relevant international laws during the performance of the foreign loan, debt collection.

Authorized representative as provided for by the Laws
(Signature and seal)