Thông tư 10/2022/TT-NHNN của Ngân hàng Nhà nước Việt Nam hướng dẫn về quản lý ngoại hối đối với việc phát hành trái phiếu ra thị trường quốc tế của doanh nghiệp không được Chính phủ bảo lãnh

CIRCULAR

PROVIDING GUIDELINES FOR MANAGEMENT OF FOREIGN EXCHANGE FOR ENTERPRISES’ ISSUANCE OF BONDS WITHOUT GOVERNMENT GUARANTEE IN INTERNATIONAL MARKET

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

Pursuant to the Law on Credit Institutions dated June 16, 2010 and the Law dated November 20, 2017 on amendments the Law on Credit Institutions;

Pursuant to the Ordinance on Foreign Exchange dated December 13, 2005 and the Ordinance on amendments to the Ordinance on Foreign Exchange dated March 18, 2013;

Pursuant to the Government’s Decree No. 219/2013/ND-CP dated December 26, 2013 management of enterprises’ foreign loans and repayment of foreign debts without government guarantee;

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

Pursuant to the Government's Decree No. 16/2017/ND-CP dated February 17, 2017 prescribing functions, tasks, powers and organizational structure of the State bank of Vietnam;

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The Governor of the State Bank of Vietnam promulgates a Circular providing guidelines for management of foreign exchange for enterprises’ issuance of bonds without government guarantee in international market.  

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Circular provides guidelines on procedures for registration and registration of changes in issue of bonds in the international market by enterprises without the government guarantee.

2. Other contents about management of foreign exchange for foreign loans received through issuance of bonds in the international market shall be carried out in accordance with regulations on management of foreign exchange for enterprises’ foreign borrowing and debt repayment.

Article 2. Regulated entities

1. Issuers that are residents, including joint-stock companies and limited liability companies that are duly established and operating in accordance with the law of Vietnam.

2. Other organizations and individuals involved in enterprises’ issuance of bonds without the government guarantee in the international market.

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For the purposes of this Circular, the terms below shall be construed as follows:

1. “international bond” means a type of bond that is issued in the international market by an issuer to non-residents, and is not deposited at any depository institutions in the territory of Vietnam.

2. “issuer” means the borrower of a foreign loan which is received through issuance of international bonds without the government guarantee.

3. “international bond issue” means a foreign medium or long-term loan which is received through issuance of international bonds by an issuer without the government guarantee.

4. “account service provider” means a credit institution or foreign bank branch that is operating in Vietnam and licensed to provide foreign exchange services in accordance with the law of Vietnam and where the issuer opens a foreign borrowing and debt repayment account to serve its bond issue.

5. “value date" means the day on which the issuer and subscribers agree to the interest rate and the number of bonds issued.

6. “issuance limit certification” means a written certification given by the State Bank of Vietnam (hereinafter referred to as “SBV”) to notify the value of the bond issue which does not exceed the total limit on conventional foreign loans annually approved by the Prime Minister of Vietnam.

7. “lender’s representative” means the organization that represents bondholders to perform contents of work about the issuer’s international bond.

Article 4. Rules for preparing and submitting applications

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a) Online submission via the National public service portal or the SBV’s public service portal;

b) Direct submission at the SBV’s single-window section;

c) Submission by post.

2. In case an application is submitted online via the National public service portal or the SBV’s public service portal, digital signature may be used for the electronic application in accordance with regulations of law on completion of administrative procedures by electronic means. If the National public service portal or the SBV’s public service portal failed or encountered a problem, and thus is unable to receive and exchange electronic information, declaration, sending, receipt, exchange and response to information, and return of results will be made by post or directly at the SBV’s single-window section.

3. The documents included in the electronic application are scanned copies of the original or physical original documents (in PFD format), except the application for registration of international bond issue and the application for registration of changes in the international bond issue which have been filled out on the SBV’s public service portal.

4. The documents included in the physical application are original or physical original documents or copies of the original physical documents bearing the issuer’s certification.

5. Vietnamese translations of documents in foreign languages are those made by the issuer itself or a translation service provider. The issuer shall certify the accuracy of Vietnamese translations compared to the original documents in foreign languages.

6. The issuer shall assume responsibility for the accuracy and truthfulness of the documents included in the application for registration or registration of changes in the international bond issue.

Chapter II

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Article 5. Grounds for considering and certifying registration of international bond issue

1. The value of the international bond issue must not exceed the total limit on conventional foreign loans annually approved by the Prime Minister of Vietnam.

2. The issuer is required to comply with and meet all foreign borrowing and foreign exchange management requirements in respect of borrowing and repayment of foreign debts without the government guarantee, and other current regulations of law on offering of corporate bonds in the international market.

Article 6. Application for registration of international bond issue

An application for registration of international bond issue includes:

1. The application form made according to Appendix 01 enclosed herewith.

2. The issuer’s legal documents, including: Copies of enterprise registration certificate, establishment license or investment certificate and their amending documents (if any).

3. The original or copy of the international bond issuance plan which has been approved by competent authorities and meets all requirements for offering of corporate bonds in the international market.

4. The original or copy of the written approval for the international bond issuance plan given by competent authorities in accordance with regulations of the Law on issuance of corporate bonds, the Law on Enterprises, and the issuer’s charter.

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6. The report on implementation of regulations on holdings of foreign investors (in case of issuance of convertible bonds or warrant-linked bonds).

7. The reports on compliance with foreign borrowing limit as one of the foreign borrowing requirements (if any); maintenance of prudential ratios and limits as prescribed by specialized laws as at the end of the last 03 months before the submission date (the issuer that is a credit institution shall submit these reports according to Appendix 02 enclosed herewith).

8. The copy of the written approval given by the State Securities Commission of Vietnam (“SSC”) for the offering of bonds in the international market (in case the issuer is a public company, securities company or securities investment fund management company).

9. The copy in foreign language and the Vietnamese translation of the written agreement on the bond issue which includes information on terms and conditions of the bond issued, receipt of payments for bonds, payment of bond principal, interests and fees, the lender’s representative (if any), and relevant agents depending on the structure of each bond issue.

10. The copies in foreign language and the Vietnamese translations of contracts or other agreements (if any), containing binding obligations to pay fees on the bond issue, signed by and between the issuer and foreign party.

Article 7. Procedures for registration of international bond issues

1. Procedures completed before offering bonds:

a) After the international bond issuance plan has been approved by competent authorities in accordance with regulations of law and at least 20 business days before the issuer offers bonds in the international market, the issuer shall submit an application for registration of international bond issue containing the documents prescribed in Article 6 of this Circular (except the documents prescribed in Clauses 8, 9 and 10) to the SBV (Foreign Exchange Management Department);

b) Within 08 business days from the receipt of the adequate and valid application, the SBV shall give or refuse to give an issuance limit certification. In case of refusal, the SBV shall give its written response indicating reasons for such refusal.

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a) In case the value of the bond issue does not exceed total limit on conventional foreign loans annually approved by the Prime Minister of Vietnam, after selecting the underwriter, agent and legal counseling organization for the bond issue and before the value date, the issuer shall submit the documents specified in Clauses 8, 9, and 10 Article 6 of this Circular. With respect to the documents specified in Clause 9 and Clause 10 Article 6 of this Circular, the issuer shall send their final drafts containing detailed terms and conditions of the bond (hereinafter referred to as "preliminary application");

b) After the related parties have been officially concluded the documents specified in Clause 9 and Clause 10 Article 6 of this Circular, the issuer shall complete the application for registration of the international bond issue including the official documents specified in Clause 9 and Clause 10 Article 6 of this Circular. In case there are changes in the information in Part 3 of the application due to the bond issue result, the issuer shall re-submit the application containing updated information.

In case there are the discrepancies between contents of the official contracts and agreements which are still conformable with relevant laws and/or contents of the final drafts included in the preliminary application submitted to the SBV, the issuer shall submit reports on such discrepancies.

3. Application processing time limit:

a) Within 10 business days from the receipt of an adequate and valid preliminary application, the SBV shall examine the adequacy and validity of the received application. If any clarifications of or revisions to the application are required, the SBV shall request the issuer in writing to complete its application;

b) Within 02 business days from the receipt of the official documents as prescribed in Point b Clause 2 of this Article, the SBV shall make a written certification of registration of international bond issue according to Appendix 04 enclosed herewith, and send it to the issuer. If an application is refused, the SBV shall provide reasons for such refusal in writing.

Article 8. Cooperation between SBV’s affiliated units in processing applications for registration of international bond issues of issuers that are credit institutions

1. After receiving the application for registration of international bond issue from the credit institution as prescribed in Clause 1 Article 7 of this Circular, the Foreign Exchange Management Department shall play the leading role and cooperate with the SBV Banking Supervision Agency or SBV’s provincial branch (that is competent to carry out microprudential supervision of the credit institution), the Financial Policy Department and other relevant units affiliated to the SBV in considering and processing the received application.

2. Within 05 business days from the receipt of the request from the Foreign Exchange Management Department:   

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b) The the Financial Policy Department and other relevant units affiliated to the SBV shall provide their opinions about contents of the international bond issue plan within the ambit of their functions and tasks.

Chapter III

PROCEDURES FOR REGISTRATION OF CHANGES IN AN INTERNATIONAL BOND ISSUE

Article 9. Cases in which registration of changes in international bond issue is compulsory

1. Except the provisions of Clause 2 of this Article, if there are any changes in contents about the international bond issue specified in SBV’s certification of registration or registration of changes in international bond issue, the issuer is required to submit application for registration of changes in international bond issue to the SBV according to regulations of this Circular.

2. The issuer shall only give a written notification (by post or directly) to the SBV (via the Foreign Exchange Management Department) without applying for registration of the following changes:

a) Changes in the time limit for fund withdrawal or principal debt repayment by no more than 10 business days compared to that specified in the plan certified by the SBV;  

b) Changes in address of the issuer;

c) Change of business name of the account service provider where the issuer’s foreign borrowing and debt repayment account is opened;

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dd) Changes (increase or decrease) in the amount of fund withdrawn or payment of principal, interest, fees and charges up to 100 units of the foreign borrowing currency compared to those specified in the SBV's certification of registration or registration of changes in the international bond issue;

e) Changes in amounts transferred for paying principal in case bonds are converted or swapped into shares in respect of the international bond issue containing conversion or swapping factors of a public company, securities company or securities investment fund management company;

g) Changes in the actual amount of fund withdrawn or principal repayment of a specific period which is lower than that specified in the fund withdrawal and debt repayment plan enclosed with the SBV's certification of registration or registration of changes in the international bond issue.

3. With regard to the changes specified in Point g Clause 2 of this Article, before withdrawing fund or repaying remaining debt amount of the period in which the change occurs, the issuer shall apply for registration of changes in the fund withdrawal and debt repayment plan for the remaining amounts according to Articles 10 and 11 of this Circular.

Article 10. Application for registration of changes in international bond issue

An application for registration of changes in international bond issue includes:

1. The application form made according to Appendix 03 enclosed herewith.

2. Copies of documents in foreign languages and Vietnamese translations of the signed agreements on changes (if any).

3. The copy of the written approval for the international bond issuance plan given by competent authorities in respect of changes in the international bond issue (if any).

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1. Within 30 days from the conclusion of the agreement on change or before making the change (in case the conclusion of the agreement on change is not required, provided the change is conformable with other contracts or agreements on the bond issue), the issuer shall submit an application for registration of changes in the international bond issue which contains the documents specified in Article 10 of this Article to the SBV (via the Foreign Exchange Management Department).

2. Within 10 business days from the receipt of the application, if additional information establishing grounds for certification or refusal of the application is required, the SBV shall request the issuer in writing to provide necessary information and documents.

3. Within 15 business days from the receipt of the adequate and valid application, the SBV shall give certification or refuse to give certification of registration of changes in the international bond issue. If an application is refused, the SBV shall provide reasons for such refusal in writing.

Chapter IV

IMPLEMENTATION

Article 12. Effect

1. This Circular comes into force from September 15, 2022, except regulations in Clause 2 of this Article.

2. Regulations on online submission of applications via the National public service portal or the SBV’s public service portal come into force from January 01, 2023.

3. The following regulations and documents shall cease to have effect from the effective date of this Circular:

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b) Article 12 of the Circular No. 29/2015/TT-NHNN dated December 22, 2015 by the SBV’s Governor amending certain SBV’s regulations on applications containing certified copies of documents.

Article 13. Transition 

Applications for registration of issuance limit, applications for registration or registration of changes in bond issues which have been received by SBV before the effective date of this Circular but not yet processed shall be considered and processed in accordance with the provisions of the Circular No. 17/2013/TT-NHNN dated July 16, 2013 of the SBV’s Governor.

Article 14. Implementation

The Chief of Office, the Director of the Foreign Exchange Management Department, and heads of SBV’s affiliated units, and issuers shall be responsible for the implementation of this Circular.

PP. GOVERNOR
DEPUTY GOVERNOR




Pham Thanh Ha