Circular 17/2013/tt-Nhnn: Forex Management Guidelines For The Issuance Of International Bonds Of The Business Not Government Guarantees

Original Language Title: Thông tư 17/2013/TT-NHNN: Hướng dẫn về quản lý ngoại hối đối với việc phát hành trái phiếu quốc tế của doanh nghiệp không được Chính phủ bảo lãnh

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Circulars on Foreign Exchange Management for the issuance of international bonds of the business not government guarantees _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ pursuant to the law the State Bank of Vietnam the number 46/2010/QH12 16 June 2010;
Pursuant to the law on credit institutions the number 47/2010/QH12 16 June 2010;
Foreign Exchange Ordinance base of 28/2005/PL-UBTVQH11 on December 13, 2005;
Pursuant to Decree No. 90/2010/ND-CP dated 14 December 2010 of the Government on the release of corporate bonds;
Pursuant to Decree No. 96/2008/ND-CP on August 26, 2008 Government's functions, tasks, powers and structure of the State Bank of Vietnam;
At the suggestion of the Director of the Foreign Exchange Management;
The Governor of the State Bank of Vietnam issued circulars on Foreign Exchange Management for the issuance of international bonds of the business not government guarantees, chapter I GENERAL PROVISIONS article 1. Scope and objects 1. This circular regulates the evaluation clause in international bonds of commercial banks are State enterprises, confirmed the release limit of international bonds, confirming registration, the registration confirmation the account changes in international bonds of the business not government guarantees open and use foreign currency account to make the release of international bonds.
2. The object of the application this circular is the Organization, individuals related to the issuance of international bonds not guaranteed by the Government.
Article 2. Explanation of terms In this circular, the terms below are interpreted as follows: 1. international bonds are corporate bonds was released on international financial markets.
2. enterprises including joint stock companies and limited liability companies in accordance with the corporate law and the credit organization according to the provisions of the law on credit institutions.
3. Credit institutions, branches of foreign banks be allowed to credit institutions, branches of foreign banks in Vietnam are in active trading, Forex services under the provisions of the law of Vietnam.
4. Commercial Bank is the State Enterprise (hereinafter the State commercial bank) is a commercial bank established and functioning according to the law on credit institutions, because the State owns over 50% of the Charter capital.
5. Account released foreign loans are long-term, in the form of international bonds of enterprises are not Government guaranteed.
6. Confirm the release limit is the State Bank of Vietnam (hereinafter the "Bank") confirm in writing the value located in the release of the loan limit, the country's foreign trade was approved by the Prime Minister.
7. register account released is the enterprises registered with the State Bank of foreign loans in the form of international bonds.
8. Confirm account registration release is the State Bank to confirm in writing the business has made register account released under the provisions of this circular.
9. Confirm the change registration account released as the Bank confirmed in writing business has made the change registration account released when there is a change to the content of the State Bank has been confirmed in the confirmation text register account released.
10. loan account and pay foreign debt is foreign currency account due to open business in one (1) credit institutions, branches of foreign banks are allowed to perform account released.
11. the lending party representatives is held to represent the foreign owners left on the rights, obligations and responsibility of content related to bonds issued by enterprises.
Article 3. The responsibility of the business to international bonds 1. Compliance with the rules on the conditions of release, release schemes, the construction process of the competent approval issued, issuers and implemented the contents related to the issuance of bonds under the provisions of the Government on international bonds, the provisions of the law on securities , managed Forex, the provisions of current legislation and consistent with international law when done for international bonds.
3. Responsibility for the effective use of resources from release consistent with the purpose of international bonds has been approved under the provisions of the law.
4. open and use of loan account and pay foreign debt at one (1) credit institutions, branches of foreign banks are allowed to perform account released. Only business was the exit from international bond issuance account to use for the purposes that have been approved in the plan released after the State Bank to confirm registration. Case should open a foreign currency account abroad to make account, businesses have the responsibility to comply with the provisions of the relevant law about opening and using foreign currency accounts for residents is the economic organization.
5. Credit institutions issuing international bonds conversion or international bond attached to the certificate of compliance with the current rules of the law of the foreign investors who buy shares of the credit organization to Vietnam and the other provisions of the relevant laws.
6. Business (not the credit institutions) issued international bonds conversion or international bond attached to the certificate of authority must comply with the provisions of the current law on securities, investment; ensure rules on holding ratio of foreign investors, reporting, disclosure of information and the provisions of relevant laws.
Article 4. The right to buy foreign currency business is the right to buy foreign currency at credit institutions, branches of foreign banks be allowed to pay the original debt, the interest rate of the bonds and fees related to the account released on the basis of the present text, documents proving the payment demand under the provisions of the credit institutions foreign bank branches allowed to match current regulations on Foreign Exchange Management.
Article 5. The confirmation process limits, appraisal methods, register account in international bonds 1. For State commercial bank: a) after the construction and approval of the international bonds that meet the provisions of article 24 of the Decree 90/2010/ND-CP dated 14/10/2011 by the Government on the release of corporate bonds (hereinafter the Decree 90/2010/ND-CP), the sending State commercial bank State Bank (Foreign Exchange Management) suggested profile correctly get the limits of international bonds issued under the provisions of chapter III of this circular;
b) after confirmation of the release limit, sending State commercial bank State Bank (banking supervision, inspection) recommended records appraisal schemes, international bonds issued under the provisions of chapter II of this circular;
c) after being approved by the Prime alternative, international bonds, sending the State commercial bank State Bank (Foreign Exchange Management) recommended records confirm the registered account issued under the provisions of chapter IV of this circular.
2. for State enterprises is not the State commercial bank: a) after the construction and approval of the international bonds that meet the provisions of article 24 of the Decree 90/2010/ND-CP, Enterprise sent the State Bank (Foreign Exchange Management) recommended records confirm release limits for international bonds as defined in chapter III of this circular;
b) after it is approved by the Prime alternative, international bonds, SOE sent State Bank (Foreign Exchange Management) recommended records confirm the registered account issued under the provisions of chapter IV of this circular.
3. for other businesses: a) after the construction and approval of the international bonds that meet the provisions of article 24 of the Decree 90/2010/ND-CP, Enterprise sent the State Bank (Foreign Exchange Management) recommended records confirm release limits for international bonds as defined in chapter III of this circular;
b) Enterprise submitted the State Bank (Foreign Exchange Management) recommended records confirm the registered account issued under the provisions of chapter IV of this circular.
Chapter II PROCEDURES for APPRAISING PROJECTS for INTERNATIONAL BONDS of the STATE COMMERCIAL BANK article 6. Appraisal schemes, international bonds of the State commercial bank State Bank of evaluation projects in international bonds issued by State commercial banks, the prime consideration, approved.
Article 7. Time of the proposed evaluation projects in international bonds issued after the State Bank (Foreign Exchange Management) confirmed the release limit of international bonds, the State commercial bank sent directly or by post to the State Bank (banking supervision inspectors) a (01) record Bank proposal evaluation plan released international bonds and the prime consideration of approval.
Article 8. Recommended records appraisal schemes, international bonds suggested records appraisal schemes, international bonds include: 1. The text proposed State Bank appraisal schemes, international bond issuance.
2. A copy of the release variant of international bonds has been approved by the authority in accordance with article 24 paragraph 3 of the Decree 90/2010/ND-CP 3. Text copy approval on international bonds of the authority as specified in paragraph 3 of the article 24 of the Decree 90/2010/ND-CP. 4. A copy of audited financial statements of the State commercial banks in three (3) consecutive years adjacent before release.

5. The report of the State commercial bank about the proportion of the safe and secured the limits prescribed in Articles 128, 129 and 130 Articles Things The credit organization Law No. 47/2010/QH12 on 16/6/2010 and the text direction of the State Bank at the time closest to the time suggested the Bank appraised the broadcasting approach international bonds; the impact of the release clause and the use of capital from Treasury bonds to meet the security and rate the above limitations of State commercial bank.
6. The report, which reviews credit factor as defined in point) clause 1 Article 23 Decree 90/2010/ND-CP. The report on ensuring the rate of participation of foreign parties in the State commercial bank as defined in point b) item 2 Article 23 Decree 90/2010/ND-CP (applicable to the State commercial banks issued international bonds conversion or international bonds accompanied by the certificate authority).
Article 9. Order appraisal, the prime consideration, approved plans to release international bonds 1. Within a period of five (5) working days from the date of the bank records to check the adequacy and legal records. Case records are incomplete, invalid or in case of need, the State Bank have written asking commercial banks to the State amendments, additions.
2. within thirty (30) days of receipt of a valid, full profile, the State Bank of the opinion in writing of the outcome evaluation methodology of international bonds.
a) case of option issuing international bonds of the State commercial banks meet the principles and conditions of international bonds issued under the provisions of Decree No. 90/2010/ND-CP, the provisions of this circular and the other provisions of the relevant law, the sending State Bank State commercial bank written notice about the Prime Government review, approved plans to release international bonds of the State commercial bank.
b) case variant of international bonds issued by State commercial banks have yet to respond to the principles and conditions of international bonds issued under the provisions of Decree No. 90/2010/ND-CP, the provisions of this circular and the other provisions of the relevant laws, the State Bank has notified in writing.
Chapter III CONFIRMED the RELEASE LIMIT article 10 INTERNATIONAL BONDS. Recommended records confirm release limits 1. For business is the State commercial bank, recommended records confirm release limits include: a) petition to confirm release limits for international bonds (according to Appendix 1 attached to this circular);
b) copy options bonds International has granted the approval authority as prescribed in paragraph 3 article 24 Decree 90/2010/ND-CP;
c) copies the text approval issued international bonds of the authority as specified in paragraph 3 of the article 24 of the Decree 90/2010/ND-CP;
2. For business is not the State commercial bank, records suggest that confirmed norms include: a) petition to confirm release limits for international bonds (according to Appendix 1 attached to this circular);
b) legal business's records include: certified copies from the original business license or certificate of registration of business or investment certificate pursuant to the provisions of the law and copies of amendments (if any);
c) copy options bonds International has granted the approval authority as prescribed in paragraph 3 article 24 Decree 90/2010/ND-CP;
d) text copy approval on international bonds of the authority as specified in paragraph 3 of the article 24 of the Decree 90/2010/ND-CP;
DD) copy is attested from the original text by the approval authority according to the current rules of law with respect to the program, the enterprise's investment project; plans to raise capital; debt restructuring of enterprises will implement by issuing international bonds.
e) copies of financial reports audited of the business in three (3) consecutive years adjacent before release;
g) reports, reviews of credit system under the provisions of point) clause 1 Article 23 Decree 90/2010/ND-CP dated 14/10/2011;
h) report on the related content to meet regulations on ensuring the participation rates of foreign parties in the enterprise as defined in point b of Paragraph 2 Article 23 Decree 90/2010/ND-CP (apply for business international bonds conversion or international bond attached to the certificate of authority);
I) report on the safety guarantee rate and the limits prescribed in Articles 128, 129 and 130 Articles Things The credit organization Law No. 47/2010/QH12 on 16/6/2010 and the text direction of the State Bank at the time of the proposal confirms the release limit (applicable to businesses are credit institutions);
k) report on the related content to meet the requirements of capital safety ratio and other restrictions about safety in workings for the business lines have the condition prescribed in law specialization (apply for business not credit institutions).
Article 11. Order confirm release limits 1. Businesses send direct or by post to the State Bank (Foreign Exchange Management) a (01) record as defined in article 10 of this circular.
2. within ten (10) days of receipt of a valid, full profile of the business, the Bank sent a written business confirm release limits. The case refused to confirm release limits, the State Bank have text stating the reason.
Chapter IV REGISTRATION of ACCOUNTS article 12 RELEASE. Registered account records to release 1. The application account is the international bonds (according to Appendix 2 attached to this circular).
2. Copy attested from a main text notification of evaluation results by the authorized under the provisions of the law with respect to the scheme of international bonds issued by enterprises (applies to State enterprises).
3. Copy attested from original text approved by the Prime Minister to release projects for international bonds (applicable to State enterprises).
4. Copy attested from original message text comments of the State Securities Commission (applicable to business is the company issued convertible bonds or bond attached to the certificate authority).
5. Copies of foreign and Vietnamese translations (of the business) for: a) the underwriting contract or contract of purchase and sale of bonds;
b) contract rules of the organization is to represent the lender (if any);
c) The dealer agreements depending on the structure of the release;
d) consulting contract.
6. A copy of foreign and Vietnamese translations (of business) the contract or other agreement (if any) that business with foreign parties bound by the obligation to pay the fees related to the release of the business account.
Article 13. Order to register account released 1. After choosing the underwriting institutions, agents and legal advice, business or directly send by post to the State Bank (Foreign Exchange Management) a (01) record as defined in article 12 of this circular to registered account released.
With regard to the documents specified in Clause 5 and Clause 6 article 12 of this circular, the enterprise submitted the final draft was detailing the conditions of the relevant bonds.
2. within ten (10) working days from the date of receipt of the full application of the enterprise, the State Bank to check the adequacy of the record, valid. Case should clarify, add or edit the content concerned, the State Bank has written request complete business registration account records release.
3. When making the release, complete business registration account records released the bonds with the following documents: a Single registered account) released (according to Appendix 2 attached to this circular);
b) copy foreign and Vietnamese translations (of business) of the documents specified in Clause 5 and Clause 6 article 12 of this circular.
Article 14. Account registration confirmation time of release 1. State Bank review, confirm the registered account of international bonds issued within a period of two (2) working days from the date of the application with the following cases: a) The contract, the agreement signed with the appropriate official draft was last sent State Bank under the provisions of article 13 paragraph 1 of this circular.
b) contracts, agreements signed with other content with the final draft sent State Bank under the provisions of article 13 paragraph 1 of this circular, the content of the contract, the agreement officially signed guarantees not contrary to the provisions of the law of Vietnam. In this case, the enterprise sent the State Bank report clearly documents the relevant content.
2. The case does not meet the provisions of Paragraph 1 of this article, within two (2) working days from the date of receipt, the State Bank have written additional business requirements, registered account profile.
Article 15. Stars send registration confirmation text released by the State Bank account, why send a confirmation text register account released by the Ministry of finance for business (financial and debt management Department for foreign, State Securities Committee) to coordinate monitoring and active management of the loan, the repayment of the business through international bond issuance.
Chapter V CHANGE REGISTRATION ACCOUNT RELEASED article 16. Change registration account released case arises change compared to the content in the text confirm registration account release, before making the content change, businesses have the responsibility to register the change with the Bank within a period of thirty (30) days from the date of signing the agreement on changes or the parties involved announced the implementation of the right to convert the bonds into stock.
Article 17. Change registration account records to release 1. Change registration account records released include:

a) registration form change account international bonds (according to Appendix 3 attached to this circular);
b) copy foreign and Vietnamese translations (of business) the change of agreement signed;
c) written notice making the conversion of bonds into shares (applicable to the business of international bonds issued conversion);
d) copies the text agreed by the competent approval issued international bonds of enterprises with respect to the content change of international bonds issued account.
2. where the content changes have been approved by the authorized schemes released agreed principles when approval issued or altered content match under the rules of law that are not forced to sign officially in writing between the parties, the registry change account profile release including : a) the documents referred to in point a, c Paragraph 1 of this article;
b) text of the business clearly explain about content changes the account released.
Article 18. Order confirming registration change account released 1. Businesses send direct or by post to the State Bank (Foreign Exchange Management) a (01) record as defined in article 17 of this circular. During a maximum of fifteen (15) working days from the date of the change of registration records complete and valid, State Bank have written consent or refuse registration confirmation the account changes. The case of rejection, the State Bank have written notice of reasons.
2. where necessary to have enough basis to confirm or deny the registration confirmation to change the release clause, the State Bank have written additional business requirements document, the necessary information within ten (10) working days from receipt of the business.
Chapter VI LIABILITY of the CREDIT INSTITUTIONS, BRANCHES of FOREIGN BANKS BE ALLOWED to article 19. The responsibility of the credit institutions, branches of foreign banks are allowed 1. Open the loan account and pay foreign debt according to the recommendations of the business of international bonds.
2. Do get proceeds from the account released; money transfer payment issued bonds and money transfer payment of principal, interest on bonds of enterprises on the basis of the text of the State Bank to confirm registration, register the change account released (if any), the contract or agreement signed with business stakeholders to issue international bonds by enterprises to produce.
3. Perform the test, collated the relevant documents, ensure the correct implementation of the transactions of the account issued to registered, register the change with State Bank and in accordance with the provisions of the law.
4. Statistics of transactions to withdraw capital repayment arising, and the balance of the loan through the bonds of international business, made the State Bank report under the provisions of this circular.
5. Guide the enterprises to comply the current rules on borrowing, foreign debt, foreign exchange manager for the foreign loans through the international bond issuance, promptly report the State Bank in case of detecting signs of violation of the provisions of the relevant laws.
Chapter VII REQUESTING the REPORT, INSPECTION, HANDLING of breach of article 20. Report mode for business international bonds 1. At the latest after fifteen (15) days from the date of completion of the release and receipt of money selling corporate bonds, Bank State, Bank branch, the city where the business Headquarters reports results released.
2. Quarterly, annual, corporate responsibility report State Bank branch in the city, where the enterprises are located, the stars sent the Bank the implementation clause in international bonds (according annex 4 attached to this circular). The time limit for reporting as follows: a) to report on the latest quarterly: 10 of the first month in the next quarter;
b) for reporting year: at the latest on 31 January of the following year.
3. Periodically every year, at the latest on 31 January, corporate international bond issuance is the State commercial banks have a responsibility to send the State Bank report the situation to the original payment, interest on bonds and the use of capital from bonds of years ago adjacent.
4. At the latest after fifteen (15) days from the due date of payment the entire root, corporate bonds, interest rates sent the State Bank, the stars sent State Bank branch in the city, where corporate headquarters to report on the situation of the original payment, interest on bonds and the use of capital from international bond issuance.
5. in case of international bonds conversion or international bond attached to the certificate of authority, within ten (10) days of the completion of the conversion of bonds into shares or stock purchase rights execution of the bond holders attached to the certificate of authority, the business report released by the State Bank as defined in Article 32 paragraph 3 of the Decree 90/2010/ND-CP. 6. Irregular cases, corporate international bonds made reports at the request of the State Bank.
Article 21. The reporting regime for credit institutions, branches of foreign banks are allowed 1. Monthly, annual, credit institutions, branches of foreign banks be allowed to open business accounts place to perform account released responsibly State Bank report implementation of account bonds of international business (according to annex 5 attached to this circular). The time limit for reporting as follows: a) for report: the latest on May 10 of the next month;
b) for reporting year: at the latest on 31 January of the following year.
2. in case of sudden, credit institutions, branches of foreign banks be allowed to make a report as required by the State Bank.
Chapter VIII IMPLEMENTATION Article 22. The functions, tasks and mechanisms of coordination between the units of the State Bank 1. Inspection Agency, monitoring a Bank of) Do clue General comments related units in the State Bank of the State Bank Governor approves the evaluation plans international bonds of the State commercial bank;
b) notice of appraisal comments State Bank for the release of variants of the State commercial bank;
c) The Governor sign the writing process of the prime consideration, approve or refuse to approve plans to release international bonds of the State commercial bank;
d) make check, inspect and handle breach of the use of resources from the international bond issuance and compliance with the provisions of the relevant laws when making account of international bonds issued by State commercial bank.
DD) make check, inspect and handle breach of the abide regulations on Foreign Exchange Management for the activities related to the issuance of international bonds of business as prescribed in this circular.
2. Foreign Exchange Management Services a) made confirm release limits for international bonds of enterprises;
b) in coordination with the Ombudsman, the Agency overseeing the Bank in engaging ideas for options issued international bonds of the State commercial bank;
c) confirm registrations, registration changes account for international bonds of enterprises;
d) General plans to release international bonds of enterprises to coordinate with the Ministry of finance the construction loan limit the nation's annual trade;
the aggregate number of repayment), interest rates on international bond to track loan repayments situation of foreign business.
Article 23. Effect 1. This circular has effect from 1 September, 2013 2. This circular replaces Circular 19/2011/TT-NHNN on 24/8/2011 State Bank's guidelines on Foreign Exchange Management for the issuance of international bonds of enterprises is not guaranteed by the Government.
3. Abolition of the following provisions of the circular 18/2011/TT-NHNN dated Jan. 23/8/2011 State Bank's guidelines on Foreign Exchange Management for the medium and long-term foreign loans of the commercial banks are State-owned enterprises: clause 4 of article 3; paragraph 3 to article 4; the rules of the international bonds in paragraph 4 to article 2, paragraph 6 article 2, paragraph 1, article 4 Article 5 article 6 article 12, point b article 13 paragraph 1, point c Article 13 paragraph 1, point a Article 2, paragraph 13, point a paragraph 3 article 13, paragraph 4, point a article 13, paragraph 5, point a article 13.
Article 24. Enforcement of terms of Office, the Chief Inspector of the bank supervision, heads of units of the State Bank, Director of the State Bank of India branch of the province, central cities; General Manager (Director) credit institutions, branches of foreign banks are allowed; The Board, the Board members, the Director-General (Executive Director) enterprises in international bonds issued within the scope of his function is responsible for the implementation of this circular.

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