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MINISTRY OF
FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
228/2012/TT-BTC
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Hanoi,
December 27, 2012
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CIRCULAR
INSTRUCTIONS FOR ESTABLISHMENT AND MANAGEMENT OF REAL ESTATE
INVESTMENT TRUSTS
Pursuant to the Law on Securities dated June
29, 2006;
Pursuant to the Law on Amendments and
Supplements to the Law on Securities dated November 24, 2010;
Pursuant to the Law on Prices dated June 20,
2012;
Pursuant to the Law on Real Estate Business
dated June 29, 2006;
Pursuant to the Government’s Decree No.
58/2012/ND-CP dated July 20, 2012, detailing and guiding the implementation of
a number of articles of the Law on Securities and the Law on Amendments and
Supplements to a number of articles of the Law on Securities;
Pursuant to the Government's Decree No.
118/2008/ND-CP dated November 27, 2008, defining the functions, tasks, powers
and organizational structure of the Ministry of Finance;
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Minister of Finance hereby promulgates the
Circular providing instruction on establishment and management of real estate
investment trusts
Chapter
I
GENERAL
PROVISIONS
Article
1. Scope and subjects of application
1. This Circular provides
for mobilization of capital, establishment, management and oversight of
investment activities of real estate investment trusts which are organized and
established in a form of closed-end fund or are constituted as public limited
companies.
2. This Circular shall apply
to the followings:
a) Fund management
companies, supervisory banks and valuation bodies;
b) Real estate investment
trusts, including real estate securities companies;
c) Members of representative
boards of real estate investment trusts, members of managing boards of real
estate securities companies; representative boards of real estate investment
trusts, managing boards of real estate securities companies; investors of real
estate investment trusts and shareholders of real estate securities companies;
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Article
2. Definitions
In addition to terms defined
in the Government’s Decree No. 58/2012/ND-CP dated July 20, 2012, detailing and
guiding the implementation of a number of articles of the Law on Securities and
the Law on Amendments and Supplements to a number of articles of the Law on
Securities (hereinafter referred to as Decree No. 58/2012/ND-CP), for the
purposes of this Circular, terms used herein are construed as follows:
1. Real estate appraisal
certificate refers to a document showing results of valuation of a real
property which is issued by a valuation body at the request of customer in
accordance with laws on real estate appraisal and business.
2. Real estate securities
company refer to a real estate investment fund which is organized in a form
of public joint stock company in accordance with laws on enterprises, licensed
and operated under laws on securities.
3. Distributing agency refers
to a securities company providing securities brokerage services or a fund
management company.
4. Personal profile refers
to an information sheet designed by using the form given in the Appendix No. 09
hereto, certified true copy of identification card or passport remaining valid,
or other legitimate personal identity papers.
5. Real estate business
activity includes business of real property and real estate services. This
involves the following activities:
a) Real property business
means investment of capital in creation, purchase, acceptance of the transfer
of, rental or hire-purchase of real estate which is then sold, disposed of,
leased, leased back or hire-purchased for profit;
b) Real estate service
business refers to activities supporting real property business activities and
real estate markets, including such services as real estate brokerage,
valuation, exchanges, consultancy, auctions, advertising and management.
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7. Persons having
interests related to a person or entity refers to persons and entities
having relations with the latter person or entity, including:
a) Person(s) having marital
and kinship relations with that person;
b) Entities in which 30% of
charter capital is owned by that person together with his/her spouse and kin
(if any);
c) Companies having
proprietorial relationships.
8. Fund administrator refers
to a person licensed to administer a fund who is appointed by a fund management
company to manage and take control of investments made by a real estate
investment trust and real estate securities investment company.
9. Group of companies
having ownership relationship refers to organizations having
parent-subsidiary, joint venture and business associate relationship.
10. Real estate project
development includes one or several activities as follows:
a) Participating in land use
right auctions or bidding for execution of real estate projects;
b) Submitting proposed
projects to competent regulatory entities to seek their permission for
investment in construction of real property for business purposes;
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11. Charter capital of a
real estate investment trust, including the charter capital of a real estate
securities investment company, refers to the amount of actual equity
participation of an investor or shareholder which is inscribed in the charter
of the trust or company.
12. Real estate appraisal
refers to valuation or revaluation of real property to ensure its price is
aligned with the market price at that time or a specified time according to
Vietnam’s standards or international conventions.
13. Appraisal body refer
to a valuation enterprise operated under laws on valuation or a real estate
service business providing appraisal services that is authorized by a fund
management company acting on behalf of a real estate investment trust or real
estate securities company to appraise a particular real property at the
specified time.
14. Real estate
management body refers to a real estate service business that is operating
under legislative laws on real estate business, is authorized by a fund
management company acting on behalf of a real estate investment trust or real
estate securities company to perform duties to keep custody, take care of, use
and operate real property under terms and conditions of a real estate
management contract.
15. Real estate
investment trust refers to a closed-end fund offering stock certificates
(sometimes briefly called stock(s)) to the public and not redeeming them as
requested by investors with the aim of mainly making investments in real estate
for rent to gain stable profit under the provisions of clause 1 and 2 of
Article 91 in the Decree No. 58/2012/ND-CP.
Chapter
II
REAL ESTATE
INVESTMENT TRUSTS EXISTING IN A FORM OF CLOSED-END FUND
Section
1. OFFERING OF STOCK CERTIFICATES AND FUND ESTABLISHMENT
Article
3. General provisions regarding real estate investment trusts
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a) The phrase “real estate
investment trust”;
b) Proper name.
2. State regulatory
authorities and Vietnam's armed forces shall not be allowed to make equity
investment in or purchase stock certificates of real estate investment trusts.
Equity contributions to establishment and purchases of stock certificates of
real estate investment trusts by credit institutions, insurance firms,
securities trading organizations and single-member limited liability companies
shall be subject to relevant specialized laws.
3. In cases where the
charter of a real estate investment trust agrees that an investor may own more
than 49% of its charter capital, the trust must register its stock code
according to laws and shall be bound by laws on ownership restrictions as
applied to foreign investors.
4. Public disclosure of
activities of a real estate investment provided herein shall be made via means
of mass communication below:
a) Website of the fund
management company. Information to be made available to the public includes
information about offering and additional issue of shares; other information,
where necessary, may be publicized on both of the electronic information
webpages administered by supervisory banks and distributing agencies;
b) Means of mass media run
by the Securities Depository and Stock Exchanges;
c) Other mass media, subject
to provisions of laws on release of information on the securities market.
5. The Charter of a real
estate investment trust that is initially issued may be drawn up by its
management company by using the form given in the Appendix No.05 hereto. It
shall be considered that investors agree with such Charter by registering
purchase of its stock certificates. In order to make any amendment or
supplement to the Charter of the trust, the fund management company must
collect opinions from investors in the general meeting. If allowed by the
trust’s Charter, the fund management company shall be entitled to make
amendment and revision to syntactic, grammatical or spelling errors contained
in the trust's Charter to the extent of not causing any impact on contents of
the Charter. In such case, it shall be unnecessary to collect investor’s
opinions from the investors' general meeting. After the trust’s Charter is
amended or supplemented, the fund management company must inform investors of
such amendments or supplements.
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7. The trust’s property
shall be owned by investors making equity participations or holding stock
certificates in the trust based on the percentage of contributed capital, but
not possessed by the fund management company or supervisory bank. Fund
management companies may use the trust’s property for the only purpose of
settling the trust’s financial obligations, but shall not be allowed to use
such property as payments or security for liabilities and other payment
obligations of their own or other persons or entities in any form and
circumstance.
Article
4. Registration of offering and additional issue of real estate investment
trust’s stock certificates
1. The public offering and
issue of stock certificates includes the initial public offering thereof for
the purpose of pooling funds for establishment of a trust and the additional
issue thereof for the purpose of increasing capital.
2. The initial public
offering of stock certificates of a trust must be registered by its fund
management company at the State Securities Commission and shall be subject to
the following regulations:
a) Such offering shall be
subject to provisions laid down in clause 3 of Article 12 in the Law on
Securities;
b) The fund management
company must have adequate capital and personnel serving the needs of
administration of the real estate investment trust under laws on establishment,
organization and operation of fund management companies; must not be put under
the operational control, special administration, subject to decisions on
temporary suspension, closure or must not be carrying out procedures for
business merger, acquisition, dissolution or bankruptcy;
c) The fund management
company must not be in the state of being subject to penalties for violations
against regulations regarding the securities sector in which all required
sanctions and remedial actions have not yet been fully carried out according to
penalty decisions of competent state authorities.
3. The additional issue of
stock certificates of a trust must be registered by its fund management company
at the State Securities Commission and shall be subject to the following
regulations:
a) Such issue must conform
to requirements set out in clause 1 and 2 of Article 94 in the Law on
Securities;
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- Information about
percentage of share purchase rights; principles and methods of determination of
issue prices; degree of post-issue dilution of stock certificates; methods of
determination of issue prices; percentage of successful issues or minimum
proceeds from issues and actions that may be taken in case of failure to reach
successful issue percentage or gain expected minimum proceeds; criteria for
selection of selling investors and methods of determination of requirements for
offer for sale in case of failure to distribute all of stock certificates
expected to be additionally issued;
- Information about
alternatives for use of capital; goals, plans and schedules of capital
disbursement (if any); total investment value, information about real property
proposed to receive investment (if any) according to provisions laid down in
point b of clause 4 of Article 14 herein.
c) Stock certificates shall
only be issued to existing investors in the trust through issue of rights to
purchase stock certificates. Rights to purchase stock certificates may be
transferred. In cases where existing investors give up their rights to purchase
stock certificates, the trust’s fund management company can offer them for sale
to other investors;
d) Issue documents, time and
price levels, criteria for assessment of eligibility of target buyers and
buyers eligible to receive offers for sale in case of failure to distribute all
of rights to purchase of intended stock certificates shall be subject to
approval of the trust’s representative board.
4. Application package for
offer for sale of stock certificates of a real estate investment trust,
including:
a) Application form for
public offering of stock certificates prepared by using the form given in the
Appendix No. 01 hereto;
b) Trust’s Charter;
c) Prospectus or summary
prospectus;
d) Agreements in principle
on deposit and monitoring of stocks with the supervisory bank; agreements in
principle on appraisal of stocks signed with appraisal bodies (if any);
agreements in principle on management of real estate signed with real estate
management bodies (if any); agreements in principle on distribution of stock
certificates entered into between the trust's fund management company and
distributing agencies;
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- Legitimate copy of
certificate of practice in fund management (if any) or other certificates
prescribed by laws on establishment, organization and operation of the trust’s
fund management company;
- Legitimate copy of
valuer’s ID card, valid copy of real estate appraisal credentials prescribed by
laws on real estate business, or any proof of pass in valuer’s tests in
relevant subjects, including: (i) Price formation bases; (ii) Principles and
methods of appraisal; (iii) Real estate appraisal; (iv) Corporate valuation,
enclosing any document proving that the holder has acquired at least two (02)
years of experience in real property valuation at real estate businesses, real
estate service providers and appraisal enterprises;
e) Any firm commitment.
5. Application package for
additional issue of stock certificates, including:
a) Documents referred to in
point a, b and c of clause 4 of this Article, including the trust's Charter,
which prescribe increase in the trust's capital stock;
b) Minutes and resolution of
an investors’ general meeting that state approval of offer for sale of
additional stocks for the purpose of raising the trust's capital, plans for
issue of stocks and use of its share capital; minutes and resolution of the trust’s
representative board that state approval of application documents for offer for
sale of stocks and other matters specified in point d of clause 3 of this
Article;
c) Financial statement of
the year preceding the year of submission of application for additional issue
of stock certificates which is audited by an approved auditing body and ensures
that the trust’s profit earned within that year must be positive;
d) Report on results of
valuation and revaluation, certificates of valuation of the trust’s existing
real property or real property in which the trust intends to put their
investments (if any), enclosing remarks of legal advisory bodies on the legal
status concerning ownership of real property in which intended investments may
be made and extent of regulatory compliance of real estate contracts to be
effected; report on the trust’s net asset value endorsed by the supervisory
bank that is made at the time of submission of application package.
6. Application package for
the trust’s initial public offering or additional issue of stock certificates,
as prescribed in clause 4 and 5 of this Article, may include one (01) original,
enclosing electronic data files. The original set of application package shall
be sent directly to the State Securities Commission or by post.
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With respect to additional
issue of stock certificates, any amendment, modification or revision must be
publicly informed under the provisions of clause 4 of Article 3 herein.
8. During the period of
processing and consideration of application package by the State Securities
Commission, the fund management company and its related persons shall be
obliged to use information given in the prospectus submitted to the State
Securities Commission in an honest and correct manner in market surveys and,
while doing so, must clarify that such information is unofficial. Such
information must be provided via means of mass media.
9. Within thirty (30) days
of receipt of the full and valid application package as prescribed in clause 4
and 5 of this Article, the State Securities Commission must issue the
certificate of initial public offering of stocks or the certificate of
additional issue of stocks. In case of rejection, the State Securities
Commission shall be obliged to respond in writing with clear reasons for such
rejection.
10. The certificate of
initial public offering of stocks or the certificate of additional issue of
stocks awarded by the State Securities Commission to the fund management
company shall be treated as a written document confirming that the application
package for offer for sale and issue of stocks has conformed to regulatory
requirements and procedures.
Article
5. Offer for sale and distribution of stocks of a real estate investment trust
1. The public offering of
stocks may take place only after obtaining the certificate of registration of
offering of stocks from the State Securities Commission.
2. Within seven (07) days
after the effective date of the certificate of registration of offering of
stocks, the fund management company must publicize the notice of offer as
provided in clause 4 of Article 3 herein and concurrently send it to the State
Securities Commission. The notice of offer must contain all information
required in the Appendix No. 02 hereto.
3. The fund management
company, distributing agency and body underwriting issue of stocks (if any)
must distribute stocks in a fair and public manner and must ensure that
investors may register purchase of stocks within the duration of twenty (20)
days; such duration must be specified in the notice of offer.
In case the number of stock
certificates registered by potential holders exceeds the number of stock
certificates offered for sale, the fund management company shall be obliged to
distribute all of stock certificates obtaining permission for offer for sale to
investors, depending on the ratio of purchase registration by each investor.
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5. The fund management
company shall be obliged to finish distributing stock certificates within
ninety (90) days from the effective date of the certificate of registration for
public offering of stocks. In case of failure to do so within such duration,
the fund management company must request the State Securities Commission in
writing for its decision on extension of the duration of distribution of stock
certificates.
Within seven (07) days of
receipt of the fund management company’s request, the State Securities
Commission shall consider granting its decision on an extension of the duration
of distribution of stock certificates which is, however, restricted to thirty
(30) days. In case of rejection, the State Securities Commission shall be
obliged to respond in writing with clear reasons for such rejection.
6. Within three (03) days
after the date of completion of an offer or upon expiry of the certificate of
registration of offering of stocks, the fund management company must inform the
State Securities Commission and simultaneously make public disclosure of
information as provided in clause 4 of Article 3 herein about the trust’s
incompliance with establishment requirements in either following cases:
a) Fewer than 100 investors
purchase stock certificates, excluding professional securities investors; or
b) Total value of share
capital is less than fifty (50) billion Vietnamese dong or less than the
required minimum value of share capital expected to be raised according to the
trust’s Charter (if any).
7. In case of incompliance
with trust establishment requirements specified in clause 6 of this Article,
within the time limit of fifteen (15) days from the date of completion of an
offer or upon expiry of the certificate of registration of offering of stocks,
the fund management company must refund investors all of their contributed
capital, including any interest amounts that may arise, and must be liable for
costs incurred from such capital mobilization.
8. Suspension or
cancellation of an offering shall be subject to provisions laid down in Article
22 and 23 in the Law on Securities.
9. With respect to
additional issues of stock certificates for the purposes of capital increase,
processes and procedures for issuing the notice of issue or distribution of
rights to purchase stock certificates shall be subject to provisions laid down
in clause 1, 2, 3, 4 and 5 of this Article and others of relevant laws on
securities, applicable to listed organizations and other relevant corporate
laws.
Article
6. Registration for establishment of real estate investment trusts, adjustment
to certificates of registration of establishment of real estate investment
trusts
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a) Application form for
grant of the certificate of registration of establishment of the trust, which
is completed by using the form given in the Appendix 04 hereto;
b) Report on results of an
offering of stocks which is made under the provisions of the Appendix No. 03
hereto, enclosing a document stating the supervisory bank's confirmation of the
amount of capital already raised in each offering and the number of investors
making their equity participation.
2. In case of the additional
issue of stock certificates for the purpose of raising capital, within five
(05) days after end of each issue, the fund management company shall request the
State Securities Commission to adjust the certificate of registration of
establishment of the real estate investment trust. Application package for
adjustment to the certificate of registration of establishment of the real
estate investment trust must include documents referred to in clause 1 of this
Article.
3. Application package for
registration of establishment of the trust and adjustment to the certificate of
registration of establishment of the real estate investment trust must be made
into one (01) original set, enclosing an electronic data file. The original set
of application package shall be sent directly to the State Securities
Commission or by post.
4. Within ten (10) days of
receipt of the adequate and valid set of application documents, the State
Securities Commission shall issue the certificate of registration of
establishment of the trust or the adjusted one. In case of rejection, the State
Securities Commission shall be obliged to respond in writing with clear reasons
for such rejection.
Article
7. Recognition of ownership of stock certificates
1. Within five (05) days
from the effective date of the certificate of registration for establishment of
the trust or of the adjusted one, the fund management company shall be responsible
for recognizing an investor’s ownership of the number of stocks that that have
already purchased and creating the register of investors, containing the
following main information:
a) Name and address of the
main office of the fund management company; name and address of the main office
of the supervisory bank; the trust’s full name; the trust’s ticker symbol used
on a stock market (if any);
b) Total authorized number
of stock certificates; total stock certificates already sold and total share capital
raised;
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d) Date of creation of the
register of investors.
2. Information about
investors in the register is a basis to authenticate that investor’s ownership
of stock certificates.
3. Within ten (10) days
after the effective date of the certificate of registration for establishment
of the trust, the fund management company must finish registering and
depositing stock certificates according to laws on securities registration and
depositing.
4. Within forty five (45)
days from the date on which the State Securities Commission gives its written
recognition of the validity of the certificate of registration for
establishment of the trust, the fund management company must file the
followings to the State Securities Commission:
a) Meeting minutes or report
on vote counting and resolution of the investors’ general meeting on the
trust's representative board and members of the trust's representative board;
b) List and personal
profiles of members of the representative board;
c) Contract with a
supervisory bank, appraisal body or real estate management entity which has
already been ratified and adopted.
Article
8. Listing of stock certificates of real estate investment trusts
1. Within thirty (30) days
from the effective date of the certificate of registration for establishment of
a trust or the adjusted one, the trust's fund management company must prepare a
complete set of documents and list stocks on a stock exchange according to
provisions of laws.
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Section
2. INVESTMENTS OF REAL ESTATE INVESTMENT TRUSTS
Article
9. Investment portfolios and investments of real estate investment trusts
1. Investment portfolios of
a real estate investment trust must correspond to investment goals and policies
already prescribed in the trust’s Charter and announced in the trust’s
prospectus. Each investment portfolio of the trust shall include the following
assets invested in Vietnam:
a) Deposits made at
commercial banks according to banking laws;
b) Money market instruments,
including valuable papers and negotiable instruments stipulated in banking
regulations;
c) Government bonds,
Government-guaranteed bonds and municipal bonds;
d) Listed shares, registered
stocks and bonds listed on Vietnamese stock exchanges;
dd) Unlisted shares,
unregistered shares of listed companies; unlisted bonds of issuing
organizations operating under domestic laws of Vietnam; shares of joint-stock
companies or equity contributions to limited liability companies;
e) Securities and other
assets prescribed according to laws and instructions given by the Ministry of
Finance;
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2. The trust’s fund
management company may make deposits and invest in money market instruments specified
in point a and b of clause 1 of this Article at commercial banks approved by
the trust’s representative board.
3. The composition of
investments in the trust’s portfolio must meet the following regulations:
a) Investing between at
least sixty five percents (65%) and one hundred percents (100%) of net value of
the trust’s assets in real property under the provisions of clause 4 of this
Article;
b) Prohibiting investment of
greater than thirty five percents (35%) of net value of the trust’s assets in
those property referred to in point a, b, c, d, dd and e of clause 1 of this
Article and ensuring investments are subject to the following restrictions:
- Prohibition against any
investment of more than five percents (5%) of total value of the trust’s assets
in securities of an issuing organization, except Government bonds;
- Prohibition against any
investment in more than ten percents (10%) of total outstanding stocks, except
Government bonds;
- Prohibition against any
investment of more than ten percents (10%) of total value of the trust’s assets
in issued stocks of companies having ownership relationships;
c) Total value of borrowed
funds of the trust does not exceed five percents (5%) of net value of the
trust’s assets at the investing time;
d) Prohibition against using
the fund’s capital and assets for lending and loan guarantee purposes, except
investment made in a form of deposit as provided in point a of clause 1 of this
Article; prohibition against using the fund's assets to perform such transactions
as margin trading (i.e. borrowing funds for purchase of securities) and short
selling (i.e. lending securities for sale thereof);
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e) If the trust is
registered as a foreign investor according to clause 3 of Article 3 herein,
during their investments, the trust must comply with relevant laws on
restricted ownership interests of foreign investors.
4. A real estate investment
trust shall be allowed to invest in real estate if it meets the following
requirements:
a) Such real estate is the
one obtaining marketing authorization under laws on real estate business. Real
estate in which the trust invests must be located in Vietnam, may be used for
rent or for the purpose of earning proceeds and must meet other regulations
specified in the Decree No. 58/2012/ND-CP;
b) Real estate in which the
trust invests must be a house or construction project which is completed under
construction laws. With respect to real estate under construction, the trust
may invest in such real estate if the following requirements are met:
- Such real estate is not an
empty land lot where none of construction projects are developed according to
laws on land and associated real property business;
- Such real estate is a
construction project completed on schedule at the time of the trust’s making
capital contribution;
- The trust has entered into
real estate contracts with potential customers, making sure that the
contractual real estate is able to be traded, used or leased immediately after
completion;
- The aggregate value of an
item under construction does not exceed 10% of total asset value;
5. Difference between
proportions of investment components in the trust’s portfolio and restriction
on investment proportions may be permissible according to provisions laid down
in point a, b and c of clause 3 of this Article and due to the following
causes:
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b) Allowable payments are
made by the trust;
c) Merger, acquisition,
purchase of the trust’s shares or public offer to purchase securities of
issuing bodies takes place;
d) The trust has just been
granted registration for its establishment or adjusted its capital or undergone
corporate splitting, consolidation and acquisition for the maximum period of 6
months from the effective date of the certificate of registration for
establishment of the trust or the adjusted one;
dd) The trust is going into
liquidation.
6. Within one (01) year from
the date on which such difference arises due to causes specified in point a, b
and c of clause 5 of this Article, the trust's fund management company must
adjust its portfolio, ensuring conformance to regulations laid down in clause 3
of this Article.
7. In cases where the
difference arises owing to the fund management company's incompliance with
investment restrictions prescribed in laws or the trust's Charter, the fund
management company must immediately adapt the investment portfolio to conform
to laws. The fund management company shall be liable to compensate for the
trust's losses (if any) and incur any cost related to such adjustment to the
trust’s investment portfolio as provided in this clause. Any profit earned must
be recorded into the trust's bookkeeping accounts.
8. With five (05) days from
the date of completion of adjustment to the portfolio, the fund management
company must make relevant information known to the public as provided in
clause 4 of Article 3 herein; simultaneously, must send the State Securities
Commission a notice of any difference arising from the investment portfolio
proportion, causes and time of occurrence or discovery of such difference or
the trust's losses (if any) or any profit that may be earned for the trust,
remedial actions, date and results of implementation of such actions. The
notice must be certified by a supervisory bank.
9. When performing trades in
assets on behalf of the trust, the fund management company must comply with the
following regulations:
a) With respect to listed
securities or those securities registered with stock exchanges, stock trades or
transactions must be carried out through centralized transaction processing
systems administered by Stock Exchanges;
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c) Any trade or transaction
related to real estate must be performed in accordance with Article 14 herein.
Article
10. Net asset value
1. The fund management
company shall be responsible for determining the trust’s net asset value and
net asset value per a unit of stock certificate once a week by using the
following calculation methods:
a) Net asset value is
defined as the trust’s assets minus the trust’s liabilities. The trust’s assets
are calculated at market prices or reasonable value thereof (used in case the
market prices are unidentifiable). The trust’s liabilities are defined as debts
or payment obligations accrued as at the date preceding the valuation date. The
method of determination of market prices or reasonable value of assets in the
trust’s portfolio, value of debts and payment obligations shall be subject to
the principles referred to in the Appendix No. 15 hereto, and the trust’s
internal rules and regulations set out in a valuation handbook. Each real
property must be valued at least annually;
b) Net asset value per a
unit of stock certificate equals the trust’s net asset value divided by total
outstanding units of stock certificates.
2. The fund management
company must compile a valuation handbook containing at least the followings:
a) Principles, criteria for
selection and change of organizations providing price proposals and appraisal
bodies. These principles must be clarified in the trust's Charter as well;
b) Principles and detailed
procedures for implementation of valuation methods which ensure conformance to
provisions of laws, the trust’s Charter, and are ratified at the investors’
general meeting. Principles and procedures for implementation of valuation
methods must be transparent, rational and conformable to international conventions
to ensure consistent application thereof under different market conditions.
3. The valuation handbook
shall be subject to approval of the trust's representative board and be
provided for the supervisory bank as a certification of calculation of the trust’s
net asset value. The list of at least three (03) organizations providing price
proposals that are not related persons of the fund management company and
supervisory bank must be subject to approval of the representative board.
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5. On the following business
day, after the supervisory bank has already certified, information about the
trust’s net asset value or the net asset value per a unit of stock certificate
must be publicized according to provisions laid down in clause 4 of Article 3
herein.
6. The fund management
company may entrust the supervisory bank with determination of the trust’s net
asset value and the trust’s net asset value per a unit of stock certificate. In
this case, the fund management company and the supervisory bank must carry out
the checking, review, inspection and oversight mechanism and procedures to
ensure that such determination of net asset value is conformable to provisions
of laws, and the net asset value is calculated accurately.
7. In case of incorrect
valuation, within twenty four (24) hours from the time of discovery of such
incorrectness, the supervisory bank or the fund management company (to the
extent that the supervisory bank provides service of determination of net asset
value) must inform and request the other to make timely adjustments.
8. Within five (05) days of
discovery of incorrect valuation of net asset value, the fund management
company or the supervisory bank must adjust and publicize information prescribed
in clause 4 of Article 3 herein, and inform the State Securities Commission of
incorrect valuation, including causes, time of occurrence of such incorrect
valuation and corrective actions. Contents of the notice must be signed and
certified by the fund management company and the supervisory bank.
Article
11. Distribution of the trust’s profits
1. A real estate investment
fund must set aside at least 90% of its profits earned within a tax year to pay
investors. The distribution method may be approved in the most recent
investors' general meeting. After the trust's profits within a tax period or
the trust’s accumulated profit is fully transmitted to any other fund as
prescribed in the trust's Charter and fulfilling any tax or other financial
obligation, the remaining amount thereof shall be paid to investors.
2. Distributed profits may
be paid in cash or by giving additionally issued stock certificates. Within
fifteen (15) days before income distribution, the fund management company must
inform its investors. The notice of profit distribution must contain all
information required in the Appendix No. 14 hereto.
3. The trust’s profit
distribution must conform to the following principles:
a) Such distribution must be
subject to regulations of the trust's Charter regarding profit distribution
policies or other regulations set forth in the trust’s prospectus or summary
prospectus;
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c) After distribution, the
trust must maintain adequate capital for payment on debts and other financial
obligations due and ensure that its net asset value is not less than fifty (50)
billion dong;
d) Rates of distributed
profits must be subject to the decision of the investors’ general meeting or
the trust’s representative board on condition that such rates are aligned with
investment targets and conform to regulations on distribution of the trust's
profits;
dd) In case where profits
are distributed by giving stock certificates, the trust must provide adequate
assets as reciprocal capital by setting aside its undistributed post-tax
profits, based on its latest audited or reviewed financial statement.
Article
12. Operating expenses of real estate investment funds
Operating expenses of a real
estate investment fund shall include the followings: Costs of management of the
trust paid to the trust’s fund management company; costs of depositing of the
trust’s assets, costs of supervision paid to the trust’s supervisory bank;
costs incurred from maintenance, operation and exploitation of real estate
which are paid to the trust’s real estate management bodies; auditing costs
paid to auditing organizations; costs of valuation paid to valuing
organizations; charges for legal advice, price proposal and other reasonable
services, remuneration paid to the trust’s representative board; costs incurred
from drafting, printing the prospectus, summary prospectus, financial statement
and other documents, and sending them to investors; costs of public disclosure
of the trust’s information; costs incurred from holding investors’ general
meetings or meetings of the trust’s representative board; costs related to
performing the trust’s asset transactions and other costs prescribed by laws.
Article
13. Management of real property listed in a trust's investment portfolio
1. Before making investment in
a particular real property, the trust’s fund management company must plan the
operation and use of that real property in the next five (05) years. This plan
may be approved by the representative board.
Duration of retention of
real estate listed in the trust’s investment portfolio shall be subject to
point b of clause 1 of Article 91 in the Decree No. 58/2012/ND-CP.
2. The fund management
company must run a department charged with managing the real estate investment
trust that is staffed with professional and qualified personnel meeting the
following requirements:
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b) They have not been
subject to fines or other more severe penalties for their violations that may
arise in the securities, banking and insurance sectors for two (02) recent
years preceding the year of their appointments;
c) In order to manage the
securities investment portfolio of each real estate investment trust, the fund
management company must appoint at least two (02) officers holding fund
management practicing certificates or other international credentials according
to laws on establishment, organization and operation of the fund management company;
d) In order to manage the
real estate investment portfolio of each real estate investment trust, the fund
management company must appoint at least two (02) professional officers holding
accredited valuer’s ID cards; or holding real estate valuation certificates
prescribed in laws on real estate business; and having acquired at least two
(02) years' experience in valuation of real estate at real estate business
organizations, real estate service providers or valuing enterprises.
In cases where a manager of
the trust, prescribed in point c, also meets standards specified in point d,
that manager may be entitled to hold a part-time office as the manager of the
trust's real estate investment portfolio.
3. The fund management
company shall assume the following responsibilities:
a) Act on behalf of the
trust to exercise rights to own and use, and fulfill obligations and
responsibilities to the trust’s assets, in a voluntary and honest manner in the
trust’s best interests;
b) Conduct regular
inspection and oversight, and carry out all necessary activities, with a view
to ensuring that project’s owners, sellers, lessees, hire-purchasers, real
estate management organizations and other partners mentioned in economic
agreements related to the trust’s real estate fulfill their obligations
prescribed in laws on real estate business and other provisions of relevant
laws;
c) Register rights to own
and use the trust’s assets in a timely manner as provided in laws on real
estate business. Ensure sufficient provision of real estate ownership
certificates, certificates of rights to use land or legitimate documents
proving rights to own and use real estate under laws with respect to existing
real property; certificates of construction or documentation regarding projects
and construction designs already approved with respect to real property under
construction; construction designs, as-built dossiers and reports on
commissioning and transfer of real estate with respect to real property
belonging to projects not yet obtaining certificates of ownership rights or
titles; project documentation, construction designs and progress of
construction of residential homes or other structures already obtaining
approval with respect to residential homes and other construction works formed in
the future; and documents, records and other legitimate instruments prescribed
in relevant laws;
d) In cases where the trust
is the co-owner or co-user of a real property, the trust’s fund management
company must ensure that the trust enjoys freedom of disposing of the trust’s
asset portions at any time at the price that are not affected by any third
party, and is vested with all of the following rights:
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- Get involved in giving
opinions and making the decision on important issues, including changes in
business cooperation agreements, real estate management and operation
agreements and other arrangements or economic agreements. In cases where the
trust owns real property in an indirect manner or through ownership of shares
or contributed capital of companies having rights to own real estate, the trust
must be accorded all of rights granted to shareholders and capital contribution
members, including freedom of disposition of assets (e.g. shares or contributed
capital portions) of the trust;
dd) Sign real estate
management agreements and other economic ones with respect to the trust’s
assets as provided in laws on real estate business and other provisions of
relevant laws. In case of signing new real estate management agreements or
renewed ones, within fifteen (15) days from the signature date, the fund
management company shall be responsible for sending them to the State
Securities Commission.
e) Purchase all required
insurance contracts for real property listed in the trust’s investment
portfolio. Insurance agencies must be subject to approval from investors’
general meetings.
g) Enter into cooperation
with the supervisory bank and ensure the supervisory bank keeps custody of all
documents related to the trust’s real property, especially those documents
certifying ownership rights under the provisions of point a of clause 2 of
Article 32 herein.
4. The fund management
company must authorize the real estate management body to keep custody, take
care of, look after, repair, upgrade, operate and commercially use real
property under terms and conditions of real estate management agreements.
Criteria for selection of organizations providing the service of management of
real estate and principles laid down in real estate management agreements must
be subject to regulations of the trust's Charter. Bodies providing the service
of management of real estate and real estate management agreements may be
approved in an investors' general meeting.
5. Real estate management
bodies shall assume the following responsibilities:
a) Carry out regular and
ongoing oversight and management of business, operation and commercial use of
real estate, ensure that real property is managed, operated and used in an
effective and safe manner; ensure that service quality meets criteria and
requirements of the trust's fund management company and other terms and
conditions of real estate management agreements;
b) Comply with laws on real
estate business and provisions of other laws during the period of management,
operation and use of real property. Manage real property according to discreet,
voluntary and honest principles, and in the trust’s best interests;
c) Any repair, maintenance,
upgrade and expansion of operable and usable space, and any change in real
estate structures shall be carried out only after receipt of consent from the
fund management company or the trust’s representative board under terms and
conditions of real estate management agreements.
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dd) Ensure security for all
information related to real estate, business, use and operation of real estate
under their delegated authority. Except competent regulatory authorities, real
estate management bodies shall not be allowed to provide the abovementioned
information for any person or entity, including other business departments of
their own.
e) Real estate management
bodies shall be responsible for compensating for any loss that the trust may suffer
as the result of their negligent act performed during the stage of management
of real estate, even including default, errors or frauds of their staff or
third-party entities or persons providing services related to management of
real estate, unless otherwise decided by investors’ general meeting.
Article
14. Real estate transactions of real estate investment trusts
1. Except transactions
specified in clause 2 of this Article, a trust’s fund management company must
ensure compliance with the following regulations:
a) The buying price of a
real property does not exceed 110%, and the selling price of a real property is
not lower than 90%, of the reference price determined by an appraisal body within
the maximum duration of six (06) months ending on the effective date of a real
estate transaction, unless otherwise decided by the investors’ general meeting.
Where necessary, the investors’ general meeting or the trust’s representative
board may request its fund management company and appraisal bodies to
redetermine the reference price prior to the effective date of a real property
transaction.
In cases where a real
property is valued by multiple appraisal bodies, the reference price shall be
defined as the mean value of prices determined by these entities.
b) The trust’s fund
management company must conduct a poll to collect investors’ opinion in an
investors’ general meeting in the following cases:
- The proposed buying price
is higher than, or the selling price is lower than, those prices referred to in
point a of this clause; or
- A real estate transaction
has higher value than, or makes up 20% of total assets of the trust, after such
transaction occurs; or results in total value of most recent transactions with
the same partner within twelve (12) months which is greater than or equal to
20% of total asset value of the trust after such transaction occurs; or
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c) The trust’s fund
management company must consult with the representative board before performing
a real estate transaction with regard to:
- A real estate transaction
making up between 10% and 20% of total assets of the trust after such
transaction occurs; or resulting in total value of most recent transactions
with the same partner within twelve (12) months which equals between 10% and
20% of total asset value of the trust after such transaction occurs; or
- In other cases prescribed
in the trust’s Charter.
2. The trust’s fund
management company may perform real estate transactions between the trust and
persons below if all requirements set out in clause 3 of this Article are met:
a) Staff of the trust’s fund
management company; members of the trust's Governing Board, Board of Directors
or Members' Board or Chair of the fund management company; major shareholders
or members making equity participation making up more than 5% of the charter
capital of the fund management company, authorized representatives of these
persons; fund management companies; supervisory banks; major investors in the
trust, authorized representatives of major investors (if any); members of the
trust’s representative board;
b) Persons having rights and
interests related to entities or individuals specified in point a of this
clause;
c) Other real estate
investment trusts, even including real estate securities companies put under
the control of a fund management company;
d) In other cases prescribed
in the trust’s Charter.
3. Requirements for carrying
out a real estate transaction prescribed in clause 2 of this Article shall
include the followings:
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b) The trading price meets
regulations laid down in point a of clause 1 of this Article;
c) If a real estate
transaction makes up more than 10% of total assets of the trust after such
transaction occurs; or results in total value of most recent transactions with
the same partner within twelve (12) months which equals more than 10% of total
asset value of the trust after such transaction occurs, such transaction must
be subject to approval from the investors’ general meeting. In such case,
related investors shall not be allowed to exercise their voting rights in the
investors’ general meeting and the decision on approval of such transaction is
granted if the number of investors representing 65% of the remaining votes
agrees;
d) Real estate must be
valued by two appraisal bodies out of which an appraisal body is selected by
the investors' general meeting and another one is designated by the supervisory
bank. Valuation costs shall be recorded as expense entries of the trust;
dd) The appraisal body and
the legal advisory organization must certify that terms and conditions of a
proposed transaction agreement is corresponding to actual market conditions and
such transaction is legal and conformable to provisions of relevant laws.
4. After completing
transactions as provided in point b and c of clause 1 and 2 of this Article,
details about these transactions must be publicized in the trust’s prospectus
or provided for all investors in any form specified in the trust's Charter and
prospectus. Information about transactions shall include the followings:
a) Adequate information
about partners involved and relationship between these partners and the trust;
b) Comprehensive information
about real property involved in transactions, including its type; location;
information about planning in relation to real property; scale and dimension of
the real property to be traded; characteristics, attributes and economic
effectiveness assessed after commercial use/operation of the real property to
be traded (usage ratio/accommodation capacity, etc.), quality of the real
property to be traded; actual state of technical infrastructure, utilities and
community amenities associated with the real property to be traded; legal
status of the real property to be traded, including documents proving rights to
own and use the real property to be traded, and other documents related to
formation of the real property to be traded; history of ownership and use of
the real property to be traded; restrictions on rights to own and use the real
property to be traded (if any); trading prices of the real property to be
traded; rights and interests of third-party persons involved and other relevant
information;
c) The certificate of
valuation of the real property to be traded shall include information regarding
the valued real property; location and scale of the valued real property;
properties and actual state of the valued real property; legal status of the
valued real property; restrictions applied to the valued real property; methods
of valuation of the real property; time of valuation of the real property;
price of the real property and other relevant information;
d) Information about profits
gained from commercial use of the real property before it is traded (enclosing
evidencing documents) and expected profits after transaction;
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5. In all real estate
transactions, the trust’s fund management company must actively and promptly
inform and provide the trust’s supervisory bank and representative board with
adequate documents and information about transactions (before and after they
are performed) within the sufficient duration so that that bank and
representative board exercise their rights to inspect and oversee the trust’s
transactions according to laws, regulations laid down in the trust’s Charter,
terms and conditions of the supervision agreement.
Article
15. Appraisal bodies
1. Investors’ general
meeting shall decide to select at least one (01) appraisal body to render the service
of valuation of the trust's real property within the service duration which is
restricted to two (02) years. Upon expiry of such duration, the trust’s fund
management company shall be responsible for selecting the substitute appraisal
body and recommending it to the investors’ general meeting to seek its
approval.
2. An appraisal body must
meet the following criteria:
a) Such appraisal body must
be a valuing enterprise complying with regulatory requirements for eligibility
for provision of service at the time of conclusion of an agreement with the
trust's fund management company in accordance with laws on valuation, or must
be a prestigious real estate business having competence in valuing real estate
in accordance with laws on real estate business;
b) Such appraisal body must
not be a person related to the trust’s fund management company, supervisory
bank or major investor of the trust; must not be a partner in property
transactions with the trust; must not be a person related to a partner in trades
in the real property that the former plans to value;
c) Such appraisal body must
be staffed with at least three (03) qualified valuers holding valuer's ID cards
that meet regulatory requirements for conformance to valuation regulations at
the time of conclusion of a valuation service agreement; or holding real estate
valuation certificates. These valuers must have at least five (05) years’
experience in providing real property valuation services;
d) Such appraisal body must
be reputable, experienced, and professionally moral and meet other requirements
specified in the trust’s Charter and other criteria of the fund management
company.
3. The fund management
company shall sign valuation agreements only with appraisal bodies already
ratified and approved in the investors’ general meeting. Within fifteen (15)
days from the signature date, the trust’s fund management company shall be
responsible for sending them to the State Securities Commission. The maximum
duration of a valuation agreement (even if it is extended) shall be two (02)
consecutive years. Each valuation agreement may be ratified and approved, and
must contain at least the followings:
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b) Regulations regarding
valuation costs that conform to the principles in which the amount of cost is
not dependent on value of the asset to be valued;
c) Regulations regarding
termination, discharge or extension of duration of agreements;
d) Regulations regarding
authorization that conforms to the principles in which an appraisal body may
authorize another appraisal body meeting regulations laid down in clause 2 of
this Article to render valuation services. Such authorization must obtain the
prior consent from the trust’s representative board.
4. Appraisal bodies and
valuers must comply with the following regulations:
a) They shall not be allowed
to appraise the real property in which they are partners or they are related
persons to partners; shall not be allowed to provide valuation services for
fund management companies in which they are shareholders or capital
contributing members owning at least 5% of the charter capital; or in which
their parents, spouses, children or siblings are members of governing boards,
or chief accounts, members of boards of directors, members' boards or
presidents. Appraisal bodies or valuers shall not be allowed to enter into
trades in assets with the trust as this affects the arm’s length principle
applied to the valuation process;
b) Appraisal bodies and
valuers shall not be allowed to collude with fund management companies or
partners in asset transactions of the trust, or give material benefits to or
impose coercive acts or bribe fund management companies or transaction partners
to falsify valuation results; shall not be allowed to suggest receiving or
receive benefits existing in any form other than contractual service prices;
c) Store documents and
records of valuation; provide documents and records of valuation as requested
in writing by competent regulatory authorities;
d) Obtain permission only to
provide real estate valuation services for a real estate investment trust or
securities company for a time limit of two (02) consecutive years;
dd) Comply with all
regulations on responsibilities and obligations prescribed in laws on
valuation.
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a) Each real property
belonging to the trust’s portfolio must be valued periodically at least once a
year and on any other date as requested by the trust's representative board and
investors’ general meeting. On a three (03)-year basis, all of the trust's real
estate investment portfolios must be revalued, unless otherwise decided in an
investors' general meeting. All valuation or revaluation activities of the
trust shall only be carried out by appraisal bodies approved in an investors’
general meeting;
b) In addition to valuation
carried out in accordance with point a, the trust’s real property must be
revalued before being traded or before the trust issues additional stocks for
capital raising purposes. Revaluation of real property conforming to
regulations laid down in this clause may be unnecessary in the event that the
effective date of transaction does not exceed the time limit of six (06) months
from the most recent valuation date;
c) Appraisal bodies shall
only be allowed to determine the price at a specified place and time according
to valuation standards and ensure such price is appropriate for particular
purposes specified in valuation certificates;
d) Valuation bases are
market value and reasonable value determined according to the principles
conforming to laws on real estate business and laws on valuation. Real estate
value must be determined by using at least two methods. Selection of the
valuation method and results must be explained in detail. The valuation method
must be selected according to the valuation handbook already approved in the
investors' general meeting and the trust's representative board as provided in
clause 2 of Article 10 herein, conventions and provisions of laws on real
estate business and other laws on valuation.
Process and method of
valuation of real property listed in the trust's portfolio shall contain
information given in the Appendix No. 15 hereto;
dd) Data and information
used in valuation activities must be updated in a sufficient, accurate and
timely manner and must be adjusted in a logical and appropriate manner.
Adjustment to data and information must be explained in full and detail;
e) Each real property must
be appraised by an appraisal body only two consecutive times at maximum;
g) Periodically, real estate
management bodies shall be responsible for preparing annual review reports on
valuation of real property that has already been valued within the reporting
year for submission to the fund management company before it compiles a general
report and submit it to investors’ annual general meetings. The valuation
activity report must contain all information as mentioned in the Appendix No.
16 hereto.
6. After managing to fulfill
their assigned tasks, valuers of appraisal bodies who are directly entrusted
with valuation of real property must make valuation result reports and bear legal
liability for valuation results and their comments made in valuation result
reports. Each valuation result report must conform to Vietnam's valuation
standards and contain at least information given in the Appendix No. 17 hereto.
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8. Appraisal bodies must
send a written notice of valuation results available in a form of valuation certificates
to the trust’s fund management company.
9. Valuation certificates
must be clear, accurate and sufficient, and must avoid any misinterpretation in
order for investors to make their own decisions. Valuation certificates shall
only be valid for assets valued at the predetermined valuation dates; shall
have binding liabilities to appraisal bodies for valuation results and comments
given in valuation certificates. Valuation certificates must contain at least
the information required in the Appendix No. 18 hereto.
10. After a valuation date,
if there are major changes affecting value of the valued asset, appraisal
bodies and valuers shall be responsible for mentioning such changes in their
valuation reports and certificates. Where necessary, the trust’s fund
management company shall be obliged to issue another prospectus amending or
replacing the previous valuation certificate.
Section
3. GENERAL MEETINGS OF INVESTORS AND REPRESENTATIVE BOARD
Article
16. Rights and obligations of investors and investors’ general meeting
1. Rights and obligations of
investors in a real estate investment trust shall be implemented in accordance
with the trust's Charter, provisions of laws on establishment and management of
closed-end funds; regulations laid down in laws on securities and enterprises
with regard to corporate governance, applicable to public companies.
2. Rights and obligations of
investors in a real estate investment trust shall be implemented in accordance
with the trust's Charter, provisions of laws on establishment and management of
closed-end funds; regulations laid down in laws on securities and enterprises
with regard to corporate governance, applicable to public companies.
Article
17. Trust’s representative board
1. The trust’s
representative board representing investors is elected at investors’ general
meetings or receives investors’ written opinions. The board may be composed of
between three (03) and eleven (11) members with two-thirds (2/3) of its
membership that is not persons related to the trust’s fund management company
or supervisory bank. Each board’s member holds a vote.
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3. Term of office,
standards, membership, nomination, self-nomination, election and recruitment of
additional members to the board; rights, responsibilities and obligations of
the board's members shall be subject to regulations laid down in the trust's
Charter, conformable to laws on establishment and management of closed-end
funds; regulations laid down in laws on securities and enterprises with regard
to corporate governance, applicable to public companies.
Section
4. TRUST RESTRUCTURING
Article
18. Amalgamation and merger of real estate investment trusts
1. A real estate investment
trust is amalgamated or merged with another one according to the decision made
by the investors' general meeting. At least thirty (30) days before an
investors' general meeting, the trust's fund management company shall be
obliged to provide investors with documents related to amalgamation and merger,
including:
a) Amalgamation and merger
plans attached to the report on analysis of amalgamation and merger that
contains information specified in the Appendix No. 11 hereto;
b) Draft amalgamation and
merger agreement containing terms and conditions regulated in the Appendix No.
12 hereto;
c) Annual financial
statement already audited and quarterly financial statements of all of
amalgamating or merging funds compiled till the most recent quarter;
d) Draft Charter, prospectus
or summary prospectus of the amalgamated fund; the trust’s Charter, prospectus
and summary prospectus of the merged fund.
2. Within ten (10) days from
the date on which the investors’ general meeting makes its decision to approve
amalgamation or merger, the trust's fund management company must inform such
decision to creditors. Within thirty (30) days of receipt of such notice,
creditors shall have the right to request the trust in writing to repay
borrowed funds. If such written request is not sent to the trust’s fund
management company within the above-stated time limit, creditors shall be
considered not to request the amalgamating or merging fund to repay loans
before amalgamation or merger. Contractual obligations to repay loans can be
implemented by the amalgamated or merged fund.
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4. Fund management company
and representative board shall assume the following responsibilities:
a) Provide information about
amalgamation and merger processes in an adequate, timely, accurate and honest
manner to investors;
b) Rights and obligations
may be handled according to agreements between involved parties according to
the voluntary principle and regulations laid down in laws;
c) Pay the trust’s debts to
creditors at the request of creditors. Such debt payment must be finished by
the amalgamation or merger date at the latest;
d) Before investors' general
meeting is held to collect investors' opinions on amalgamation and merger, real
property must be revaluated under laws on valuation.
Article
19. Processes and procedures for amalgamation and merger of real estate
investment trusts
Processes, procedures and
documentation requirements for amalgamation and merger of real estate
investment trusts shall be conformable to regulations of laws on establishment
and management of closed-end funds, including the written request for issuance
or modification of certificate of registration for establishment of an
amalgamated or merged real estate investment trust which is made using the form
given in the Appendix No. 10 and No. 13 hereto.
Article
20. Extension of life spans of real estate investment funds
The life span of a trust
shall be extended, subject to laws on establishment and management of closed-end
funds and by using the request form for extension of the trust’s life span
given in the Appendix No. 19 hereto.
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1. Processes, procedures and
documentation requirements for closure of a real estate investment trust shall
be subject to laws on establishment and management of closed-end funds.
Required documentation includes the written notice of closure and the report on
closure of the trust prepared using the form given in the Appendix No. 19 and
No. 20 herein.
2. In the course of closure
of the trust, liquidation of the trust's assets must conform to regulations on
trades in assets applied to real estate investment trusts as provided in clause
9 of Article 9 herein.
Chapter
III
REAL ESTATE
SECURITIES COMPANIES
Section
1. ESTABLISHMENT OF REAL ESTATE SECURITIES COMPANIES
Article
22. General provisions regarding real estate securities companies
1. Naming of a real estate
securities company shall be subject to corporate laws and its name shall be composed
of the followings:
a) The phrase “real estate
securities company”;
b) Proper name.
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3. Real estate securities
company is not an organization doing real estate business as provided in laws
on real estate business. A real estate securities company shall not be allowed
to carry out business, production and service provision activities while it
shall be allowed to make investments and entrust its capital to a fund
management company for investment purposes. Such entrusted capital
administration shall be subject to the supervisory bank's supervision.
4. All assets of a real
estate securities company must be registered in the name of a securities
investment company as their owner and must be fully deposited at the trust’s
supervisory bank. In case of cash, such cash must be deposited in a bank
account registered in the name of the securities investment company. In case of
real property or assets other than securities already registered or deposited,
all original documents evidencing asset ownership must be deposited in a full
and timely manner at a supervisory bank.
A securities investment
company's property owned by shareholders according to the proportion of their
contributed capital is not the property of the fund management company or
supervisory bank. Fund management companies may use property of securities
investment companies for the purpose of settling payment obligations of
securities investment companies, but shall not be allowed to use such property
as payments or security for liabilities and other payment obligations of their
own or other persons or entities in any form and circumstance.
5. Real estate securities
companies shall be prohibited from establishing branches, transaction offices
and representative offices. Securities investment companies can use offices of
fund management companies as theirs.
6. Real estate securities
companies shall not be authorized to recruit employees. Directors (Directors
General), Deputy Directors (Deputy Directors General) of real estate securities
companies are the trust’s governors who are appointed by fund management
companies, meeting regulations laid down in clause 2 of Article 13 herein, and
complying with regulations as applied to licensed securities dealers, or with
laws on establishment, organization and operation of fund management companies
as applied to the trust’s governors. The aforesaid persons may act on behalf of
fund management companies to enter into and carry out securities transactions
or economic agreements under their authority delegated by securities investment
companies.
7. Real estate securities
companies shall be allowed to issue only one type of shares and shall not be
obliged to redeem shares that they have already issued, except as such shares
are redeemed for the purposes of elimination in case of amalgamation or merger
with other securities investment companies.
8. In cases where the
charter of a real estate securities company prescribes that a foreign investor
may own more than 49% of its charter capital, the company must register its
stock code and shall be bound by laws on ownership restrictions as applied to
foreign investors.
9. The Charter of a real
estate securities company and its prospectus shall be created using the form
given in the Appendix No. 05 and No. 06 hereto. Any revision of the Charter
must be proposed to seek approval from a shareholders’ general meeting of a
securities investment company. If permitted by the Charter of a real estate
securities company to make such revision, the trust's fund management company
and the governing board of the real estate securities company may correct
grammatical, spelling or syntactic errors in the company's Charter that are not
likely to affect the Charter’s contents without needing to receive consent from
the shareholders’ general meeting. After such revision, the trust’s fund
management company and the governing board of the real estate securities
company must inform shareholders of which information is revised.
10. Public disclosure of
information of a real estate securities company shall be subject to regulations
laid down in clause 4 of Article 3 herein.
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1. The public offering and
issue of shares of a real estate securities company shall include the initial
public offering thereof for the purpose of raising funds for its establishment,
and the issue thereof for the purpose of increasing capital.
2. Application and
documentation requirements, processes and procedures for registration of the
public offering and additional issue of shares of a real estate securities
company shall conform to regulations laid down in clauses 2, 3, 4 and 5 of
Article 4 herein, and those regulations laid down in laws on establishment,
organization and operation of public investment companies.
Article
24. Distribution of shares of real estate securities companies, certification
of ownership interests and disbursement
Distribution and
certification of ownership of shares and disbursement shall be subject to regulations
laid down in Article 5 and 7 herein and regulations laid down in other laws on
establishment, organization and operation of public investment companies.
Article
25. Eligibility and documentation requirements, processes and procedures for
establishment of real estate securities companies
Eligibility and
documentation requirements, processes and procedures for establishment of a
real estate securities company shall be subject to regulations laid down in Article
79 in the Decree No. 58/2012/ND-CP and other regulations of laws on
establishment, organization and operation of public investment companies.
Summary reports on results of offering of shares and application forms for
grant of establishment and operation licenses of securities investment
companies shall be prepared by using the form given in the Appendix No. 03 and
No. 04 hereto.
Section
2. OPERATION OF REAL ESTATE SECURITIES COMPANIES
Article
26. Investment portfolios and investment operations of real estate securities
companies
Investment portfolios and
investment operations of real estate securities companies shall conform to
regulations laid down in Article 81 in the Decree No. 58/ND-CP and Article 9,
10, 11, 12, 13, 14 and 15 herein.
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Article
27. Rights and obligations of shareholders and shareholders' general meetings
1. Rights and obligations of
shareholders making equity contribution to real estate securities companies
shall be implemented in accordance with the corporate Charter, provisions of
laws on establishment, organization and operation of public securities
companies; regulations laid down in laws on securities and enterprises with
regard to corporate governance, applicable to public companies.
2. Rights, obligations of,
processes, procedures and requirements for, convening shareholders’ general
meetings shall be carried out in accordance with the corporate Charter,
provisions of laws on establishment, organization and operation of public
securities companies; regulations laid down in laws on securities and
enterprises with regard to corporate governance, applicable to public
companies.
Article
28. Governing boards of real estate securities companies
1. Governing board of a real
estate securities company must conform to regulations laid down in Article 80
in the Decree No. 58/2012/ND-CP and other relevant regulations regarding
organization and operation of public investment companies.
2. The board must have at
least an independent member qualified and experienced in the real estate and
real property appraisal sector; another independent member having relevant
qualifications and working experience in the securities investment analysis or
asset management sector; and the last member having professional qualifications
in laws.
3. Nomination,
self-nomination, election, standards and eligibility of the board’s members;
rights, obligations of the board’s members shall be carried out in accordance
with the corporate Charter, provisions of laws on establishment, organization
and operation of public securities companies; regulations laid down in laws on
securities and enterprises with regard to corporate governance, applicable to
public companies.
Section
4. APPROVED CHANGES AND RESTRUCTURING
Article
29. Increase or decrease in charter capital and changes that must be approved
by real estate securities companies
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Article
30. Amalgamation, merger, dissolution and withdrawal of establishment and
operation licenses of real estate securities companies
Amalgamation, merger,
dissolution and withdrawal of establishment and operation license of a real
estate securities company shall be subject to regulations laid down in Article
83, 84 and 85 in the Decree No. 58/2012/ND-CP and other regulations of laws on
establishment, organization and operation of public investment companies.
Chapter
IV
SUPERVISORY
BANKS
Article
31. General provisions concerning supervisory banks
1. The supervisory bank
selected by the trust’s fund management company must meet requirements referred
to in clause 6 of this Article, clause 1 of Article 98 in the Law on Securities
and must seek approval from the investors’ general meeting of the trust and the
shareholders’ general meeting of the securities company.
2. The supervisory bank must
be absolutely independent of and separate from the trust‘s fund management
company for which such bank provides supervisory services.
3. Members of the governing
board, board of directors and staff of the supervisory bank who are tasked with
directly keeping custody of assets of the real estate investment trust or the
real estate securities company and supervising asset management activities of
the trust's fund management company (hereinafter referred to as operations
staff or personnel) must not be persons related to or involved in governance
and management of the fund management company, or having ownership
relationships, making capital contribution to, holding shares of, or borrowing
or lending funds from/to, the fund management company for which the supervisory
bank provides its supervisory services and vice versa.
4. The supervisory bank,
members of the governing board, members of the board of directors and operations
staff must not be business partners in sale and purchase of assets of the real
estate investment trust and/or the real estate securities company. The
supervisory bank may only be a business partner in forex transactions or
securities transactions performed through the transaction system of a Stock
Exchange.
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6. In order to supervise
performance of the real estate investment trust, the real estate securities
company and the supervisory bank must have at least two (02) operations
officers holding the following qualifications:
a) Certificates in
securities law and stock market;
b) Basic certificates in
securities and stock market; or certificates of practicing in securities or international
certificates in analysis of CFA securities investment at the level I and higher
(Chartered Financial Analyst level 1) or CIIA (Certified International
Investment Analyst) at the level I or above; or practicing certificates in
securities business issued at member countries of the Organization for Economic
Co-operation and Development (OECD);
c) Real estate appraisal
certificates prescribed by laws on real estate business, or valuer’s ID cards;
or have passed valuer’s tests in the following subjects: (i) Price formation
bases; (ii) Valuation principles and methods; (iii) Real estate appraisal and
(iv) Corporate valuation.
d) Certificates in
accounting or auditing or chief accountants; international certificates in the
accounting and auditing sector, including ACCA (Association of Chartered
Certified Accountants), CPA (Certified Public Accountants), CA (Chartered
Accountants) and ACA (Associate Chartered Accountants) certificates.
7. Within ten (10) days from
the effective date of a supervision agreement, the supervisory bank shall be
obliged to report to and send the followings to the State Securities
Commission:
a) Supervision agreement;
b) Information sheet,
enclosing valid copies of professional certificates, regulated in clause 6 of
this Article, of operations officers appointed by the supervisory bank to
supervise and keep custody of assets of the real estate investment trust and/or
the real estate securities company;
c) Commitments of the
supervisory bank and its operations staff on compliance with the requirement
that they not be persons related to or having ownership relationships with,
making capital contribution to, holding shares of, borrowing or lending funds
from/to, the trust's fund management company for which the supervisory bank provides
its supervisory services.
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9. Within seven (07) days of
receipt of sufficient and valid documentation as provided in clause 7 of this
Article, the State Securities Commission must certify acknowledgement of such
report from the supervisory bank and documentation of operations staff
appointed by the supervisory bank to supervise and keep custody of assets of
the real estate investment trust and the real estate securities company.
Article
32. Depositing activities carried out by the supervisory bank
1. The supervisory bank may
select a foreign financial organization having competence in depositing assets
as an auxiliary depository to keep custody of assets that the real estate
investment trust or the real estate investment company invests in foreign
countries in accordance with provisions of relevant laws. Depositing
authorization must conform to the following regulations:
a) Auxiliary depository must
be a member depository as provided in domestic or foreign laws;
b) Depositing authorization
must be carried out on the basis of an agreement between the supervisory bank
and auxiliary depository. The agreement must clarify differences in rights,
obligations and responsibilities between the supervisory bank and the auxiliary
depository. The auxiliary depository shall only be allowed to follow legal
orders or directions of the supervisory bank;
c) Deposited assets must be
clearly certified to be property of the real estate investment trust or the
real estate securities company for which the supervisory bank provides its
services;
d) The supervisory bank
shall be responsible for inspecting and overseeing operations of the auxiliary
depository as well as incurring costs related to authorization for supervision
and depositing of assets of the real estate investment trust or the real estate
investment company;
dd) Foreign auxiliary
depository may renew its depositing with the stock depository of which the
former is a member in accordance with laws of the host country. The trust’s
assets must be registered by the auxiliary depository to be those under the
ownership by the real estate investment trust or the real estate securities
company in accordance with relevant laws;
e) The supervisory bank must
have adequate information about all of assets under the ownership by the real
estate investment trust or the real estate securities company, including types,
quantity, depository location and depository's name. The supervisory bank shall
be responsible for ensuring the trust’s assets are registered, deposited and
recorded provided that they are always identified as those assets under the
ownership by the trust or the securities investment company.
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a) Request the trust’s fund
management company to obtain registration for assets of the trust or the real
estate securities company in their name as soon as possible under terms and
conditions of the economic agreement between the trust (via the trust's fund
management company) or the securities investment company and a partner, and
according to relevant laws; ensure all of assets of the trust or the securities
investment company existing within the territory of Vietnam obtain property
rights accorded to the trust or the securities investment company, and are
fully deposited with the supervisory bank, even including credit agreements and
bankbooks, etc. according to the following principles:
- In case of assets
obtaining registration for property rights, they must be registered and
recorded in the name of the real estate investment trust or the real estate
securities company as an owner thereof, except as assets have to be registered
and recorded in the name of the supervisory bank or the auxiliary depository or
the fund management company according to relevant laws, and deposited at the
supervisory bank. Original copies of legal documents certifying rights to own
assets must be deposited and fully stored in vaults of the supervisory bank,
except in case of securities already registered and deposited by the central
system. In case of assets being real property, the supervisory bank must ensure
adequacy of legal documents on ownership of or title to them in accordance with
regulations laid down in point c of clause 3 of Article 13 herein. In case
issuing stocks in a form of booking, or transferring ownership rights to the
trust or the securities investment company, has not yet been completed,
original sales agreements and payment transactions must be deposited with the
supervisory bank;
- In case where assets have
not been registered for ownership thereof or ownership thereof has not yet been
transferred to the real estate investment trust or the securities investment
company by expiry dates specified in transfer and issuance agreements, the
supervisory bank shall be responsible for informing the trust's representative
board, the governing board of the securities investment company and the State
Securities Commission in writing of such situation.
- In case of assets which
have not yet obtained registration for ownership rights, the supervisory bank
shall be responsible for cooperating with issuing bodies, organizations
registering the shareholder's register or other equivalent entities on review
of quality and value of the trust’s assets, and ensuring that depositing
conforms to regulations laid down in point e of clause 1 of this Article;
- In case of bank deposits,
the supervisory bank shall have rights and responsibilities to request the
trust’s fund management company to provide adequate information about deposit
agreements and amounts of the real estate investment trust or the real estate
securities company. The supervisory bank shall be responsible for cooperating
with banks receiving deposits of the trust or the securities investment company
on checking balances in saving accounts and value of deposit agreements;
b) Take control of and
deposit assets of the trust and the real estate securities company separately
from those assets of other entities or persons, including the supervisory
bank’s assets.
c) Payment on trades in
listed stocks and registration for stock trades must conform to the spot trade
principles and other clearing and settlement principles prescribed in laws.
Payment on trades in other assets shall be made according to legal commands or
directions of the trust’s fund management company and other relevant laws.
Money must be transmitted through wire transfer, cash payment, or assets must
be transferred to, receivers designated by the real estate investment trust or
the real estate securities company or bank accounts of the trust or the real
estate securities company. Payment value must match quantities, prices of
assets and amounts specified in payment evidencing documents;
d) Fully, strictly and duly
observe legal commands and directions of the trust’s fund management company to
carry out rights and obligations related to ownership rights to assets of the
real estate investment trust or the real estate securities companies in a
sufficient and timely manner, including procedures for payment and finalization
of taxes, applicable to the trust and the securities investment company;
dd) Certify reports on
assets of the trust and the real estate securities company established by the
trust’s fund management company, ensuring that quantities of assets specified
in reports are correct, adequate and correspond to the current state of these
assets kept in the custody of banks;
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3. If assets of the real
estate investment trust or the real estate securities company existing in
material or non-material forms, whether registered in the ownership name of the
trust or the real estate securities company or not (if they do not obtain ownership
registration in accordance with laws), are deposited with the supervisory bank
and the auxiliary depository (if any), they shall be the property of the trust
and the real estate securities company, not the supervisory bank or the trust’s
fund management company. The supervisory bank shall not be allowed to use
property of the trust or the securities investment company to repay or provide
security for repayment of debts of its own, or pay or provide guarantee for
third parties, including the trust’s fund management company.
4. The supervisory bank must
have the technical system appropriate to receive, monitor, execute and record
transactions related to assets through accounts of the real estate investment
trust or the real estate securities company, except as specified in written
directives of the trust’s fund management company. This system must meet the
following basic requirements:
a) Having the accounting
book used for recording full and complete information about assets of the trust
and the securities investment company. All changes related to assets must be
documented in a sufficient, accurate and timely manner;
b) Collect, pay and account
for share dividends, bond interest, equity interest and other income;
c) Carry out entries and pay
expenses;
d) Receive and carry out
entries recorded in stock accounts from additional issues or restructuring of
issuing bodies and other related adjustments.
5. The supervisory bank
shall be responsible for fully compensating the real estate investment trust
and the real estate securities company for any loss of their assets deposited
and stored in vaults of banks as provided in point a of clause 2 of this
Article that may results from errors, mistakes or fraudulent acts of the bank’s
staff, or negligence or carelessness of the bank, unless otherwise decided by
an investors' general meeting or shareholders' general meeting held by the real
estate securities company.
6. The supervisory bank
shall have the burden of paying full compensation to the real estate investment
trust or the real estate securities company to the extent that the auxiliary
depository causes any loss of assets of the trust or the real estate securities
company, except if:
a) Such loss results from
force majeure situations or any event beyond the supervisory bank’s control
which have already been prescribed in the clause of exemption of liability of
the supervisory bank arising from these situations or events in a supervision
agreement;
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c) The supervisory bank has
already fulfilled its assessment responsibilities and other assigned tasks in
accordance with laws.
Article
33. Depositing tasks of supervisory banks
1. The scope of supervision
shall be limited to operations of the trust's fund management company related
to the trust or the securities investment company under the bank’s supervisory
competence.
2. Responsibilities of the
supervisory bank for supervision of investments of the fund management company
over assets of the real estate investment trust or the real estate securities
company:
a) Collaborate with the
trust’s fund management company in periodically reviewing internal rules of
principles and methods of valuation of net assets of the real estate investment
trust or the real estate securities investment company; overseeing valuation of
net assets; inspecting value of net assets per each fund unit or share unit of
the securities company to ensure that such value is calculated in a correct and
accurate manner and according to laws and rules of the Charter of the trust or
the securities investment company;
b) Oversee investments and
asset transactions of the real estate investment trust or the real estate
securities company, carry out re-checks in order to ensure the type of invested
assets and the structure of investment portfolio are consistent with
regulations on investment or borrowing restrictions according to laws and the
Charter of the trust or the securities investment company; oversee asset
transactions of the trust or the securities investment company with the trust's
fund management and related persons in order to ensure conformance to laws and
the Charter of the trust or the securities investment company;
In case of finding any
violation against laws, the supervisory bank must report this to the State
Securities Commission and inform the trust’s fund management company within
twenty four (24) hours from the date of discovery of such violation, and must
request corrective actions or mitigation of consequences of such violation by
the prescribed deadline;
c) Oversee processes for and
inspect the results of amalgamation, merger, dissolution or liquidation of
assets of the real estate investment trust or the real estate securities
company;
d) Oversee and ensure
legitimacy of, and make payments by only using, assets of the real estate
investment trust or the real estate securities company for expenses prescribed
in laws and regulations laid down in the Charter of the real estate investment
trust or the real estate securities company;
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e) Certify reports on net
asset value, investments and investment portfolios of the real estate
investment trust or the real estate securities company established by the fund
management company.
3. The supervisory bank
shall be responsible for creating and storing documents and records in
documentary and electronic form which are used for certifying compliance of
operations of the supervisory bank for a period of ten (10) years with respect
to the trust's fund management company in accordance with laws as provided in
the Appendix No. 21 hereto. These documents and records must be provided upon
the written request of the State Securities Commission.
4. The supervisory bank
shall be responsible for providing information necessary for the trust’s fund
management company or the approved auditing organization in a timely, adequate
and accurate manner (according to the written request of the trust’s fund
management company) in order to these entities to fully implement their rights
and obligations to the trust in accordance with laws, the Charter of the trust
or the securities investment company.
5. The supervisory bank
shall reserve the right to request the trust’s fund management company to
promptly provide necessary and any other relevant documents and information in
order to fulfill rights and obligations to the trust or the securities investment
company in accordance with laws. The supervisory bank shall be responsible for
securing all documents and information received from the trust’s fund
management company in accordance with laws.
6. The supervisory bank may
provide fund governance services, including valuation of net assets, management
of the register of real estate investors, the register of investors of the real
estate investment trust and shareholders’ registration numbers of the real
estate securities company and other relevant services. The division providing
services of governance of the trust under the control of the supervisory bank
must separate its personnel and system of customer’s electronic data from
divisions having supervisory competence and other business divisions of the
supervisory bank. In cases where the supervisory bank provides the service of
net asset valuation, the service division must hire staff holding chief
accountant’s degrees or auditing or accounting certificates or other
international qualifications in the accounting field, such as ACCA (Association
of Chartered Certified Accountants) and CPA (Certified Public Accountants).
7. In cases where the
trust’s fund management company fails to take actions to reinstate the posture
of the real estate investment trust or the real estate securities company
within the duration specified in clause 6 and 7 of Article 9 herein, the
supervisory bank shall be responsible for reporting to the State Securities
Commission within seven (07) days from the date on which the supervisory bank
sends its notice to the trust’s fund management company. In this case, the
supervisory bank shall have the right to observe legal transaction commands and
directions of the trust’s fund management company on condition that it does not
result in the situation in which the trust’s investment portfolio violates laws
and other regulations laid down in the Charter of the trust or the securities
investment company.
8. In cases where the
trust’s fund management company has to pay compensation to the trust or the
real estate securities company or investors referred to in clause 7 of Article
9 herein, the supervisory bank must collaborate with the trust’s fund
management company in making payments to investors in a timely and adequate
manner according to legal directions of the trust’s fund management company.
The supervisory bank having joint liability in collaboration with the trust’s
fund management company shall be responsible for compensating the trust, the
securities investment company or investors for any loss arising from the
supervisory bank's failure to promptly fulfill their responsibilities for
supervision of investments made by the trust or the securities investment
company, and identifying net asset value of the trust or the securities investment
company and performing other tasks of supervision in accordance with laws.
Compensation rate shall be subject to terms and conditions of the signed
agreement or arrangement between the trust’s fund management company and the
supervisory bank.
Article
34. Termination of rights and obligations of supervisory banks
1. A supervisory bank’s
rights and obligations to a trust or a real estate securities company shall be
terminated in the following situations:
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b) The supervisory bank
unilaterally terminates the supervision agreement;
c) The real estate
investment trust or the real estate securities company ends its life span, is
dissolved, or is an amalgamating or merging entity;
d) Such termination is subject
to the decision of an investors’ general meeting of the real estate investment
trust or a shareholders’ general meeting of the real estate securities company.
2. In the cases referred to
in clause 1 of this Article, the supervisory bank’s rights and obligations to
the trust or the real estate securities company may be transferred to another
supervisory bank under the provisions of Article 35 herein. The supervisory
bank may terminate the supervision agreement only when it has completely
transferred rights and obligations to the substitute bank.
3. If the supervisory bank
changes its legal personality, the new bank shall inherit all rights and
obligations to assets deposited or kept in the custody of the preexisting bank.
Article
35. Change of supervisory bank
1. In case of change of a
supervisory bank, the trust’s fund management company shall be obliged to
report this to the State Securities Commission and send the report enclosing
the followings:
a) Written notice of change
of the supervisory bank signed by the trust’s fund management company and the
supervisory bank. The notice must contain clear reasons for change and enclose
the commitment of the supervisory bank on the full transfer of rights and
obligations to assets of the trust and the securities investment company to the
substitute supervisory bank;
b) Meeting minutes and
decision issued by a general meeting of investors or shareholders about change
of the supervisory bank. These documents must clarify the recommended
supervisory bank; approval of plans for transfer of assets of the old
supervisory bank to the substitute supervisory bank;
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d) Amended Charter of the
trust or the securities investment company;
dd) Plans to transfer rights
and liabilities between banks, even including the interval period of each
transfer, and methods for handling of issues concerning rights and obligations
of related parties.
2. Documentation prescribed
in clause 1 of this Article shall be made into one (01) original set, enclosing
the electronic file. The original set of application package shall be sent
directly to the State Securities Commission or by post.
3. Within ten (10) days of
receipt of all valid documents as prescribed in clause 1 of this Article, the
State Securities Commission may revise information about change of the
supervisory bank that is inscribed on the certificate of registration for
establishment of the trust, or the establishment and operation license of the
securities investment company. In case of rejection, the State Securities
Commission shall be obliged to respond in writing with clear reasons for such
rejection.
4. The supervisory bank’s
rights and obligations to the trust or the real estate securities company may
be transferred to another supervisory bank. The supervisory bank may terminate
the supervision agreement only when it has completely transferred rights and
obligations to the substitute bank. The substitute supervisory bank must make
and send State Securities Commission the transfer report in the presence of
both banks which is certified by the trust’s fund management company, the
representative board and the governing board of the securities investment
company.
5. Within ten (10) days from
the date of completion of change of the supervisory bank as provided in clause
3 of this Article, the trust’s fund management company shall be responsible for
informing such change to the real estate investment company or the real estate
securities company in accordance with relevant laws.
6. If the supervisory bank
changes its legal personality, the new bank shall inherit all rights and
obligations to assets deposited or kept in the custody of the preexisting bank.
Chapter
V
REPORTING
OBLIGATIONS
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1. A fund management company
must send the State Securities Commission a periodic report as follows:
a) Weekly report on change
in net asset value of the real estate investment trust or the real estate
securities company, made by using the form given in the Appendix No. 25 hereto;
b) Monthly, quarterly or
annual report on investments of the real estate investment trust or the real
estate securities company, made by using the form given in the Appendix No. 22
hereto;
c) Half-year and full-year
review report on performance of the real estate investment trust or the real
estate securities company, including basic contents specified in the Appendix
No. 24 hereto, enclosing valuation or revaluation results reports made by
valuing bodies within the reporting year (using the form given in the Appendix
No. 17 hereto) and annual reports on results achieved from use and management
of real property, made by the real estate management body;
d) Prospectus, summary
prospectus; audited quarterly, semiannual and annual financial statements of
the trust or the securities investment company;
2. Documents referred to in
clause 1 of this Article must be provided free of charge to investors on the website
of the trust, or sent directly to the email address of each investor or in
other forms specified in the trust’s Charter, the Charter of the securities
investment company or the prospectus.
3. The investor may refuse
to receive those documents regulated in clause 2 of this Article. As requested
by an investor, the trust’s fund management company shall be obliged to inform
procedures for management of risks, clarify restrictions, methods of prevention
and management of risks likely to arise during use for the purposes of
management of assets of the trust or the securities investment company.
4. Time limits for
submission of reports:
a) As for monthly reports,
the time limit is ten (10) days from the end date of the reporting month; b) As
for quarterly reports, the time limit is twenty (20) days from the end date of
the reporting quarter; c) As for semiannual reports, the time limit is sixty
(60) days from the end date of the second quarter;
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5. In addition to reports
specified in this Article, where necessary, in order to protect common
interests and individual interests of each investor, the State Securities
Commission can request the trust’s fund management company to report on
activities of the trust or the securities investment company.
6. The trust’s fund
management company shall report to the State Securities Commission within forty
eight (48) hours of receipt of a request for submission of report as provided
in clause 5 of this Article.
7. Reports submitted to the
State Securities Commission and electronic versions thereof must be sent.
Article
37. Reporting obligations of supervisory banks
1. A supervisory bank must
prepare and send the State Securities Commission a monthly, quarterly or annual
report on activities of management of assets of the trust or the securities
investment company, prepared by the trust’s fund management company by using
the form stipulated in the Appendix No. 23 hereto. Supervisory reports of the
supervisory bank must make assessments of compliance with laws and regulations
of the Charter of the trust or the real estate securities company, including
the following assessments:
a) Regulatory compliance of
the trust’s fund management company of investment activities and transactions
of the trust or the securities investment company;
b) Determination of value of
net assets of the trust or the real estate securities company. This assessment
provides details about cases of incorrect valuation of assets of the trust or
the securities investment company (if any);
c) Issuance of stock
certificates or offering of shares of the real estate securities company;
d) Any violation committed
by the trust’s fund management company and recommendations about solutions and
mitigation actions.
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a) The trust’s fund
management company is in breach of laws on securities and stock markets;
b) Losses resulting from
management of assets of the trust’s fund management company are substantial and
expenses for compensation for consequences of such losses are too expensive;
c) Any other situation as
regulated by the State Securities Commission arises.
3. The supervisory bank must
comply with regulations applied to fund management companies as provided in
clauses 4, 5, 6 and 7 of Article 36 herein.
Chapter
VI
IMPLEMENTATION
PROVISIONS
Article
38. Entry into force
This Circular shall enter
into force on July 1, 2013.
Article
39. Implementation responsibilities
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2. Any amendment or
modification to this Circular shall be decided by the Minister of Finance./.
PP. MINISTER
DEPUTY MINISTER
Tran Xuan Ha