Circular 03/1999/tt-Nhnn7: A Guide To The Borrowing And Repayment Of Foreign Enterprises

Original Language Title: Thông tư 03/1999/TT-NHNN7: Hướng dẫn việc vay và trả nợ nước ngoài của các doanh nghiệp

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CIRCULAR guide the borrowing and repayment of foreign enterprises pursuant to article 22 and article 24 regulations of borrowing and repayment of foreign countries attached to Decree No. 89/1998/ND-CP dated 11 November 1998 from the Government, the State Bank of Vietnam (hereinafter the "Bank") guide the borrowing and repayment of foreign enterprises are as follows : chapter I GENERAL PROVISIONS section I. EXPLAIN SOME words in this circular, the following phrase is understood as follows: 1. foreign loan business (hereinafter referred to as "enterprises") include: a) the business is not a credit institution, operating in Vietnam:-State enterprises, private enterprises , limited liability companies, joint stock companies, cooperatives;
-Enterprise with foreign capital (venture business, 100% foreign-owned business);
-Branches of foreign companies;
-Foreign Parties involved in business cooperation contracts, foreign contractors;
-Other enterprises in all economic sectors in accordance with the law.
b) businesses are credit institutions operating in Vietnam: Vietnam: credit institutions-credit institutions, credit institutions of the State and the people, institutions and cooperation;
-Venture credit organization;
-Non-bank credit organization 100% foreign capital;
-Foreign bank branches.
2. Non-residents are understood by the concept of "non-resident" defined in the Decree 63/1998/ND-CP dated 17 August 1998 by the Government on the management of foreign exchange.
3. foreign loan contract is foreign loan agreements in effect withdraw capital, which regulates the terms and conditions of foreign loans, such as deferred purchase contracts, credit contracts, finance lease and other foreign loan agreements.
4. registration of the loan, the repayment of the foreign enterprises, after contracting foreign loans, long term (or after the completion of the procedures for issuing bonds abroad), loan registration, pay the foreign debt with the State Bank under the provisions of this circular.
5. Confirm registration of the loan, the repayment of the foreign bank to confirm in writing the business has made the loan registration, pay the foreign debt with the State Bank.
6. The Bank allowed the Bank's activities on the territory of Vietnam allowed foreign exchange operations, as defined in the Decree 63/1998/ND-CP dated 17 August 1998 by the Government on the management of foreign exchange.
Section II. The GENERAL PROVISIONS 1. Foreign business loans including loans under the following form: a) Loan finance (with money);
b) imported goods, deferred services according to the method of opening the letter of credit, Bank collection or allowed other deferred manner;
c financial Lease);
d) issued bonds abroad;
DD) other foreign loan type.
2. Business when contracting foreign lenders responsible for the legal, financial ability, the ability to arrange the party capital of foreign loans.
3. The business is not registered with the State Bank when signing the loan agreement does not force foreign funds such as: credit agreements, memoranda and other similar agreements, but the content of the foreign loan agreements are consistent with the provisions of the law of Vietnam.
During 30 days from the date of signing the agreement on business, send the original (or certified copy) and South Vietnamese translation agreement signed (certified by the corporate heads) for the State Bank (Foreign Exchange Management Service).
4. Request and process the registration of foreign loans: a) for short term loans: businesses do not have to register with the State Bank but short-term foreign loan contracts to ensure conformity with the conditions stated in section I, chapter II of this circular.
b) for medium-and long-term loan: the base of the conditions specified in section II of chapter II of this circular, enterprises contracted foreign loans then made the sign of the loan, the repayment of overseas with State Bank during 15 days from the date of signing the contract and before the withdrawal of capital.
5. With regard to the case of the business capital loans from credit institutions operating in Vietnam and foreign lender, the loan portion of the foreign business must comply with the provisions of this circular.
6. in case of transfer of short-term foreign loans into foreign loans, long term (the term of the loan was extended on 1 year), the business must follow the rules of lent, foreign debt, long term of this circular.
7. Before implementing any changes in the registration confirmation text loans, repayment of foreign bank as: adjust the amount of the loan, debt renewals, change the interest rate, prepayment, the Bank changes service funds, debt service and other changes , Business must register with the State Bank.
Chapter II FOREIGN BORROWING CONDITIONS section I. LOAN CONDITIONS SHORT-TERM FOREIGN business was only signed short-term foreign borrowing while ensuring the following conditions: 1. The purpose of short-term foreign loans match the scope of activity of the enterprise: a) for business not credit institutions : Short-term foreign loans to meet the needs of working capital for production business, in accordance with the scope of business activities are specified in the certificate of business registration; or the investment license; or operating licence by the competent authority;
b) for business are credit institutions: short-term foreign loans used to supplement funding of short-term credit.
2. Meet the loan conditions by the Governor of the State Bank Regulation: a) the object of the enterprise are short-term foreign loans;
b) loan duration and costs of short-term foreign loans (including interest, fees and other costs);
c) margin for short term foreign loans in commercial banks operating in Vietnam.
In each period, the Governor of the State Bank specifies the conditions of the loan referred to in point 2 of section I of chapter II of this circular.
3. for enterprises with foreign investment, in addition to the conditions specified in point 1 (a) and section I, point 2, of chapter II of this circular, in construction and have not yet put the project into operation, short-term foreign loans are guaranteed not to increase the total investment.
When businesses have foreign capital has completed the construction and put into operation, the project has completed the contributed capital and total capital used up, then the short-term foreign loans can be to supplement working capital according to the provisions of this circular and not related to the total investment.
4. is business credit institutions, in addition to the conditions specified in point 1 (b) and section I, point 2, of chapter II of this circular, must be made according to the current rules of the State Bank on the loan limit, short-term foreign loan guarantee.
5. In addition to the conditions prescribed in Points 1, 2, 3, 4 section I, chapter II of this circular, the content of the short term foreign loan contracts and agreements related to short-term foreign loans of enterprises must conform to the rules of the law of Vietnam.
Section II. FOREIGN BORROWING CONDITIONS, The LONG TERM 1. The business of credit institutions is not only be contracted foreign loans long-term, ensuring the following conditions: a) business for investment projects or production variant was the Agency has the authority to approve investment decisions;

b) tenor, grace period and the cost of foreign loans, long term (including the interest rate, fees and other costs) must conform to the regulations of the Governor of the State Bank in each period;
c) for business foreign investment, in addition to the conditions specified in point 1 (a) and 1 (b), section II, chapter II of this circular, foreign loans, China should ensure the long-term growth of capital.
d) State enterprises, in addition to the conditions referred to in point 1 (a) and 1 (b), section II, chapter II of this circular, before contracting foreign loans long term China must have the written comments of the State Bank on the last draft (with South Vietnamese translation, certified by the head of the business) for the following text :-the letter of guarantee (in the case of State enterprises are non-resident guarantor);
-Foreign loan contracts, long term.
Opinions of the State Bank is oriented for the State enterprises in the process of negotiating loan and pay foreign debt.
DD) in addition to the conditions specified in point 1 (a), 1 (b), 1 (c), 1 (d), section II, chapter II of this circular, the following contents of foreign loan contracts and agreements relating to foreign loans, China's enterprises must conform to the rules of the law of Vietnam :-account opening business in the foreign service of loan transactions;
-Foreign lender accepted the pledge, mortgage assets of the business;
Foreign loans to businesses, which established enterprises;
-Transfer or convert debt into shares and other investment forms;
-Other content was Vietnam law regulations.
2. The enterprise is the only credit institutions signed a Police Board of foreign loans, long term when ensuring the following conditions: a) foreign loans, long term used to supplement capital credit;
b) for credit institutions State: conditions specified in point 1 (b), 1 (d), 1 (dd), 2 (a) section II, chapter II of this circular;
c) for other credit institutions: the conditions specified in point 1 (b), 1 (dd), 2 (a) section II, chapter II of this circular.
Chapter III Records, REGISTRATION Of The LOAN, The REPAYMENT Of The FOREIGN Section I. REGISTRATION DOCUMENTS, The FOREIGN DEBT Of 1. Registration record foreign debt, loans for business not credit institutions include: a) loan application, pay the foreign debt (form No. 1);
b) certified copy of the decision established, business registration certificate; or the investment license; or license activity, other relevant documents by the competent authorities;
c) certified copies of the text of the relevant authorities for approval of investment projects or business plans (excluding enterprises of foreign investment);
d) certified copy of the decision of the competent authority of the enabling businesses to be issued abroad (in the case of bond release businesses abroad);
DD) copy and South Vietnamese translation of foreign loan contract signed (certified by the corporate heads).
2. Registration record foreign debt, loans for business are credit institutions include: the documents specified in point 1 (a), 1 (d), 1 (dd) section I, chapter III of this circular.
Section II. PROFILE REGISTER CHANGE registration profile change (for the cases specified in point 7, section II, chapter I of this circular) include: 1. change of registration form (form No. 2).
2. the last draft and South Vietnamese translation (confirmed by heads of business) the agreement changes.
3. Approval of the guarantors for the loans of foreign enterprises about changes (in the case of the enterprise guarantee).
After Bank confirm registration changes, businesses are empowered to sign the agreement and changes within 30 days from the date of signing, the business must send copies of the agreement signed and change out the South Vietnamese translations (confirmed by the heads of the business) for the State Bank (Foreign Exchange Management Service).
Section III. CONFIRM The REGISTRATION Of The BANK 1. State Bank to confirm the registration of the loan, the repayment of the foreign registration and change of business on the basis of: a the total borrowing limit plan) abroad annually by the Prime Minister;
b) foreign exchange management policy of the State in each period;
c) conditions on the duration of the loan, grace period and loan expenses (including interest, fees and other costs) by the Governor of the State Bank regulations in each period;
d) comments of the relevant agency for foreign loans of enterprises in case of need.
2. State Bank of notice in writing to the business in time 15 working days from the date of receipt of a valid application of enterprises about: a) comments of the State Bank for the draft letter of guarantee (in the case of State enterprises are non-residents) and foreign loan contract draft Central long term, of State enterprises;
b) confirm (or deny) for the registration of the loan, the repayment of foreign enterprises;
c) confirm (or deny) when registering business changes arise.
3. in case when the content of the foreign loan contracts and agreements relating to foreign loans (short, medium, long term) do not match the conditions specified in chapter II of this circular, enterprises are only contracted foreign loans when the State Bank have written permission.
Section IV. EXIT And PAY FOREIGN DEBT 1. The transaction of funds and repayment of foreign loans for's business is only done through Bank 01 is allowed, except for certain transactions (in which the Bank allowed no bail and making service): a) funds paid directly to a beneficiary abroad for goods , import services;
b) Withdraw the repayment of capital, through the business account opening in foreign countries (in the case of businesses are allowed to open accounts abroad);
c) funds in the form of import goods, deferred services, of repayment in the form of exports of goods and services.
2. The business case is made the withdrawal of capital, repayment through a bank is allowed but there needs converting to a bank is allowed to all other payment transactions to withdraw capital, repayment of the old banks; If the medium and long-term loan, business must register with the State Bank about changing service bank funds, repayment.
3. Enterprise when making withdrawals capital, repayment of foreign banks are allowed to implement the following provisions: a) When the exit:-with regard to short-term foreign loans, businesses must present to the Bank is allowed to conduct the business place exit a key short-term foreign loan contract signed;
-For foreign loans, long term, the enterprise must present original documents confirming registration of the loan, the repayment of the foreign bank;
In addition, foreign loans for short, medium, long term, businesses have a responsibility to present the text, other documents required when banks are allowed to ask.
In the case of business does not make the withdrawal of capital through the Bank allowed that only make repayment through banks are allowed, during 5 days from the date of withdrawal of capital, the business must be notified in writing to the Bank are allowed where businesses make the repayment on the exit and the number which have drawn foreign loan contract.
b) When repayment: the enterprise must present to the Bank are allowed where businesses make the repayment of the following documents:

-The original certificate of registration of the loan, the repayment of the foreign bank's Home country (in the case of medium to long-term foreign loans);
-A major foreign loan contract (short, medium, long term) have signed;
-The original or a copy (certified by the corporate heads) the documents proving the withdrawal of capital by foreign loans contract (short, medium, long term) and the text, other documents required when banks are allowed to ask.
In the case of business has made the withdrawal of capital through the Bank are allowed but not make repayment through banks are allowed, during the 5 days of implementing the repayment, the business must be notified in writing to the Bank is allowed to conduct the business place funds on the date of repayment and the amount to repay foreign loans by contract.
4. The Bank is permitted to perform the following rules when making withdrawals capital, paying foreign debt for business: a) for short-term foreign loans:-implement the withdrawal of capital, transfer of foreign debt payments for business on the basis of a major foreign loan contracts signed and short-term certificate from the exit the repayment, due to business process;
-Check, collate the documents presented by enterprises to ensure the correct implementation of loan transactions;
-Statistics of transaction funds, repayment arise, balance and other necessary data of short-term foreign loans that banks have guarantees, making service;
-Save a copy of the documents required by the business process.
b) for foreign loans, long term:-perform checks, collate the documents presented by enterprises to ensure the correct implementation of the loan transactions that businesses have registered with the State Bank;
-Implementation of the transfer of funds to pay the foreign debt on the basis of documents confirming registration of the loan, the repayment of the foreign bank, the foreign loan contracts, long term and the documents proving the withdrawal of capital, repayment attributed the export business;
-Save a copy of the registration confirmation text loans, repayment of the State Bank's foreign and copy the text, other documents required by the business process;
-Statistics of transactions to withdraw capital, debt incurred and the balance of each foreign loans the Central Bank that has long term guarantee, making the service;
c) the Bank is allowed to not make the withdrawal of capital, transfer of foreign debt payments to foreign loans of enterprises in the following cases:-business has signed a short-term foreign loans with the content does not match the condition specified in section I, chapter II of this circular when the State Bank allowed no writing;
-Foreign loans long-term, businesses do not have the certificate of registration of the loan, the repayment of the foreign bank;
-Foreign loans, long-term businesses have incurred changes but not businesses have written confirmation of registration of change of State Bank.
d) guide the enterprises to comply the current rules on loans, repayment of foreign countries; promptly report the State Bank in case of detection of businesses that violate current rules on loans, repayment of foreign countries.
5. The Bank is allowed to have the responsibility to implement the regulations on the funds, foreign debt of this circular for foreign loans of the Bank allowed it.
Chapter IV REPORTING, INSPECTION, VIOLATION PROCESSING Section I. REPORT MODE 1. Periodically, the Bank was allowed to State Bank reports according to the current rules on the figures for the foreign loans are short, medium and long term bank loan, guarantee and service funds, repayment.
2. Periodically, businesses (including credit institutions not be allowed to Bank) must State Bank reports according to the current rules of the metric with respect to: a) The short-term foreign loans of business, do not make the withdrawal of capital and bank debt are allowed (the case referred to in point 1 (a) , 1 (b), 1 (c) section IV, chapter III of this circular).
b) foreign loans, long-term business.
3. When necessary, business (including credit institutions), The State Bank branch, central cities must report on the situation of the loan, the repayment request of foreign bank.
Section II. INSPECTION, VIOLATION PROCESSING 1. Periodically or when necessary, State Bank and other relevant agencies to conduct the work to check the situation of the loan and the repayment of foreign business. Businesses have the responsibility to provide all necessary materials, documents for the examination is done timely, effective.
2. State Bank will not confirm the registration of the loan, the repayment of foreign countries (including confirmation of registration changes) of the business in the following cases: a) the enterprise has contracted foreign loans, long term with the content does not match the condition specified in section II Chapter II of this circular, while the State Bank allowed no writing;
b) enterprise has signed the agreement of changes in the circumstances mentioned in Point 7, section II, chapter I of this circular when no certificate of registration change of State Bank.
3. Any breach of this circular, depending on the level of violation will be handled according to the current law.
Chapter V ENFORCEMENT PROVISION 1. This circular effect after 15 days from the date of signing and replace the following text: a) Circular No. 07/TT-on NH7 26/03/1994 of the Governor of the State Bank, loan management guide and pay foreign debt of enterprises;
b) decision No. 173/QĐ-NH7 on 08/06/1996 of the Governor of the State Bank of the supplement, revise some points of the circular No. 07/TT-on NH7 26/03/1994 Guide to managing loans, repayment of foreign enterprises;
c) some relevant content in Directive 6/CT-NH7 on 06/06/1996 of the Governor of the State Bank on strengthening the management of foreign debt, loans.
2. for foreign loan signed before this circular effect and are in the process of withdrawal of capital, debt, enterprises as follows: a) for short-term foreign loans: business (including the Bank allowed) make the report according to the provisions of this circular;
b) for foreign loans, long-term China had written to confirm registration of the State Bank: business (including the Bank allowed) continue to follow the text confirm it and the provisions of this circular.
3. all amendments and supplements to this circular by the State Bank Governor decided.
4. The Chief, Chief Inspector of the State Bank, heads of units of the State Bank, Director of The State Bank branch, central cities, General Manager (Director) credit institutions within the scope of his function is responsible for the Organization, deployment guide , made this circular.
5. The ministries, business administration according to function, their duties coordinating the direction make this circular.

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