CIRCULAR

GUIDING THE IMPLEMENTATION OF SEVERAL CONTENTS STIPULATED IN THE DECREE NO. 16/2001/ND-CP DATED 2 MAY 2001 OF THE GOVERNMENT ON THE ORGANISATION AND OPERATION OF FINANCE LEASING COMPANIES" AND THE DECREE NO. 65/2005/ND-CP DATED 19 MAY 2005 OF THE GOVERNMENT PROVIDING FOR THE AMENDMENT, SUPPLEMENT OF SEVERAL ARTICLES OF THE DECREE NO. 16/2001/ND-CP DATED 2 MAY 2001 OF THE GOVERNMENT ON THE ORGANIZATION AND OPERATION OF FINANCE LEASING COMPANIES

Pursuant to the Decree No. 16/2001/ND-CP dated 2 May 2001 of the Government on the organisation and operation of Finance Leasing Companies" and the Decree No. 65/2005/ND-CP dated 19 May 2005 of the Government providing for the amendment, supplement of several articles of the Decree No. 16/2001/ND-CP dated 2 May 2001 of the Government on the organization and operation of Finance Leasing Companies, the State Bank of Vietnam (hereinafter referred to as the State Bank) provides the guidance on the implementation of several contents stipulated in these Decrees as follows:

Section I.

GENERAL PROVISIONS

1. Interpretation:

In this Circular, following terms shall be construed as follows:

1.1 The Lessee shall be organisations operating in Vietnam, individuals living and working in Vietnam that directly use leased assets for their operating purposes, including:

...

...

...

b. Enterprises;

c. Others organisations which are entitled to borrow funds from credit institutions.

1.2. Foreign credit institutions shall be a bank, finance company, foreign Finance Leasing Company or an international finance organisation which is established under the foreign laws or international laws, makes capital contribution to a joint-venture Finance Leasing Company, an 100% foreign owned Finance Leasing Company.

1.3. Legal capital shall be the minimum charter capital required by provisions of the Government to establish a finance leasing company.

1.4. Charter capital shall be the capital that is provided by the State, credit institutions with subsidiary Finance Leasing Companies, foreign credit institutions or contributed by or from the share purchase by organisations, individuals and stated in the charter of a Finance Leasing Company.

1.5. Founding member shall be organisations which, individuals who have taken part in the approval of the first charter of a finance leasing company.

2. Types of Finance Leasing Companies:

2.1. State-owned Finance Leasing Company shall be a Finance Leasing Company which is invested, established and the business activity of which is managed by the State. The issuance of the establishment and operation licence to the State-owned Finance Leasing Company shall be performed under a separate guidance of the State Bank.

2.2. Joint-stock Finance Leasing Company shall be a Finance Leasing Company which is established in the form of a joint-stock company where organisations and individuals jointly contribute capital in accordance with the provisions of the State Bank and other provisions of applicable law.

...

...

...

2.4. Joint venture Finance Leasing Company shall be a Finance Leasing Company which is established on the basis of capital contributed by the Vietnamese party which includes one or more credit institutions, Vietnamese enterprises and the foreign party which includes one or more foreign credit institutions, on the basis of a joint-venture finance leasing contract. The Vietnamese party must have at least one Vietnamese credit institution to be the member of the joint venture finance leasing company.

2.5. 100% foreign owned Finance Leasing Company shall be a Finance Leasing Company established from capital contributed by one or more foreign credit institutions in accordance with provisions of applicable laws of Vietnam.

3. The operation duration of a Finance Leasing Company in Vietnam shall be 50 (fifty) years at the maximum. Where a Finance Leasing Company wishes to extend its operation duration, it must be approved by the State Bank. Each time of extension shall not be in excess of 50 (fifty) years.

For Finance Leasing Companies that were established and granted with the operation licence prior to the effective date of the Decree No. 16/2001/ND-CP dated 2 May 2001 of the Government, their operation duration shall be applied as provided for in the granted operation licence.

4. Form of charter capital contribution

The charter capital of a Finance Leasing Company shall be contributed in the following forms:

4.1. In cash:

a. For State-owned Finance Leasing Companies, Finance Leasing Companies, which are a subsidiary of credit institutions and joint-stock Finance Leasing Companies, the charter capital shall be contributed in VND.

b. For joint-venture Finance Leasing Companies and 100% foreign owned Finance Leasing Companies: foreign parties in the company shall be entitled to make contribution to the charter capital either in foreign currency or in VND which is originated from the lawful investment in Vietnam. Vietnamese parties to a joint venture Finance Leasing Company may make capital contribution either in VND or in foreign currency. In case where the parties make capital contribution in VND or in foreign currency which is not USD, the amounts used for the charter capital contribution shall be converted to USD at the average exchange rate in the inter-bank foreign currency market announced by the State Bank at the time the capital contribution is made.

...

...

...

5. Ratios of charter capital contribution, transfer of contributed capital, profit and risk distribution of a joint-venture Finance Leasing Company and 100% foreign owned finance leasing company:

5.1. Ratio of charter capital contribution: The ratio of charter capital contribution of the foreign party and the Vietnamese party to a joint-venture Finance Leasing Company shall be agreed upon by the parties and approved by the State Bank of Vietnam. The capital contribution of the foreign party shall not be less than 30% of the charter capital of the company.

5.2. Transfer of contributed capital:

a. The Vietnamese party and the foreign party to a joint-venture Finance Leasing Company shall be entitled to transfer their contributed capital, but they must ensure the ratio of charter capital contribution to be in compliance with the provisions at the point 5.1 of this Circular and the transfer priority must be given to the parties to the joint venture. In case of transfer to other organization, the transfer conditions shall not be more favourable than for the case of transfer to the parties to the joint venture. The transfer of contributed capital must be agreed upon by the parties to the joint venture finance leasing company.

b. 100% foreign owned Finance Leasing Companies shall be entitled to transfer their contributed capital after obtaining the approval from the State Bank.

c. Where the capital transfer of a joint venture Finance Leasing Company and an100% foreign owned Finance Leasing Company results in the change of the type of a finance leasing company, the Company shall carry out the adjustment in line with the company type as provided for.

d. In case where the capital transfer of a Finance Leasing Company results in profits, the transferor shall be subject to taxes in accordance with provisions of applicable laws of Vietnam.

5.3. Profits distribution and risks sharing: Parties to a joint venture Finance Leasing Company shall distribute the profits and share the risks of the company at their capital contribution ratio, unless otherwise provided for by parties in the joint-venture Finance Leasing Company contract and in line with applicable laws of Vietnam.

Section II

...

...

...

6. Conditions for the issuance of the establishment and operation license to a Finance Leasing Company (hereinafter referred to as licence):

6.1. General conditions:

a. There is a need for finance leasing activities in areas, where a Finance Leasing Company is to operate;

b. There is sufficient legal capital in accordance with provisions of current laws;

c. The founding members are organizations, individuals with prestige and financial capacity;

d. The directors, executive officer possess full capacity for civil acts and professional qualifications in line with the business activity of the Finance Leasing Company and applicable provisions of the State Bank;

e. Availability of a Draft Charter on organisation and operation in line with the Law on Credit Institutions, the Decree of the Government on the organisation and operation of Finance Leasing Companies and other provisions of the applicable laws;

g. Availability of a feasible business plan;

h. The mother credit institution has operated for at least 3 (three) years;

...

...

...

a. Being permitted to engage in banking or finance leasing activities by foreign competent authorities;

b. Being permitted to do business in Vietnam by foreign competent authorities.

7. The application file for an establishment and operation license of Finance Leasing Companies shall include:

7.1. An application for the establishment and operation license;

a. For Finance Leasing Companies, which are a subsidiary of credit institutions: the application shall be signed by the Chairman of the Board of Directors of the credit institution or the person authorised by the Chairman of the Board of Directors (Appendix 1a).

b. For joint-stock Finance Leasing Companies: the application shall be signed by the Chairman of the Board of Directors or a member of the Board of Directors who is authorized by the Chairman of the Board of Directors (Appendix 1b).

c. For joint-venture Finance Leasing Companies, 100% foreign owned Finance Leasing Companies: the application shall be signed by the legal representative or authorised representative of funds contributing parties (Appendix 1c).

7.2. Draft Charter: Charter of a Finance Leasing Company shall specify the following main contents:

a. Name and place where the head-office of the Finance Leasing Company is to be located;

...

...

...

c. Duration of operation;

d. Charter capital and mode of capital contribution;

e. Assignment, authority of the Board of Directors, Controllers Committee and General Director (Director);

g. Mode of election, appointment and removal of members of the Board of Directors, General Director (Director) and Controllers Committee;

h. Legal representative of the Finance Leasing Company

i. Rights and responsibilities of shareholders;

k. Principles of finance, accounting, inspection, control and internal audit;

l. Cases of dissolution and procedures of dissolution;

m. Procedures of Charter amendment.

...

...

...

7.4. List, curriculum vitae and certificates evidencing the qualification and professional capability of the founding members, members of the Board of Directors, and the Controllers and the General Director (Director) of the Finance Leasing Company (the curriculum vitae shall be declared in accordance with the form in Appendix 2 for individuals being Vietnamese, and declared in accordance with provisions of native country or of the country where their nationalities are subject to for foreigners)

7.5. The schedule of charter capital contribution, a list and commitment of the charter capital contribution level of the parties;

7.6. Financial conditions and other information relating to major shareholders (applicable to joint stock Finance Leasing Companies);

7.7. Approval by People's Committee in province, city under the central Governments management of the location where the Head-office of a Finance Leasing Company is to be located.

8. In addition to the documents provided for at point 7, Section II of this Circular, the application file for the establishment and operation license, in respect of a Finance Leasing Company, which is a subsidiary of credit institution, shall be attached by following documents:

8.1. Document signed by the Chairman of the Board of Directors of the credit institution or the person authorised by the Chairman of the Board of Directors of the credit institution on the source and level of the charter capital to be extended to the finance leasing company.

8.2. Legal documents relating to a mother credit institution shall include:

a. Decision on the establishment or the establishment and operation licence, business registration certificate which is issued from the establishment and through amendments, supplements;

b. Current Charter;

...

...

...

9. In addition to the documents provided for in point 7, Section II of this Article, the application file for the establishment and operation license of a joint-venture finance leasing company, an 100% foreign owned Finance Leasing Company shall be attached by following documents:

9.1. Charters of funds contributing parties;

9.2. Business Licences of funds contributing parties;

9.3. Written document of the competent foreign authority permitting the foreign party to engage in business activities in Vietnam in form of a joint-venture finance leasing company, 100% foreign owned finance leasing company. In case where this permission is not required by applicable laws of the foreign country, a certification of competent authority to this extent must be available.

9.4. Audited balance sheets, profit and loss statements and performance reports of the most recent 3 years of funds contributing parties

9.5. Draft of joint-venture finance leasing contract in case of a joint-venture finance leasing company. The draft of joint-venture finance leasing contract shall consist of following main contents:

a. Name, address of the joint-venture finance leasing company;

b. Names, addresses, representatives of parties to the joint-venture;

c. Operation duration of the joint-venture;

...

...

...

e. Rights and responsibilities of parties;

g. Number and proportion of each partys members in the Board of Directors, Controller Committee, Management Board of the joint-venture;

h. Principles of accounting, reporting, setting up and use of funds, profit and loss distribution to parties in the joint-venture;

i. Procedures for dispute settlement between parties which arise from the implementation of joint-venture finance leasing contract; procedures in respect of liquidation, dissolution, integration of the joint-venture finance leasing company;

k. Conditions for the amendment, supplement of the joint-venture finance leasing contract.

10. Sequences, procedures for the submission of application file for licence

10.1. In respect of a joint-stock Finance Leasing Company, application file for licence shall be made in 03 (three) sets and sent to the State Banks branch in province, city under the central Governments management where the company is to be located.

10.2. In respect of a Finance Leasing Company, which is a subsidiary of a credit institution, application file for licence shall be made in 2 (two) sets and sent to the State Bank.

10.3. In respect of a joint-venture Finance Leasing Company and an 100% foreign owned Finance Leasing Company, application file for licence shall be made in 02 (two) sets (one in Vietnamese and one in English or French) and sent to the State Bank.

...

...

...

10.5. For the application file mentioned in the above point 10.3: the file set in foreign language must be the original or the copy which is certified by the competent authority. Vietnamese copies or translations from foreign languages into Vietnamese must be certified by the Public Notary of Vietnam or by diplomatic representative agency, consulate agency of Vietnam in foreign countries. Translations from Vietnamese into foreign languages shall be certified by the Public Notary of Vietnam or by the institutions that issued that document. Documents that need legalization shall include:

a. Charter of the operation of the institution in foreign country;

b. Licence granted by foreign competent authority that permits foreign credit institutions to engage in banking activity or finance leasing activity;

c. Written documents by foreign competent authority permitting the foreign party to do business in Vietnam in form of a joint venture Finance Leasing Company or 100% foreign owned finance leasing company.

10.6. Time limit for licence consideration:

a. For joint stock Finance Leasing Companies:

- Within a period of 30 (thirty) days from the receipt of sufficient application file for licence, the State Banks branches in provinces, cities under the central Governments management shall consider, appraise and submit an official letter attached to 2 (two) file sets to the Governor of the State Bank for consideration and decision;

- Within a period of 60 (sixty) days from the receipt of sufficient application file for licence submitted by the State Banks branches in provinces, cities under the central Governments management, the Governor of the State Bank shall consider to issue or refuse the issuance of licence. In case of refusal, the State Bank shall give a written explanation thereof.

b. For other Finance Leasing Companies

...

...

...

10.7. Licences granted by the State Bank:

a. Licence for Finance Leasing Companies, which are a subsidiary of credit institutions, and joint-stock Finance Leasing Companies (Appendix 3a);

b. Licence for joint-venture Finance Leasing Companies and 100% foreign owned Finance Leasing Companies (Appendix 3b);

11. Licence fee

11.1. Fee level of each licence issuance (or each licence extension) for Finance Leasing Companies shall be in compliance with the provisions of applicable laws on fee and charge.

11.2. The fee level stipulated in point 11.1 mentioned above shall not be deducted from the charter capital of the Finance Leasing Company and shall not be refunded in any case.

11.3. Within 15 (fifteen) days from the date of licence issuance, Finance Leasing Companies which are granted with a licence shall pay the fee at the Banking Operation Department; Joint stock Finance Leasing Companies shall pay the fee at the State Banks branches in provinces, cities under the central Governments management where their head-offices are to be located.

12. Opening for operation

12.1. A licenced Finance Leasing Company must satisfy following conditions for the opening for operation:

...

...

...

b. Availability of the certificate of business registration;

c. Availability of sufficient charter capital which has been registered;

- The charter capital contributed in money shall be totally transferred to an interest free frozen account opened at the Banking Operation Department or at the State Banks branch in province, city under the central Governments management where the companys head office is to be located (applicable to joint stock Finance Leasing Companies) and the State Bank where the frozen account is maintained shall confirm thereof in writing. After the commencement of operation, the Finance Leasing Companies shall be entitled to release the money amount from the frozen account at the State Bank.

- For the charter capital contributed in other assets, the transfer of the ownership of the assets used for capital contribution to the Finance Leasing Company must be supported by the legal file that certifies thereof in accordance with provisions of applicable laws of Vietnam.

d. Completing the legal document certifying the ownership or the right to use the head office of the Finance Leasing Company in Vietnam.

e. 30 (thirty) days prior to the date of commencement of operation at the minimum, the Finance Leasing Company shall send the State Bank (the Department of Banks and Non bank Credit Institutions) the original or the notarised copy of the following documents:

- A voucher certifying the payment of charter capital in cash to the frozen account;

- A voucher certifying the payment of licence fee;

- A business registration certificate;

...

...

...

g. To publish in 5 consecutive issues of central and local Vietnamese newspapers (where the head office of the Finance Leasing Company is located) the announcement of following main contents:

- Full and abbreviated name of the finance leasing company;

- Address of the head office; Telephone number, facsimile number....

- Charter capital;

- Contents, scope, location and duration of operation;

- Serial number, date of the licence issued by the State Bank; Serial number, date of the Certificate of business registration, name of the issuing agency;

- Names, nationalities of the Chairman and members of the Board of Directors, Controllers and General Managers (Managers);

- Expected date of opening for operation.

- Other contents if necessary;

...

...

...

13. Revocation of licence:

13.1. Operation licence of a Finance Leasing Company may be revoked in accordance with provisions in paragraph 1 Article 29 of the Law on the Credit Institutions.

13.2. Procedures, file for licence revocation of a Finance Leasing Company shall be performed in accordance with provisions of applicable laws and the guidance of the State Bank.

13.3. After the revocation of licence, the Finance Leasing Company shall immediately terminate all business activities stated in the licence.

13.4. The State Bank shall announce the decision on the revocation of the finance leasing companys licence in a local newspaper where the companys head office is located and in a daily national newspaper in Vietnamese in three consecutive issues.

14. Changes of a Finance Leasing Company to be approved:

14.1. The Finance Leasing Companies must be approved in writing by the State Bank prior to their change of one of the following issues:

a. Name of the finance leasing company;

b. Charter capital level;

...

...

...

d. Contents, scope and duration of operation;

e. Transfer of the contributed capital part of the parties to a joint venture finance leasing company;

g. Total money amount from the transfer of non-bearer shares from the first transfer which are in excess of 20% of the charter capital of a joint stock finance leasing company;

h. Share ratios of major shareholders in a joint stock finance leasing company;

i. Members of the Board of Directors, General Director (Director) and members of Controller Committee;

14.2. File for the approval of changes:

14.2. File for the change of the name of the finance leasing company:

a. A written application by the Chairman of the Board of Directors of the Finance Leasing Company for the change of the companys name. The written application should clearly state the reasons and the necessity of the change of the companys name;

b. Quotation of the minutes of the meeting and the resolution of the Board of Directors of the Finance Leasing Company on the change of the companys name;

...

...

...

d. Quotation of the minutes, resolution of the shareholders Meeting on the change of the companys name in respect of the joint stock finance leasing company.

14.2.2. File for the change of the charter capital level:

a. A written application by the Chairman of the Board of Directors of the Finance Leasing Company for the change of the charter capital level which clearly states the reasons and the necessity of the change of the charter capital level and solutions for remains (if any) prior to the change;

b. Quotation of the minutes of the meeting and the resolution of the Board of Directors of the Finance Leasing Company on the change of the charter capital level of the company;

c. A written approval of the credit institution which has a subsidiary finance leasing company; of funds contributing parties to the joint venture finance leasing company; of foreign parties to 100% foreign owned Finance Leasing Company on the change of the charter capital level of the company;

d. Report on the organization and operation as of the end of the most recent quarter of the finance leasing company;

e. Besides the above-mentioned files, joint stock Finance Leasing Company must submit to the State Bank the following documents:

- Quotation of the minutes, resolution of the shareholders Meeting on the change of the charter capital level;

- Plan of the change of the charter capital level that has been approved in the Shareholders Meeting;

...

...

...

- Application for the purchase, sale of shares of major shareholders.

14.3. File for the change of the location of the head office, branch, representative office:

a. A written application by the Chairman of the Board of Directors of the Finance Leasing Company for the approval of the State Bank for the change of the location of the head office, branch, representative office, which clearly states the reasons of the location movement, the security of treasury at new location;

b. Quotation of the resolution of the Board of Directors of the Finance Leasing Company on the change of the location of the head office, branch, representative office.

c. A written approval by the Peoples committee at new location permitting the Finance Leasing Company to locate its head office, branch, representative office;

d. A written document certifying the ownership of or the right to legally use the location of the head office, branch, representative;

e. Opinion of the General Manager of the State Banks branch in province, city under the central Governments management where the Finance Leasing Company locates its new head office, branch, representative office.

14.2.4. Fire for the change of contents, scope and duration of operation:

a. A written application by the Chairman of the Board of Directors of the Finance Leasing Company for the change of contents, scope and duration of operation, which clearly states the reasons and the necessity of the change;

...

...

...

c. A written approval of the mother credit institution that has a subsidiary finance leasing company; of funds contributing parties to the joint venture finance leasing company; of foreign parties to 100% foreign owned Finance Leasing Company for the change of contents, scope and duration of operation;

d. Report on the organization and operation as of the end of the most recent quarter of the finance leasing company;

e. Quotation of the minutes, resolution of shareholders Meeting for the joint stock finance leasing company.

14.2.5. File for the transfer of the contributed capital part of parties to the joint venture finance leasing company:

a. A written application by the Chairman of the Board of Directors of the joint venture Finance Leasing Company for the approval of the State Bank for the capital transfer, which clearly states the reasons thereof;

b. Quotation of the minutes of the meeting of the Board of Directors of the joint venture Finance Leasing Company on the consent of the capital transfer;

c. A written document of the transferor submitted to the State Bank requesting for the partial or total transfer of his contributed capital in the joint venture Finance Leasing Company enclosed with a draft transfer contract;

d. A written document of the transferee on the acceptance of contributed capital transfer and requesting the State Bank to permit him to repurchase partially or wholly the transferors contributed capital part in the joint venture finance leasing company;

e. Where the transferee is not a party to the joint venture, this institution must supply further documents as provided for in paragraph 9 Section II of this Circular.

...

...

...

a. A written application by the Chairman of the Board of Director for the transfer of none-bearer shares in excess of 20% or for the change of share ratio of major shareholders;

b. An application for the transfer of shares of shareholders (for shareholders, who are a legal entity, the application for share transfer must be signed and sealed by the legal representative of the legal entity);

c. An application for the share purchase of shareholders (applicable to shareholders being a legal entity, the application for the share purchase must be signed and sealed by legal representative of the legal entity) which commits the legality of the fund source used for share purchase, accepts the finance state, charter of the joint stock Finance Leasing Company and ensures the compliance with provisions of current laws on the capital contribution, share purchase;

d. File of shareholders who transfer non-bearer shares, which are less than 20% of charter capital;

e. Other documents relating to the change, transfer of shares.

14.2.7. File, sequences, procedures of the change of members of the Board of Directors, Controllers Committee and General Director (Director) shall be performed in accordance with the provisions of the Governor of the State Bank on the organization and operation of the Board of Directors, Controllers Committee, General Directors (Directors) of non bank credit institutions.

14.3. Sequences, procedures for the approval of changes of the finance leasing company:

14.3.1. In respect of joint stock finance leasing company:

a. For the changes mentioned in point 14.2.2, 14.2.3 and 14.2.6 of this Circular, the file shall be made in 2 (two) sets and submitted to the State Banks branch in province, city under the central Governments management where the Finance Leasing Company locates its head office. Within a period of 15 (fifteen) working days from the receipt of sufficient file, General Manager of the State Banks branch in province, city shall consider, accept the above-mentioned changes of the finance leasing company. In case of non-acceptance, the State Banks branch in province, city under the central Governments management where the Finance Leasing Company locates its head office must give reasons thereof in writing.

...

...

...

b. For changes stated in points 14.2.1, 14.2.4 of this Circular, the file shall be made in 3 (three) sets and submitted to the State Banks branch in province, city under the central Governments management where the Finance Leasing Company locates its head office. Within a period of 15 (fifteen) working days from the receipt of sufficient file, the State Banks branch in province, city shall give its written opinion and submit it to the State Bank (the Department of Banks and non bank Credit Institution) together with 2 (two) file sets of the finance leasing company.

14.3.2. In respect of other Finance Leasing Companies:

The file shall be made into 2 (two) sets and submitted to the State Bank (the Department of Banks and non bank Credit Institution).

14.3.3. Within a period of 15 (fifty) working days since the receipt of sufficient file in accordance with applicable provisions, the Governor of the State Bank shall consider, accept the changes of the finance leasing company. In case of non-acceptance, the State Bank shall give reason thereof in writing.

14.3.4. After obtaining the acceptance from the State Bank, the Finance Leasing Company shall register with the competent state agency for the changes stipulated in point 14.2.1, 14.2.2, 14.2.3, 14.2.4 and publish them in central, local newspaper in accordance with applicable provisions.

14.3.5. The Finance Leasing Company must submit a written document on the registration of the changes which is issued by the competent state agency (notarised copy) and other related documents to the State Bank (the Department of Banks and non Bank Credit Institution). Joint stock Finance Leasing Company must submit further 1 (one ) set of above mentioned documents to the State Banks branch in province, city under the central Governments management where its head office is located.

15. Changes that need notifying: Within a period of 30 (thirty) days since the date of following changes, Finance Leasing Companies, which are a subsidiary of credit institutions, joint venture Finance Leasing Companies, 100% foreign owned Finance Leasing Companies must notify in writing to the State Bank of:

15.1. The change of the Chairman of the Board of Directors, General Managers (Managers) of funds contributing parties;

15.2. The change of the name, address of the funds contributing parties;

...

...

...

Section III

ORGANIZATIONAL STRUCTURE, MANAGEMENT, OPERATION AND CONTROL OF FINANCE LEASING COMPANIES

16. Organisational structure of Finance Leasing Companies

16.1. Branches, representative offices:

a. Finance Leasing Companies shall be entitled to open, terminate the business operation of branches, representative offices in any domestic or foreign location where they have a demand for operation after obtaining a written approval from the State Bank.

b. Conditions, files, procedures of opening, termination of the business operation of branches, representative offices of Finance Leasing Companies shall be applicable in accordance with the regulation of the Governor of the State Bank on the opening for business and termination of operation of branches, representative offices of non bank credit institutions and provisions of current laws.

16.2. Subsidiary companies

a. Finance Leasing Companies shall be entitled to establish with their own capital subsidiary companies as a legal person which operates on an independent accounting basis to engage in several areas of finance, banking, insurance and management, exploitation and sale of assets during the disposal of loan security assets and assets which the State assigns to finance leasing companies for disposal and debt recovery.

b. The establishment of a subsidiary company of the Finance Leasing Company shall be performed in accordance with the guidance of the State Bank.

...

...

...

17. The split, separation, merger, integration, acquisition, dissolution: the split, separation, merger, integration, acquisition, dissolution of a Finance Leasing Company must be approved in writing by the State Bank and performed in accordance with the guidance of the State Bank.

18. Management, operation and control

18.1. Finance Leasing Companies shall have the Board of Directors, Controllers Committee and the General Director (Director).

For finance leasing companies of a credit institution, which do not have a separate Board of Directors and Controllers Committee at the tiem being, the Board of Directors of the mother credit institution shall, within a period of 90 (ninety) days from the effectiveness of this Circular, shall appoint the members of the Board of Directors, Controllers Committee of the Finance Leasing Company in accordance with applicable provisions and submit to the Governor of the State Bank for approval.

18.2. The election, appointment or removal of the Chairman and members of the Board of Directors, Head and members of Controllers Committee, General Director (Director) of a Finance Leasing Company shall be performed in accordance with the provisions of the Governor of the State Bank on organization and operation of the Board of Directors, Controllers Committee, General Director (Director) of non Bank credit institutions and provisions of current laws.

18.3. The Chairman and other members of the Board of Directors, Head of the Controller Committee and other members of Controller Committee, the General Director (Director) of the Finance Leasing Company shall be approved by the Governor of the State Bank prior to their performance of duties.

18.4. The specific function, assignment and authority of the members of the Board of Directors, Controllers Committee, General Director (Director) of the Finance Leasing Company shall be implemented in accordance with provisions of the Governor of the State Bank on the organization and operation of the Board of Directors, Controllers Committee, General Director (Director) of non-banking credit institutions and provisions of current laws.

Section IV

OPERATION OF A FINANCE LEASING COMPANY

...

...

...

19.1. A Finance Leasing Company shall be entitled to mobilize funds from following sources:

a) Receiving deposits with term of 01 year and more from organizations, individuals.

b) Borrowing short-term, medium-term and long-term funds from domestic and foreign credit institutions.

c) Issuing valuable papers:

- A Finance Leasing Company shall be entitled to issue valuable papers (bills of exchange, bills, deposit certificates, bonds,....) with the term of over 01 year for the mobilization of funds from domestic organizations and individuals in accordance with provisions of the Governor of the State Bank on the issuance of valuable papers of credit institutions for the domestic funds mobilization.

- A Finance Leasing Company shall be entitled to issue bonds, certificates of deposit certificates and other valuable papers with term of over 01 year for the mobilization of funds from foreign organizations and individuals upon approval by the State Bank.

d) Receiving other funds in accordance with provisions of the State Bank.

19.2. A Finance Leasing Company shall be entitled to perform following operations in compliance with applicable provisions of the State Bank:

a) Finance leasing;

...

...

...

c) Trust service: The Finance Leasing Company shall provide leases to their customers according to designation of the trusting party and enjoy the trust fee. Any risk during the leasing trust process shall be paid by the trusting party. A Finance Leasing Company shall be entitled to perform following trust services:

- Accept trust of machines, equipment to provide finance leases to customers.

- Accept trust of money from domestic and foreign organizations, individuals to import machines, equipment to provide finance leases to customers.

- Other trust services relating to the finance leasing activity.

d) Management service for finance leasing assets, specifically:

- Providing management service for finance leased asset of other Finance Leasing companies.

- Other asset management services relating to the finance leasing activity.

e) Guarantee services relating to the finance leasing activity in line with the guidance of the State Bank;

g) Operation lease

...

...

...

i) Selling receivables from a finance leasing contract to the organizations, individuals.

19.3. A Finance Leasing Company shall be entitled to perform other operations upon the approval of the State Bank.

19.4. Foreign exchange activity:

A Finance Leasing Company shall be entitled to perform foreign exchange activity in conformity with the licence issued by the State Bank.

20. Currency used in the finance leasing transactions:

20.1. A Finance Leasing Company shall perform the finance leasing transactions in Vietnamese Dong.

20.2. In respect of finance leasing transactions performed in foreign currency, Finance Leasing Companies must comply with the guidance of the State Bank and provisions of current laws on foreign exchange control.

21. Interest rate and the reduction of the interest from finance leasing:

21.1. Finance Leasing Companies shall determine the interest rate of finance leasing based on the demand-supply for credits, interest rate of the domestic, international market and other related charges.

...

...

...

22. The restructure of the repayment term, classification of the overdue debts in respect of finance leasing activity shall be perform in conformity with the provisions of the State Bank.

23. Prudential ratios: Finance Leasing Companies shall maintain prudential ratios as provided for in Article 81 of the Law on Credit Institutions and provisions of the Governor of the State Bank on prudential ratios in the activity of credit institutions.

24. Cases where a Finance Leasing Company shall not be entitled to lease:

24.1. A Finance Leasing Company shall not be entitled to provide finance leases to following subjects:

a) Members of the Board of Directors, members of the Controllers Committee, General Director (Director), Deputy General Director (Deputy Director) of the Finance leasing company;

b) The person who appraises, approves the lease;

c) Father, mother, spouse, children of the members of the Board of Directors, members of Controllers Committee, General Director (Director), Deputy General Director (Deputy Director) of the Finance leasing company.

24.2. A Finance Leasing Company shall not be entitled to accept guarantee of subjects as provided for in point 24.1 in this Section as a basis to provide leases to customers.

25. The limit on the finance lease:

...

...

...

a) Auditing firms, Auditors who are currently auditing in the Finance leasing company; the Chief Accountant; the Inspector;

b) Major shareholders of the Finance Leasing Company;

c) Enterprises in which one of the subjects provided for in point 24.1 in this Section owns over 10% of the charter capital.

25.2. The total outstanding debts from finance leasing to the subjects provided for in point 25.1 in this Section shall not exceed 5% of the own capital of the Finance Leasing Company.

26. Finance Leasing Companies shall be entitled to open accounts at the State Bank and commercial banks, which are authorized to operate in Vietnam. In case where the opening of a foreign currency account in a foreign country is required, it must be approved by the State Bank.

27. Finance lease contracts:

27.1. Finance lease contracts shall be made in written document in line with provisions of applicable laws, Decrees of the Government on the organization and operation of Finance Leasing companies.

27.2. A finance lease contract shall be effective since the date where it is agreed upon in the contract by the concerned parties.

27.3. Cases where a finance lease contract terminates prior to the expiration:

...

...

...

a) The lessee fails to make lease payment in accordance with the provisions in the finance lease contract;

b) The lessee violates clauses of the finance lease contract;

c) The lessee is bankrupt, dissolved;

d) The guarantor of the lessee is bankrupt, dissolved and the lessor does not accept the request for the abolition of the guarantee requirement or the request for the replacement of another guarantor by the lessee.

27.3.2. The lessee may terminate the finance lease contract prior to the expiration when one of following cases occurs:

a) The lessor fails to deliver the lease assets on time due to the failure of the lessor;

b) The lessor violates clauses of the finance lease contract.

27.3.3. The finance lease contract shall terminate prior to the expiration in the event where the lease assets are lost, broken down and impossible to be restored or repaired.

27.3.4. The finance lease contract shall terminate prior to the expiration in case where the lessor accepts the entire payment of the lease by the lessee prior to the maturity date provided for in the finance lease contract.

...

...

...

27.4.1. In the event where the finance lease contract terminates prior to the expiration under one of the cases stipulated in point 27.3.1 mentioned above, the lessee shall be required to make immediately the entire remaining lease payments. If the lessee fails to make payment within the time limit required by the Finance Leasing Companies, the Finance Leasing Company shall settle the leased assets as follows:

a) The Finance Leasing Company shall be entitled to take back immediately the lease assets without a Court approval and require the lessee to make the entire lease payment which is unpaid in conformity with the contract. Any act of obstruction, seizure, use of the leased assets and not return of the leased assets to the lessor shall be strictly forbidden;

b) After taking back the lease assets, within the period of 60 (sixty) days at the maximum, the lessor must complete the disposal of the lease assets. The amount of money collected from the disposal of the lease assets shall be used to pay for the unpaid lease payment of the lessee and other expenses arising in the revocation of the lease assets. If the collected money is insufficient for the payment, the lessee shall be responsible for the payment of the unpaid amount to the lessor;

c) In case where the lessee has paid part of the payable lease payment and the Finance Leasing Company have completed the disposal of the lease assets, if the collected money exceeds the payable lease payment in accordance with the contract and the expenses incurred in the return of the lease assets, the Finance Leasing Company shall pay back to the lessee the excess payment.

d) During the time when the lessor settles the lease assets, if the lessee pays the entire of payable lease payment in accordance with the contract and the incurred expenses for the disposal of the lease assets, the lessor shall transfer the ownership of the leased assets to the lessee like in the case where the finance lease contract is completed;

e) Within the period of 30 (thirty) days since the date where the lessee receives the request for the return of the lessors leased assets, the lessee must take the responsibility to return the assets to the lessor.

27.4.2. In case where a finance lease contract terminates prior to the expiration as provided for at point 27.3.2 mentioned above, the lessor shall be subject to the compensation for the damages to the lessee.

27.4.3. In case where a finance lease contract terminates prior to the expiration as provided at point 27.3.3 mentioned above, the lessor must repay the asset insurance policy to the lessee when the lessee has made the full payment to the lessor and when the lessor has received the insurance premiums paid by the insurance agency.

27.4.4. The ownership of the lessor over the lease assets during the lease term shall not be affected in the event where the lessee is bankrupt, dissolved, insolvent. The lease assets shall not be considered as assets of the lessee in the disposal of the lessees assets to make debt repayment to other creditors.

...

...

...

FINANCE, ACCOUNTING AND REPORTING

28. Finance

28.1. The fiscal year of the Finance Leasing Company shall begin on the first of January and end at the close of business on the thirty first of December of every calendar year. The first fiscal year shall begin on the date of the opening for operation and finish at the end of the thirty first of December of the same calendar year.

28.2. Financial revenues, expenditures of the Finance Leasing Company shall be implemented in accordance with current provisions of the laws on financial regime of credit institutions.

29. Accounting: The accounting of the Finance Leasing Company must comply with provisions of the Law on Credit Institutions, the Law on the amendment, supplement of several articles of the Law on Credit Institutions and the accounting regime issued by the State Bank.

30. The establishment and use of Funds:

30.1. The profit realized in a fiscal year of the Finance Leasing Company shall be the business result of the Company after the tax payment in accordance with applicable laws;

30.2. The establishment and use of Funds of the Finance Leasing Company shall be implemented in accordance with provisions of the current laws on the finance regime of credit institutions;

30.3. The Finance Leasing Company shall not be permitted to use funds provided for at point 30.2 mentioned above to make profit payment or distribution to owners in any forms, except for the case where the Finance Leasing Company is dissolved and liquidated (in this case, priority must be given to the payment to creditors before the distribution to owners).

...

...

...

The Finance Leasing Company shall make risk provisions and use risk provisions in conformity with the provisions of the State Bank and other provisions of the applicable laws.

32. The repatriation of profits and assets after the business liquidation or termination by foreign parties in the joint venture Finance Leasing Company, 100% foreign owned Finance Leasing Company shall be implemented in accordance with provisions of the Law on Credit Institutions and the current laws.

33. The reporting regime:

33.1. The Finance Leasing Company shall carry out the statistic, information reporting regime in compliance with current provisions and guidance of the State Bank. Reports of the Finance Leasing Company must be made in Vietnamese and in Vietnamese Dong.

33.2. Within the period of 30 (thirty) days since the end of the fiscal year, the Finance Leasing Company must submit the written report which provides the assessment about the organization, operational performance and the estimated business plan to the State Bank (the Department of Banks and Non-banking Credit institutions).

34. Auditing:

34.1. Within the period of 30 (thirty) days at the latest before the end of the fiscal year, the Finance Leasing Company must select an independent audit organization which fully satisfies the conditions provided for by the State Bank to audit its activities. The selection of the independent audit organization shall be implemented in accordance with provisions of applicable laws on bidding.

34.2. Within the period of 120 (one hundred and twenty) days since the end of the fiscal year, the Finance Leasing Company shall submit 02 (two) copies of the audited financial statements to the State Bank (the State Banks Inspectorate and the Department of Banks and Non-banking Credit institutions) and publicize the financial statements in accordance with provisions of applicable laws.

34.3. Within the period of 180 (one hundred and eighty) days since the end of the fiscal year, the joint venture Finance Leasing Companies, 100% foreign owned Finance Leasing Companies shall submit the financial statements of the funds contributing credit institutions, to the State Bank.

...

...

...

INSPECITON, SPECIAL CONTROL, DISSOLUTION, LIQUIDATION, BANKRUPCY

35. Inspection:

35.1. The Finance Leasing Company must be subject to the inspection of the State Bank.

35.2. The inspection of the State Bank over the activity of the Finance Leasing Company shall be implemented in accordance with provisions of the Law on Credit Institutions, the Law on the amendment, supplement of several articles of the Law on Credit Institutions and provisions of applicable laws on the inspection of the credit institutions.

35.3. The inspection, supervision of the foreign party: Foreign credit institutions contributing capital to 100% foreign owned Finance Leasing Companies which are operating in Vietnam shall be entitled to perform the inspection, internal audit of the activity of 100% foreign owned Finance Leasing Companies. Before the inspection, internal audit, foreign credit institution must give a written notice to the State Bank of the content, time expected to begin and end the inspection, audit. Within the period of 30 (thirty) days since the end of the inspection, audit, the foreign credit institution shall send written report on the inspection, audit result to the State Bank.

36. The special control, bankruptcy, dissolution, liquidation of the Finance Leasing Company shall be implemented in accordance with provisions of the Law on Credit Institutions, the Law on the amendment, supplement of several articles of the Law on Credit Institutions and provisions of the current laws.

37. The awards and dealing with violation for the activities of the Finance Leasing Company shall be implemented in accordance with provisions in Chapter X of the Law on Credit Institutions and related legal documents.

Section VII

IMPLEMENTING PROVISIONS

...

...

...

38.1. The State Banks branches in provinces, cities under the Central Governments management:

To receive, consider the application file for the issuance of the establishment, operation licence of the joint stock Finance Leasing Company and approve the changes of the Finance Leasing Company in compliance with the sequences and procedures provided for in this Circular.

38.2. The Banks and Non-banking Credit Institutions Department:

a) To receive, appraise the application file for the issuance of the establishment, operation licence of the Finance Leasing Company and approve the changes of the Finance Leasing Company in accordance with the sequences and procedures provided for in this Circular.

b) To coordinate with relevant Departments of the State Bank in the submission to the Governor for his consideration of the issuance of the establishment, operation licence to the Finance Leasing Company and to approve the proposal of changes of the finance leasing company.

c) To study and submit to the Governor of the State Bank for the issuance of following regulations:

- The regulation on the guidance on the performance of the operation leasing activity.

- The regulation on the guidance on the implementation of the purchase and lease back activity in the form of finance leasing.

- The regulation on the guidance on the performance of the sale of receivables.

...

...

...

a) To coordinate with and provide the Banks and Non-banking Credit institutions Department with information of the performance of the Finance leasing company, to propose matters relating to the issuance of the establishment, operation licence to the Finance Leasing Company and matters relating to the operation supplement and changes of the Finance Leasing Company.

b) To supply the inspection, supervision reports on Finance Leasing Companies to the Banks and Non-banking Credit institutions Department.

38.4. The Monetary Policy Department:

To research and submit to the Governor of the State Bank for the issuance of the regulation on the guidance on the performance of the finance leasing activity, the trust service activity relating to the finance leasing.

38.5.The Credit Department:

To research and submit to the Governor of the State Bank for the issuance of the regulation on the guidance on the performance of the syndication leasing, guarantee activities relating to finance leasing.

38.6. The Finance-Accounting Department:

To provide guidance on the accounting in respect of accounting operations of Finance Leasing Companies.

39. This Circular shall be effective after 15 days since its publication on the Official Gazette. Following documents shall cease their effectiveness:

...

...

...

- The Circular No. 07/2004/TT-NHNN dated 01/11/2004 of the Governor of the State Bank on the Amendment of point 17.2 of the Circular No. 08/2001/TT-NHNN dated 06/09/2001 of the Governor of the State Bank guiding the implementation of the Decree No.16/2001/ND-CP dated 02/05/2001 of the Government on the organization and operation of the Finance Leasing Companies;

40. The Director of the Administrative Department, the Director of Banks and Non-banking Credit Institutions Department, Heads of units of the State Bank of Vietnam, General Managers of the State Banks branches in provinces, cities under the Central Governments management, the Chairman of the Board of Directors, the General Directors (Directors) of Finance Leasing Companies, within the scope of their authority, assignment, shall be responsible for the implementation of this Circular.

FOR THE GOVERNOR OF THE STATE BANK OF VIETNAM
DEPUTY GOVERNOR




Dang Thanh Binh

APPENDIX 01A

(Applicable to Finance Leasing Companies, which are a subsidiary of credit institutions)

SOCIALIST REPUBLIC OF VIETNAM
Independence Freedom Happiness
-----***-----

...

...

...

To: the Governor of the State Bank of Vietnam

Date:........../......./......., .........(name of the credit institution) would like to request the State Bank to consider the issuance of the establishment and operation licences to the Finance leasing company:

1. Name of the finance leasing company:

- Full name in Vietnamese: Abbreviated name:

- Full name in English: Abbreviated name:

2. The Head Office located in: (Address of the Head office)

- Phone number, fax number:.....(if any)

3. Location of operation:

4. Duration of operation:

...

...

...

6. Charter capital: (expected)

- In cash:

- In other assets: (if any)

7. The expected structure of the Board of Directors, Controllers Committee, the General Director (Director) (state clearly full name, date of birth, nationality of members).

8. We would like to commit:

a) To take full responsibility for the truthfulness and accuracy of the Application and the attached file.

b) After being granted the establishment and operation licence, to fully comply with applicable provisions before the opening for operation.

c) To comply strictly with the provisions of applicable laws and applicable provisions of the State Bank, to take the responsibility to the law for any violation act.

...

...

...

......, date../..../.......

FOR THE CREDIT INSTITUTION

(The Chairman of the Board of Directors or the person authorized by the Chairman of the Board of Directors signs)

APPENDIX 01B

(Applicable to Joint stock Finance Leasing Companies)

SOCIALIST REPUBLIC OF VIETNAM
Independence Freedom Happiness
------***-------

APPLICATION FOR THE ISSUANCE OF THE ESTABLISHMENT AND OPERATION LICENCE OF A FINANCE LEASING COMPANY

To: The Governor of the State Bank of Vietnam

...

...

...

Now, on behalf of the shareholders, the Board of Directors would like to request the State Bank to consider the issuance of the establishment and operation licence to the finance leasing company:

1. Name of the finance leasing company:

- Full name in Vietnamese: Abbreviated name:

- Full name in English: Abbreviated name:

2. Head office located in: (Address of the head office)

- Phone number, fax number:

3. Location of operation:

4. Duration of operation:

5. Content and scope of operation:

...

...

...

- In cash:

- In other assets: (if any)

7. The Board of Directors, Controllers Committee, General Director (Director).

8. We would like to commit:

a) To take full responsibility for the truthfulness and accuracy of the Application and the attached file.

b) After being granted the establishment and operation licence, to fully implement applicable provisions before the opening for operation.

c) To strictly comply with the provisions of applicable laws and applicable provisions of the State Bank, to take the responsibility to the law for any violation act.

Attached file includes:

...

...

...

FOR THE BOARD OF DIRECTORS

APPENDIX 01C

(Applicable to joint venture Finance Leasing Companies,100% foreign owned Finance Leasing Companies)

SOCIALIST REPUBLIC OF VIETNAM
Independence Freedom Happiness
------***------

APPLICATION FOR THE ISSUANCE OF THE ESTABLISHEMENT AND OPERATION LICENCE OF A FINANCE LEASING COMPANY

To: The Governor of State Bank of Vietnam

Parties participating in the establishment of a Finance Leasing Company shall submit to the Governor of State Bank the application for the establishment of a Finance Leasing Company in Vietnam.

A. Parties participating in the establishment: (state specifically each partner)

...

...

...

2. Location of head office, transaction address, Phone No, Fax No ........

3. Charter capital.

4. Date of the establishment, issue date of the business registration.

5. Agency that issued the operation licence, the serial number and issue date of the licence.

6. Agency that issued the certificate of business registration, serial number and issue date of business registration.

B. Finance Leasing Company set up in Vietnam:

1. Full and abbreviated names (in Vietnamese, in English).

2. Expected location of head office and Phone No, Fax No (if any).

3. Expected charter capital (of which: capital in VND, capital in foreign currency, capital in assets) and ratio of capital contribution of parties.

...

...

...

5. Contents and scope of operation:

6. Expected structure of the Board of Directors, Controllers Committee, General Director (Director).

7. Expected number of officers, staffs (of which: number of persons with Vietnamese nationality and those with foreign nationality).

8. We would like to commit:

a) To take full responsibility for the truthfulness and accuracy of the Application and the attached file.

b) After being granted the establishment and operation licence, to fully comply with applicable provisions before the opening for operation.

c) To strictly comply with the provisions of applicable laws and applicable provisions of the State Bank, to take the responsibility to the law for any violation act.

Attached file includes:

...

...

...

(Legal representative or the authorized person of each party signs and seals)