Thông tư 09/2006/TT-NHNN của Ngân hàng Nhà nước về việc hướng dẫn hoạt động bán khoản phải thu từ Hợp đồng cho thuê tài chính theo quy định tại Nghị định số 65/2005/NĐ-CP ngày 19/5/2005 của Chính phủ Quy định về việc sửa đổi, bổ sung một số điều của Nghị định số 16/2001/NĐ-CP ngày 02/5/2001 của Chính phủ về tổ chức và hoạt động của công ty cho thuê tài chính

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.

1.4. “Buyer of the receivables” (hereinafter referred to as the buyer) is investors, including organizations operating in Vietnam, individuals residing in Vietnam.

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:

3.1. Leased assets relating to the receivable sale Contract shall:

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;

c. A copy of the certificate of secured transaction registration.

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:

6.1. Fee for the negotiation

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;

- Security measures for obligation performance in accordance with the Receivables Sale Contract (if any);

- 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.

8.3. The Receivables Sale Contract may be amended, supplemented or cancelled if the parties agree otherwise not contrary to the provisions of applicable laws and of this Circular.

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.

9.3. The Receivables Sale Contract may be terminated prior to the maturity in the event where the buyer and the seller agree the termination of the Contract prior to its maturity.

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;

b. To receive the money paid by the buyer in accordance with the agreements in the Receivables Sale Contract;

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.

12. Rights and obligations of the buyer

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;

b. To fully comply with the obligations to the seller in accordance with the agreement in the Receivables Sale Contract;

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.

b. Finance – Accounting Department shall provide guidance to the accounting of the receivables sale operation of finance leasing companies.

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.