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THE
STATE BANK OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
09/2006/TT-NHNN
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Hanoi,
October 23, 2006
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CIRCULAR
PROVIDING GUIDANCE TO THE SALE OF RECEIVABLES FROM A FINANCE
LEASING CONTRACT IN ACCORDANCE WITH PROVISIONS OF THE DECREE NO. 65/2005/ND-CP
DATED 19/5/2005 OF THE GOVERNMENT “PROVIDING FOR THE AMENDMENT, SUPPLEMENT OF
SEVERAL ARTICLES OF THE DECREE NO. 16/2001/ND-CP DATED 2 MAY 2001 OF THE
GOVERNMENT ON THE ORGANISATION AND OPERATION OF FINANCE LEASING COMPANIES”
Pursuant to the Paragraph 5
in Article 1 of the Decree No. 65/2005/ND-CP dated 19/5/2005 of the Government providing
for the amendment, supplement of several articles of the Decree
No.16/2001/ND-CP dated 02/5/2001 of the Government on the organization and
operation of Finance Leasing Companies, the State Bank of Vietnam would like to
provide guidance on several contents relating to the sale of receivables from
the Finance Leasing Contract which are provided for in the Decree hereof as
follows:
1.
Interpretation
In this Circular, following
terms shall be construed as follows:
1.1 “Receivables from a Finance
Leasing Contract” (hereinafter referred to as receivables) are the amount
payable by the lessee to the Finance leasing Company under the Finance Leasing
Contract.
1.2. “Transaction of selling
receivables from the Finance Leasing Contract” (hereinafter referred to as
receivables sale transaction) is a case where the finance leasing company sells
its receivables to the buyer of the receivables in the remaining period of the
Finance Leasing Contract for the diversification of lease products and increase
in operating capital source. In the receivables sale transaction, the Finance
Leasing Company keeps collecting the lease amount from the lessee and uses the
collected amount for the payment to the buyer of the receivables.
1.3. “Seller of the receivables”
(hereinafter referred to as the seller) is Finance Leasing Companies to be
granted with the establishment and operation license by the State Bank.
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1.5. “Selling price of the
receivables” is the amount agreed by the parties in the receivables sale
transaction, is determined by a percentage rate against the amount payable by
the lessee under the Finance Leasing Contract, but is not lower than the
finance leasing principal minus the amount collected by the lessor from the
lessee.
1.6. “Receivables sale contract”
is a written document signed by and between the seller and the buyer to perform
the receivables sale transaction.
1.7. “Recourse right in the
receivables sale transaction” (hereinafter referred to as recourse right) is
the right of the buyer to request the seller to perform the payment obligation
to the buyer at the maturity of the receivables sale contract.
2.
Principles of selling receivables
2.1. The sale of receivables
must be performed through the receivables sale Contract between the seller and
the buyer.
2.2. Ensuring legal rights,
obligations and interests of the parties to the receivables sale Contract and
parties relating to the receivables.
2.3. In the receivables sale
transaction, the seller still holds the ownership to the leased assets and
continues to collect the lease amount from the lessee to make payment to the
buyer.
2.4. Receivables sale
transaction is performed in the form of selling the receivables together with
the recourse right. The receivables sale contract is a legal basis ensuring the
recourse right of the buyer to the seller.
3.
Conditions for the receivables to be sold:
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a. be legally owned by the
seller;
b. not be used for ensuring the
performance of other obligations;
c. not be under any dispute;
d. be in normal operation.
3.2. The lessee concerning the
receivables sale contract: by the time where the receivables are offered for
sale, the lessee must make full payment for the lease amount in due course
provided for in the Finance Leasing Contract.
4.
Procedures of the sale of receivables
4.1. The seller shall select the
receivables from the Finance Leasing Contracts to offer for sale to the buyer,
and be obliged to supply full information about the receivables which are
offered for sale, including:
a. List of receivables: name,
address of the lessee; leased asset and its actual situation; location of the
leased asset; lease amount and remaining amount payable by the lessee in line
with the Finance Leasing Contract; offered price of the receivables; other
information upon the request of the buyer;
b. A copy of the Finance Leasing
Contract, Insurance Policy;
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4.2. The buyer shall appraise
the file and valuate the recoverability of the receivables that are offered for
sale; assess the business situation, financial capacity of the seller and the
lessee to make decision on the purchase of the receivables and give a notice to
the seller of the receivables.
4.3. The seller shall prepare a Receivables
Sale Contract, including main contents as provided for in point 8.1 Paragraph 8
herein. The seller and buyer shall agree about the contents of the Receivables
Sale Contract.
4.4. The seller and the buyer
shall sign the Receivables Sale Contract; at the same time, the seller informs
the lessee of the sale of the receivables.
4.5. The buyer shall make
payment to the seller in accordance with the provisions in the Receivables Sale
Contract.
4.6. The seller shall follow up
and collect the lease amount from the lessee in accordance with the Finance
Leasing Contract to make payment to the buyer in accordance with the
Receivables Sale Contract.
5. Currency
used in the receivables sale transaction
The seller and the buyer shall
perform the receivables sale transaction in Vietnamese dong. The receivables
sale transaction in foreign currency shall be only performed in the event where
the Finance Leasing Contract is in foreign currency and concerned parties must
comply with provisions of applicable laws on foreign exchange.
6. Fees for
the sale of receivables
Expenses relating to the sale of
receivables shall be agreed upon by the parties on the basis of provisions of
applicable laws and provided for in the Receivables Sale Contract, including:
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6.2. Other expenses (if any).
7. Security
measures in the receivables sale transaction
The seller and the buyer may
agree to apply or not apply security measures in the receivables sale
transaction in accordance with provisions of applicable laws.
8.
Receivables Sale Contract
8.1. The receivables sale
contract shall include main contents as follows:
- Name, address of the seller
and the buyer;
- Description of the receivables
and of the lessee;
- Present value of the
receivables to be sold;
- Selling price of the
receivables, mode of payment;
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- Mode of performing the
Receivables Sale Contract;
- Period of performing the
Receivables Sale Contract;
- Rights and obligations of the
seller and buyer;
- Cases of liquidating the
Receivables Sale Contract prior to its maturity;
- Responsibilities due to the
violation of the Receivables Sale Contract;
- Penalty imposed on the breach
of the Receivables Sale Contract;
- Settlement of disputes arising
in the performance of the Receivables Sale Contract;
- Effective term of the
Receivables Sale Contract.
8.2. The seller and the buyer
may agree other contents provided that they are not contrary to the provisions
of applicable laws.
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9.
Termination of the Receivables Sale Contract prior to the maturity
9.1. The buyer shall be entitled
to terminate the Receivables Sale Contract prior to its maturity where one of
following cases occur:
a. The seller violates terms of
the Receivables Sale Contract;
b. The seller is bankrupt,
dissolved and the buyer does not agree to transfer the Receivables Sale
Contract to a third party;
c. The Finance Leasing Contract
is terminated prior to its maturity and the buyer does not agree to replace
with another receivable from another Finance Leasing Contract.
9.2. The seller shall be
entitled to terminate the Receivables Sale Contract prior to its maturity where
one of following cases occur:
a. The buyer violates terms of
the Receivables Sale Contract;
b. The buyer requests the termination
of the Receivables Sale Contract due to objective reasons as the buyer is
bankrupt, dissolved, dead without an inheritor or loses civil act capacity
without an administrator;
c. The buyer changes contents of
the Receivables Sale Contract without an agreement of the seller.
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10. Dealing
with the Receivables Sale Contract which is terminated prior to the maturity
The buyer and the seller may
agree the treatment of the Receivables Sale Contract which is terminated prior
to the maturity. In case where the parties fail to come to an agreement, the
Receivables Sale Contract which is terminated prior to the maturity shall be
dealt with as follows:
10.1. Where the Receivables Sale
Contract is terminated prior to the maturity in accordance with the provision
in point 9.1, paragraph 9 of this Circular, the seller shall be required to refund
the entire amount, paid by the buyer after subtracting the amount paid by the
seller to the buyer in accordance with the Receivables Sale Contract, to the
buyer; The seller shall be responsible for the compensation of loss to the
buyer as provided for in the Receivables Sale Contract. In case where the
seller fails to pay for the purchase of the remaining receivables within the
period requested by the buyer, the buyer thereat shall be entitled to proceed
against the seller in accordance with provisions of applicable laws.
10.2. Where the Receivables Sale
Contract is terminated prior to the maturity in accordance with the provision
in point 9.2, paragraph 9 of this Circular, the seller shall be required to
refund the entire amount, paid by the buyer after subtracting the amount paid
by the seller to the buyer in accordance with the Receivables Sale Contract, to
the buyer; The seller shall be responsible for the compensation of any loss to
the buyer as provided for in the Receivables Sale Contract.
10.3. Where the Receivables Sale
Contract is terminated prior to the maturity in accordance with the provision
in point 9.3, paragraph 9 of this Circular, the seller shall be required to pay
the remaining amount to the buyer in accordance with the Receivables Sale
Contract, the compensation of loss shall be agreed upon by the parties.
10.4. Where the Receivables Sale
Contract is terminated prior to the maturity because the buyer or the seller is
bankrupt in accordance with provision in point 9.1.b and Point 9.2.b, Paragraph
9 of this Circular, rights and obligations of the buyer, seller shall be dealt
with in accordance with provisions of applicable laws on bankruptcy.
11. Rights
and obligations of the seller
11.1. Rights of the seller:
a. To fully perform the rights
of the lessor in the Finance Leasing Contract to the lessee;
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c. To request the buyer to
comply with the agreements in the Receivables Sale Contract and provisions of
applicable laws. In the event where the buyer intentionally breaches the
Receivables Sale Contract, the seller shall be entitled to proceed against the
buyer in accordance with provisions of applicable laws.
d. To decline performing
requests of the buyer if these requests are contrary to the agreements in the
Receivables Sale Contract and provisions of applicable laws.
dd. To fully perform other
rights to the buyer upon the agreements in the Receivables Sale Contract.
11.2. Obligations of the seller:
a. To fully, timely and honestly
supply the buyer with documents relating to the sale of the receivables upon
the agreement made by and between the two parties and in accordance with
provisions of applicable laws;
b. To inform the lessee and the
guaranteeing party of the lessee (if any) of the sale of the receivables;
c. To comply with obligations of
the lessor in the Finance Leasing Contract to the lessee;
d. To follow up and collect the
lease amount from the lessee in accordance with the Finance Leasing Contract to
make payment to the buyer in accordance with the Receivables Sale Contract;
dd. To fully comply with the
obligations to the buyer upon the agreements in the Receivables Sale Contract.
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12.1. Rights of the buyer
a. To request the seller to
fully, timely and honestly supply the buyer with documents relating to the sale
of the receivables upon the agreement made by and between the two parties and
in accordance with provisions of applicable laws;
b. To request the seller to
totally transfer the notarized file of the leased assets, the Finance Leasing
Contract and other documents relating to the receivables (if it is agreed upon
by the two parties in the Receivables Sale Contract);
c. To be entitled to sell the
receivables to another buyer provided that the new buyer commits to comply with
provisions of the Receivables Sale Contract;
d. To receive money paid by the
seller in accordance with the agreements in the Receivables Sale Contract until
the money is fully paid and the Receivables Sale Contract is terminated;
dd. To proceed against the
seller in accordance with the provisions of applicable laws where the seller
violates the committed obligations;
e. To perform the recourse right
where the seller breaches the Receivables Sale Contract.
12.2. Obligations of the buyer
a. To make payment to the seller
in accordance with the agreement in the Receivables Sale Contract;
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c. To inform the seller where
the receivables have been transferred to another buyer;
d. To record file and documents
relating to the receivables in compliance with provisions of applicable laws;
at the same time, hand over the entire file to the seller at the liquidation of
the Receivables Sale Contract;
dd. Other obligations in
accordance with provisions of applicable laws and of the Receivables Sale
Contract.
13. Dealing
with violation
Any organization, which, individual,
who violates this Circular shall, upon the nature, seriousness of the
violation, be dealt with in accordance with provisions of applicable laws.
14.
Implementing organization
14.1. Responsibilities of the
Finance Leasing Company: Board of Directors of the Finance Leasing Company
shall issue internal regulation on the receivables sale transaction based on
the provisions of this Circular and in conformation with current provisions of
laws prior to the implementation.
14.2. Responsibilities of units
of the State Bank
a. The State Bank Inspectorate
shall inspect, supervise finance leasing companies in the implementation of
provisions relating to the receivables sale transaction; deal with upon the
competence and make petition to the Governor of the State Bank for the
treatment of violations of provisions in this Circular.
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15.
Implementing provisions
15.1. This Circular shall be
effective after 15 days since its publication in the Official Gazette.
15.2. Director of Administrative
Department, Director of Banks and Non-bank Credit Institutions Department, Head
of units of the State Bank of Vietnam, Manager of the State Bank branches in
provinces, cities under the Central Government’s management, Chairperson of the
Board of Directors and General Director (Director) of Finance Leasing Companies
shall be responsible for the implementation of this Circular.
FOR
THE GOVERNOR OF THE STATE BANK OF VIETNAM
DEPUTY GOVERNOR
Dang Thanh Binh