Thông tư 07/2004/TT-NHNN của Ngân hàng Nhà nước về việc sửa đổi điểm 17.2 Thông tư 08/2001/TT-NHNN ngày 6/9/2001 của Thống đốc Ngân hàng Nhà nước hướng dẫn thực hiện Nghị định 16/2001/NĐ-CP ngày 2/5/2001 về tổ chức và hoạt động của Công ty cho thuê tài chính

CIRCULAR

ON THE AMENDMENT OF POINT 17.2 OF THE CIRCULAR No. 08/2001/TT-NHNN  OF SEPTEMBER 06th, 2001 OF THE GOVERNOR OF THE STATE BANK GUIDING THE IMPLEMENTATION OF THE DECREE No. 16/2001/ND-CP OF MAY 02nd, 2001 ON THE ORGANISATION AND OPERATION OF FINANCE LEASING COMPANIES

On 6 September 2001, the Governor of the State Bank issued the Circular No. 08/2001/TT-NHNN guiding the implementation of the Decree No. 16/2001/ND-CP dated 2 May 2001 of the Government on the organisation and operation of Finance Leasing Companies. Now the State Bank of Vietnam makes amendment of the point 17.2 of the Circular No. 08/2001/TT-NHNN dated 6 September 2001 of the State Banks Governor as follows:

1. Procedures, files for the State Banks approval of changes:

1.1. File for the change of the finance leasing companys name

a. A written application of the Chairperson of the Board of Directors of the Finance Leasing Company for the change of the companys name. The application should provide clear reasons and the necessity thereof;

b. A Minutes and a Resolution of the Board of Directors of the Finance Leasing Company on the change of the companys name;

c. Written acceptances from the Credit Institution to which the Finance Leasing Company is a subsidiary; capital contributing parties to the joint venture Finance Leasing Company; foreign parties to the Finance Leasing Company with 100% foreign owned capital,

d. A Minutes, a Resolution of shareholders Meeting in respect of joint stock financial leasing companies.

1.2. File for the change of charter capital level

a. A written application of the Chairperson of the Board of Director of the Finance Leasing Company for the change of the charter capital level, which clearly state the necessity, reasons thereof and solutions for shortcomings (if any) prior to the change;

b. A Minutes and a Resolution of the finance leasing companys Board of Directors on the change of the companys charter capital;

c. Written acceptances from the Credit institution to which the Finance Leasing Company is a subsidiary; capital contributing parties to the joint venture finance leasing company; foreign parties to the Finance Leasing Company with 100% foreign owned capital for the change of the charter capital;

d. A report on the most recent organization and operation of the finance leasing company;

e. A joint stock Finance Leasing Company shall, in addition to above mentioned files, submit following documents to the State Bank:

+ A Minutes of the shareholders Meeting on the change of the charter capital;

+ A plan on the change of the charter capital ratified by the shareholders Meeting;

+ A list of and the share ratio of major shareholders prior to and after the change of the finance leasing companys charter capital;

+ An application for the share purchase of major shareholders.

1.3. File for the change of location of the Head office, branch, representative office

a. A written application of the Chairperson of the Board of Directors of the Finance Leasing Company for the State Banks approval of the change of location of its Head Office, branch, representative office, which clearly state reasons for the location movement, location to move to, the security status of new location;

b. A Resolution of the Board of Directors of joint stock financial leasing companies, joint venture financial leasing companies, financial leasing companies, which are a subsidiary of a credit institution with a separate Board of Directors and a control committee on the change of Head offices, branchs, representative offices location;

c. A written approval of the Peoples Committee in province, city of the location of the Head Office, branch, representative office of the finance leasing company;

In case where the Peoples Committee of provinces, cities does not make any approval or only issues its approval after the State Bank has made its acceptance in writing of the change of the Head offices, branchs, representative offices location, the Finance Leasing Company shall clearly state that in the written application of the Chairperson of the Board of Directors for the State Banks consideration;

d. A written confirmation of the ownership or the legal use right of the new location of the Head office, branch, representative office;

e. Written opinion of the General Manager of the State Banks branch in province, city where the financial leasing plans to locate its Head office, branch, representative office.

1.4. File for the change of operation contents, scope and duration

a. A written application of the Chairperson of the Board of Director of the Finance Leasing Company for the change of the operation contents, scope and duration, which clearly state the necessity, reasons thereof and solutions for shortcomings (if any) prior to the change;

b. A Minutes and a Resolution of the finance leasing companys Board of Directors on the change of the operation contents, scope and duration;

c. A written acceptance from the Credit institution to which the Finance Leasing Company is a subsidiary with a separate Board of Directors and Control Committee; capital contributing parties to the joint venture finance leasing company; foreign parties to the Finance Leasing Company with 100% foreign owned capital,

d. A report on the most recent organization and operation of the finance leasing company;

e. A Minutes, Resolution of the Shareholders Meeting for the joint stock finance leasing company.

1.5. File for the transfer of the contributed capital part that exceeds stipulated ratio of the parties to a joint venture finance leasing company

a. A written application of the Chairperson of the Board of Director of the Finance Leasing Company for the State Banks approval of the transfer of the contributed capital by the transferor in the joint venture to the transferee, which clearly states the reason thereof and solutions for shortcomings (if any) prior to the transfer;

b. A Meeting minutes of the Board of Directors of the joint venture Finance Leasing Company on their agreement with the capital transfer;

c. A written notification to the State Bank by the transferor of the partial or entire transfer of his contributed capital in the joint venture finance leasing company;

d. A written document of the transferee requesting the State Bank to permit him to repurchase partially or wholly the transferors capital contribution in the joint venture finance leasing company;

e. In case where the transferee party is not one of parties to the joint venture, it must submit supplementary documents as stipulated in point 9 Section II of the Circular No. 08/2001/TT-NHNN dated 6 September 2001 guiding the implementation of the Decree No. 16/2001/ND-CP dated 2 May 2001 of the Government on the organization and operation of the finance leasing company.

1.6. File for the transfer of non-bearer share that exceeds the ratio stipulated by the State Bank, change of the share ratio of major shareholders in the joint stock finance leasing company

a. A written application of the Chairperson of the Board of Directors

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

c. An application for the share purchase of shareholders, which undertakes the legality of the source of funds, which is used to purchase share, accepts the financial status, the charter of the joint stock Finance Leasing Company and undertakes to comply with provisions of applicable laws relating to the share purchase (for shareholders being a legal entity, their application must be signed and sealed by a representative of the legal entity);

d. File of shareholders who make the share transfer of less than 20% of the charter capital;

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

1.7. Change of members of the Board of Directors, members of the Control Committee and General Director (Director): to be performed in accordance with Provisions on the organization and operation of the Board of Directors, Control Committee, General Director (Director) of non-bank credit institutions issued in conjunction with the Decision No. 516/2003/QD-NHNN dated 26 May 2003 of the State Banks Governor.

1.8. Sequences and procedures for the acceptance of changes of a finance leasing company

a. For joint stock financial leasing companies

The file is made in 3 sets and submitted to the State Banks branch in province, city where a Finance Leasing Company locates its Head office. Within a maximum period of 15 (fifteen) working days from the receipt of complete file, the State Banks branch in province, city gives it written opinion on the request for change of the Finance Leasing Company and submits it to the State Bank, enclosed with 2 sets of file of the finance leasing company.

For the case in point 1.6, the State Banks branch examines the share transfer prior to the change in order to secure the legality of the shareholders voting shares and give its written acceptance of the share transfer of the joint stock Finance Leasing Company or give its non-acceptance (if it assumes that the file is not in compliance with provisions, the change of share structure is likely to endanger the stability in the operation of the joint stock finance leasing company). The written non-acceptance must clearly give the reason thereof.

b. For other financial leasing companies

The file is made in 2 sets and submitted to the State Bank of Vietnam (Banks Department). In the case of the Finance Leasing Company which is a subsidiary of a credit institution and does not have a separate Board of Directors, Control Committee, documents to be made by the Chairperson of the Board of Directors of the Finance Leasing Company as stipulated in points 1.1.a, 1.2.a, 1.3.a and point 1.4.a is replaced by those of the Chairperson of the Board of Directors of the credit institution to which the Finance Leasing Company is a subsidiary.

c. Within a period of 15 (fifteen) working days from the receipt of complete file in accordance with applicable provisions, the Governor of the State Bank will consider, accept the changes of the finance leasing company. In case of non-acceptance, the State Bank provides its written response, which clearly states the reason thereof.

d. The Finance Leasing Company must send a written registration (notarised copy) of changes issued by the State competent agency and other related documents to the State Bank of Vietnam (Banks Department). For a joint stock finance leasing company, it is required to send a further set of above-mentioned documents to the State Banks branch in province, city where it locates its head office.

1.9. Responsibilities of units of the State Bank

a. The Department of Banks and Non-Bank Credit Institutions, the State Banks branches in provinces, cities shall be responsible

- To receive the application file for the acceptance of changes of the Finance Leasing Company in compliance with sequences and procedures as provided for in point 1 of this Circular;

- To coordinate with related Departments of the State Bank to consider and submit to the State Bank for his acceptance of changes of the finance leasing company.

b. The State Banks Inspectorate shall be responsible

- To coordinate with and provide the Banks Department with the operation performance, make recommendation of issues relating to the changes of the finance leasing company;

- To organize the inspection, supervision of the implementation of changes of the finance leasing company; undertake under its competence and recommend to the Governor of the State Bank of the settlement of violations of provisions in this Circular.

2. This Circular is effective after 15 days from its publication in the Official Gazette.

3. The Director of the Administrative Department, Directors of Banks and non-bank Credit Institutions Department, Heads of units of the State Bank, General Managers of the State Banks branches in provinces, cities under the central Governments management, Chairperson of the Board of Directors and General Directors (Directors) of Credit Institutions which have subsidiary financial leasing companies, Chairperson of the Board of Directors, Control Committee and General Directors (Directors) of financial leasing companies shall be responsible for the implementation of this Circular.