Mobilized capital and noteworthy issues for foreign investors

Mobilized capital and noteworthy issues for foreign investors

To prepare for investing in a certain project, any investor needs a specific financial plan which specifies the amount of capital expected to be invested in the project. 

Investment capital is a fairly common term. According to the definition of the Law on Investment, Investment capital means money and other assets as defined by the civil law and treaties to which the Socialist Republic of Vietnam is a contracting party which are used to carry out business investment activities.

According to Clause 6, Article 40 of the Law on Investment, investment capital of the investment project includes capital contributed by the investor and mobilized capital. 

– Capital contributed by the investor means the amount of capital that the investor has committed to contribute to any project within a specific period as stated in the application for an Investment Registration Certificate with respect to such project. 

– Mobilized capital means the amount of capital that the investor is expected to raise in the future without the investor making capital contribution to the company. 

1. Issues to note about mobilized capital

– Investors can borrow capital from the following: 

  • Owners/shareholders/capital contributors of the project;
  • Credit institutions;
  • Other sources.

The amount of mobilized capital will be recorded on the Investment Registration Certificate when the Investor applies for such Investment Registration Certificate. 

– The amount of capital raised from the investors in medium and longterm loans must not exceed the amount of mobilized capital specified in the Investment Registration Certificate. 

The amount of capital raised from the investorsshort-term loans (with the term of less than 1 year) are not limited to the registered amount of mobilized capital. 

Investors can register to adjust the amount of mobilized capital in each period depending on the demand of capital for the project. 

When registering the amount of mobilized capital with the provincial/municipal Department of Planning and Investment, a Investor shall provide the following documents for the Department of Planning and Investment to consider and approve: 

  • The intended lender’s commitment to lending capital (the commitment of the owner; shareholder, capital contributor, credit institution, or a third party from which the investor intends to borrow capital);
  • Documents proving the financial capacity of the intended lender (for example, financial statements or bank account statements);
  • A loan agreement for the intended loan. 

2. Notes on capital mobilized from abroad 

2.1. Bank account used for revenue, expenditure and debt repayment

– Where the borrower is a foreign direct investment enterprise:

Pursuant to Article 6 of Circular 06/2019/TT-NHNN, the revenue, expenditure and debt repayment related to overseas loans will be made using the direct investment capital account. 

In the case where the currency of overseas loans is not the same used by the foreign direct investment enterprise to open a direct investment capital account, the foreign direct investment enterprise are allowed to open more accounts for overseas borrowing and debt repayment in the loan currency at the authorized bank where the direct investment capital account has been opened in order to carry out lawful revenue and expenditure transactions related to the overseas loans under the law on borrowing and repaying overseas debts of enterprises.

– Where the borrower is not a foreign direct investment enterprise:

Enterprises must open accounts for borrowing and repaying overseas debts at banks that provides account services in order to conduct money transfers related to overseas loans (withdrawal of capital, repayment of principal and interest). Each overseas loan can only be made at one bank that provides account services. Any borrower can use one account in relation to one or more than one overseas loan. 

2.2. Resgister a loan with the State Bank 

Loans that must be registered with the State Bank include: 

– Overseas medium and long-term loans. 

– Short-term loans with the extension of principal repayment, the total term of which is over 01 year. 

– Short-term loans without extension agreement but with principal balance (including principally entered interest) on the date of full 01 year from the first capital disbursement, unless the borrower pay that principal within 30 working days from the date of full 1 year from the first capital disbursement. 

In the case where any enterprise that is subject to loan registration with the State bank fails to do the same, it may be fined an amount of between VND 40,000,000 and VND 60,000,000. 

The above is an overview of issues investors should pay attention to regarding mobilized capital. Investors should carefully consider raising capital in accordance with Vietnamese law to avoid unnecessary violations. 

Disclaimer:

This article is for general information only and is not a substitute for legal advice. Apolat Legal is a Vietnamese law firm with experience and capacity to advise on matters related to Investment. Please click here to learn more about our services and contact our lawyers in Vietnam for advice via email info@apolatlegal.com.

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