Circular 10/2022/TT-NHNN issuance of bonds to international market by enterprises not entitled to government guarantee

CIRCULAR

Guiding foreign exchange management for the issuance of bonds to the international market by enterprises not eligible for Government guarantee^[1]

Pursuant to the June 16, 2010 Law on the State Bank of Vietnam;

Pursuant to the June 16, 2010 Law on Credit Institutions; and the November 20, 2017 Law Amending and Supplementing a Number of Articles of the Law on Credit Institutions;

Pursuant to the December 13, 2005 Ordinance on Foreign Exchange; and the March 18, 2013 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Foreign Exchange;

Pursuant to the Government’s Decree No. 219/2013/ND-CP of December 26, 2013, on the management of foreign loan borrowing and repayment by enterprises not eligible for Government guarantee;

Pursuant to the Government’s Decree No. 153/2020/ND-CP of December 31, 2020, on the offering and trading of privately placed corporate bonds on the domestic market and the offering of corporate bonds to the international market;

Pursuant to the Government’s Decree No. 16/2017/ND-CP of February 17, 2017, defining the functions, tasks, powers and organizational structure of the State Bank of Vietnam;

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

The Governor of the State Bank of Vietnam promulgates the Circular guiding foreign exchange management for the issuance of bonds to the international market by enterprises not eligible for Government guarantee.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular provides procedures for registration or registration of change of bond amounts to be issued to the international market by enterprises not eligible for Government guarantee.

2. Other contents on foreign exchange management related to foreign loans in the form of bonds issued to the international market must comply with regulations on foreign exchange management applicable to foreign loan borrowing and repayment by enterprises.

Article 2. Subjects of application

1. Issuers being residents, including joint-stock companies and limited liability companies established and operating in accordance with Vietnam’s law.

2. Organizations and individuals involved in the issuance of bonds to the international market by enterprises not eligible for Government guarantee.

Article 3. Interpretation of terms

In this Circular, the terms below are construed as follows:

1. Bonds issued to the international market means bonds offered by issuers to non-residents and not deposited at depository institutions in the territory of Vietnam (below referred to as international bonds).

2. Issuer means a borrower of foreign loans in the form of issued international bonds not eligible for Government guarantee.

3. Issued international bond amount means a foreign medium-term or long-term loan in the form of international bonds issued by an issuer not eligible for Government guarantee.

4. Bank providing account services means a credit institution or foreign bank branch in Vietnam licensed to trade in foreign exchange and provide foreign exchange services in accordance with Vietnam’s law where issuers open and use foreign-loan borrowing and repayment accounts to issue bond amounts.

5. Bond price determination date means a date on which an issuer and investors placing orders for bond purchase agree on an interest rate applicable to bonds and amount of bonds to be issued.

6. Issuance limit certification paper means a document issued by the State Bank of Vietnam (below referred to as the State Bank) notifying that the value of a to-be-issued bond amount is within the total limit of foreign commercial loans under the self-borrowing and self-repayment mechanism approved annually by the Prime Minister.

7. Lender representative means an organization representing bond holders in the implementation of contents related to international bonds of the issuer.

Article 4. Principles of dossier making and sending

1. An issuer shall send 1 set of dossier for performance of administrative procedures as specified in this Circular by one of the following 3 modes:

a/ Submitting the dossier online via the National Public Service Portal or on the State Bank’s Public Service Portal;

b/ Hand-delivering the dossier at the single-window division of the State Bank;

c/ Sending the dossier by post.

2. In case of sending dossiers online via the National Public Service Portal or on the State Bank’s Public Service Portal, e-dossiers may bear digital signatures in accordance with regulations on performance of administrative procedures in the electronic environment. In case the National Public Service Portal or the State Bank’s Public Service Portal encounters an incident or an error, making it unable to receive and exchange electronic information, the filling in, sending and receipt of dossiers, notification of dossier processing results, and exchange of information and giving of feedback shall be carried out via postal services or directly at the single-window division of the State Bank.

3. Documents included in e-dossiers are electronic files scanned from primary-source documents or originals (PDF files), except registration applications for international bond issuance and registration applications for change of to-be-issued international bond amounts declared on the State Bank’s Public Service Portal.

4. Documents included in a paper dossier may take the form of primary-source documents, originals, or copies with issuers’ certification that such copies are made from the originals.

5. Vietnamese translation of a foreign-language document means a translation made by an issuer or by a translation service-providing organization. The issuer shall certify the accuracy of the Vietnamese translation and foreign-language contents.

6. Issuers shall take responsibility for the accuracy and truthfulness of information mentioned in dossiers for registration or registration of change of to-be-issued international bond amounts.

Chapter II

PROCEDURES FOR REGISTRATION OF TO-BE-ISSUED INTERNATIONAL BOND AMOUNTS

Article 5. Bases for considering and certifying the registration of to-be-issued international bond amounts

1. The value of a to-be-issued international bond amount is within the total limit of foreign commercial loans under the self-borrowing and self-repayment mechanism approved annually by the Prime Minister.

2. Issuers fully comply with current regulations on foreign loan borrowing conditions and foreign exchange management for foreign loan borrowing and repayment activities not eligible for Government guarantee, and current regulations on the offering of corporate bonds to the international market.

Article 6. Dossiers for registration of to-be-issued international bond amounts

A dossier for registration of a to-be-issued international bond amount must comprise:

1. A registration application for a to-be-issued international bond amount, made according to the form provided in Appendix 01 to this Circular.

2. Legal papers of the issuer, including a copy of the enterprise registration certificate, establishment license or investment certificate and amending documents (if any).

3. The original or a copy of the competent authority-approved international bond issuance plan, which complies with current regulations on conditions for the offering of corporate bonds to the international market.

4. The original or a copy of the competent authority’s document approving the international bond issuance plan in accordance with regulations on corporate bond issuance, the law on enterprises, and the issuer’s charter.

5. The original or a copy of the competent authority-approved document under current regulations, for investment programs and projects of the issuer; a plan to increase the operating capital; restructuring of the issuer’s debts, which shall be covered by the proceeds from international bond issuance.

6. A report on contents related to satisfaction of the requirement on foreign investors’ holding rate in accordance with law (applicable to issuers of convertible bonds or warrant-linked bonds).

7. A report on satisfaction of the criterion on foreign loan limit under regulations on conditions for borrowing of foreign loans (if any); satisfaction of requirements on financial prudence and operational prudence as provided by specialized laws at the end of the 3-month period preceding the date of submission of the dossier (issuers being credit institutions shall make reports according to the form provided in Appendix 02 to this Circular).

8. A copy of the State Securities Commission of Vietnam’s document approving the offering of bonds to the international market (applicable to issuers being public companies, securities companies and securities investment fund management companies).

9. A foreign-language copy and Vietnamese translation of the agreement related to the bond issuance, including information on terms and conditions of bonds to be issued; information on the collection of bond sales, payment of bond principals, interests and charges; the organization being the lender representative (if any); and related agents, depending on the structure of the issuance.

10. Foreign-language copies and Vietnamese translations of other contracts or agreements (if any) signed between the issuer and the foreign partner binding the obligation to pay charges related to the to-be-issued amount.

Article 7. Order of carrying out procedures for registration of to-be-issued international bond amounts

1. Before making the bond offering:

a/ After the international bond issuance plan is approved by a competent authority in accordance with law and at least 20 working days before the issuer makes a bond offering on the international market, the issuer shall send 1 set of dossier for registration of a to-be-issued international bond amount as specified in Article 6 of this Circular (except the dossier’s components mentioned in Clauses 8, 9 and 10) to the State Bank (the Department of Foreign Exchange Management);

b/ Within 8 working days after receiving a complete and valid dossier, the State Bank shall issue a document certifying or refusing to certify the issuance limit. In case of refusal, the State Bank shall issue a written reply, clearly stating the reason.

2. Upon making the bond offering:

a/ In case the value of a to-be-issued bond amount is within the total limit of foreign commercial loans subject to the self-borrowing and self-repayment mechanism approved annually by the Prime Minister, after selecting issuance underwriters, agents and legal consultants related to the to-be-issued bond amount and before the bond price determination date, the issuer shall submit the dossier’s components specified in Clauses 8, 9 and 10, Article 6 of this Circular. For the dossier’s components specified in Clauses 9 and 10, Article 6 of this Circular, the issuer shall send final drafts with detailed regulations on relevant conditions of the bond (below referred to as preliminary dossier);

b/ After the dossier’s components specified in Clauses 9 and 10, Article 6 of this Circular are officially signed between related parties, the issuer shall complete the dossier based on the official dossier’s components specified in Clauses 9 and 10, Article 6 of this Circular. In case results of the bond issuance lead to a change in the information in Part Three of the registration application for the to-be-issued international bond amount, the issuer shall update such information and re-submit the application.

In case contents of the officially signed contracts and agreements are different from those of the drafts sent to the State Bank but not contrary to relevant regulations, the issuer shall send a report clearly stating the differences between the official contracts and agreements and the final drafts in the preliminary dossier sent to the State Bank.

3. Time limit for processing procedures for registration of a to-be-issued bond amount:

a/ Within 10 working days after receiving a complete and valid preliminary dossier for registration of a to-be-issued bond amount, the State Bank shall check the completeness and validity of the dossier. In case it is necessary to clarify, supplement or modify relevant contents of the dossier, the State Bank shall request in writing the issuer to complete the dossier;

b/ Within 2 working days after receiving the official dossier as specified at Point b, Clause 2 of this Article, the State Bank shall issue a document certifying registration of a to-be-issued bond amount according to the form provided in Appendix 04 to this Circular to the issuer. In case of refusal, the State Bank shall issue a written reply, clearly stating the reason.

Article 8. Responsibility for coordination among units of the State Bank when processing dossiers for registration of to-be-issued bond amounts by issuers being credit institutions

1. After receiving a dossier for registration of a to-be-issued bond amount from a credit institution as specified in Clause 1, Article 7 of this Circular, the Department of Foreign Exchange Management shall act as a focal point and coordinate with the Banking Supervision Agency or the State Bank’s provincial-level branch (which is the unit competent to inspect and supervise micro-safety for credit institutions requesting registration of to-be-issued international bond amounts), the Monetary Policy Department and related units of the State Bank in considering and processing the dossier.

2. Within 5 working days after receiving the request from the Department of Foreign Exchange Management:

a/ The Banking Supervision Agency or the State Bank’s provincial-level branch shall provide supervisory opinions on the compliance with regulations on prudential ratios in banking operations of the concerned credit institution. The scope of supervisory opinions cover opinions on separate indicators and consolidated indicators of ratios and limits stated in the credit institution’s report made according to the form provided in Appendix 02 to this Circular;

b/ The Monetary Policy Department and other related units of the State Bank shall provide opinions on contents of the international bond issuance plan that are related to their functions and tasks.

Chapter III

PROCEDURES FOR REGISTRATION OF CHANGE OF TO-BE-ISSUED INTERNATIONAL BOND AMOUNTS

Article 9. Cases requiring registration of change of to-be-issued international bond amounts

1. Except the case specified in Clause 2 of this Article, in case of changing a content related to the to-be-issued international bond amount as stated in the State Bank’s document certifying registration or certifying registration of change of the to-be-issued international bond amount, the issuer shall register such change with the State Bank in accordance with this Circular.

2. The issuer shall only notify the change in writing (by post or hand-delivery) to the State Bank (the Department of Foreign Exchange Management), without having to make registration with regard to the following changes:

a/ Change of the time limit for capital withdrawal and principal payment by no more than 10 working days compared to that stated in the plan certified by the State Bank;

b/ Change of the address of the issuer;

c/ Change of the commercial transaction name of the bank providing account services where the issuer opens a foreign-loan borrowing and repayment account;

d/ Change of the plan on payment of interests and charges on the to-be-issued international bond amount compared to the plan certified by the State Bank in the document certifying registration or certifying registration of change of the to-be-issued international bond amount, without changing the method of determining interests and charges stated in bond terms and conditions. The issuer shall make a table of payable interest and charges for the bank providing account services to have grounds for checking and monitoring upon money transfer;

dd/ Change (increase or decrease) of the withdrawn capital or paid principal, interest or charge amount by no more than 100 monetary units of the foreign-loan currency compared to the amount stated in the document certifying registration or certifying registration of change of the to-be-issued international bond
amount;

e/ Change of the to-be-transferred loan principal amount due to the bonds being converted or swapped into shares, for converted or swapped international bond amounts of public companies, securities companies or securities investment fund management companies;

g/ Change of the actual amount of withdrawn capital or paid loan principal in a specific period that is smaller than the amount stated in the capital withdrawal or debt repayment plan in the document certifying registration or certifying registration of change of the to-be-issued international bond amount.

3. With regard to the change mentioned at Point g, Clause 2 of this Article, before withdrawing capital or repaying the remaining amount for the period in which the change occurs, the issuer shall register the change in the capital withdrawal or debt repayment plan for the remaining amount under Articles 10 and 11 of this Circular.

Article 10. Dossiers for registration of change of to-be-issued international bond amounts

A dossier for registration of change of a to-be-issued international bond amount must comprise:

1. A registration application for change of a to-be-issued international bond amount, made according to the form provided in Appendix 03 to this Circular.

2. Foreign-language copies and Vietnamese translations of the signed agreements on the change (if any).

3. A copy of the competent authority’s written approval of the issuer’s international bond issuance plan with regard to the change (if any).

Article 11. Order of carrying out procedures for registration of change of to-be-issued international bond amounts

1. Within 30 days after signing an agreement on the change or before the time of implementation of the change (in case the change does not require the signing of an agreement but must still ensure conformity with contracts and agreements related to the to-be-issued amount), the issuer shall send 1 set of dossier for registration for change of a to-be-issued international bond amount as specified in Article 10 of this Circular to the State Bank (the Department of Foreign Exchange Management).

2. Within 10 working days after receiving the dossier, if more information is needed to have sufficient grounds for certifying registration of the change or in case of refusal to certify registration of the change, the State Bank shall request in writing the issuer to supplement necessary documents and information.

3. The State Bank shall issue a document certifying or refusing to certify the registration of the change of the to-be-issued international bond amount within 15 working days after receiving a complete and valid dossier from the issuer. In case of refusal, the State Bank shall issue a written reply, clearly stating the reason.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 12. Effect

1. This Circular takes effect on September 15, 2022, except Clause 2 of this Article.

2. The provisions on how to submit online dossiers at the National Public Service Portal and the State Bank’s Public Service Portal will take effect on January 1, 2023.

3. From the effective date of this Circular, the following documents and provisions will cease to be effective:

a/ The State Bank Governor’s Circular No. 17/2013/TT-NHNN of July 16, 2013, guiding foreign exchange management for the issuance of international bonds by enterprises not eligible for Government guarantee;

b/ Article 12 of the State Bank Governor’s Circular No. 29/2015/TT-NHNN, amending and supplementing a number of legal documents of the State Bank of Vietnam providing the composition of dossiers with certified copies of papers and documents.

Article 13. Transitional provisions

For dossiers for registration of issuance limits, registration of to-be-issued amounts or registration of change of to-be-issued amounts that are received by the State Bank before the effective date of this Circular but have not yet been considered and processed, they must comply with the State Bank Governor’s Circular No. 17/2013/TT-NHNN of July 16, 2013, guiding foreign management exchange for the international issuance of bonds by enterprises not eligible for Government guarantee.

Article 14. Responsibility for organization of implementation

The Chief of the Office, the Director of the Department of Foreign Exchange Management and heads of units under the State Bank and issuers shall organize the implementation of this Circular.-

For the State Bank Governor
Deputy Governor
PHAM THANH HA

* The Appendices to this Circular are not translated.