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银团贷款暂行办法 People's Bank of China, Syndicated Loans Tentative Procedures

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银发[1997]415号
(Promulgated by the People's Bank of China on, and became effective as of, 7 October 1997.)
颁布日期:19971007  实施日期:19971007  颁布单位:中国人民银行

  PART ONE GENERAL PRINCIPLES

  Article 1 These Procedures have been formulated in accordance with the provisions of Article 56 of the Lending General Provisions in order to standardize syndicated loans business, to make full use of the overall function of finance, better to serve enterprises, especially large and medium-sized State-owned enterprises and key projects, to promote the expansion and normal economic development of enterprise groups, and to diversify and guard against loan risk.

  Article 2 Syndicated loans are loans to provide capitals by several banks or non-banking financial institutions, which are authorized to conduct loan business, under a single loan agreement for an agreed term and on agreed conditions to a single borrower.

  Those taking part in syndicated loans within China shall be Chinese banks and non-banking financial institutions within China.

  Article 3 The issue of syndicated loans must be in accord with the relevant national financial laws and regulations and with national policy on industry and on credit. When syndicated loans involve transregional, transindustry or investment plans, etc., the relevant parties should give active support and resolve the issues involved.

  Article 4 Syndicated loans shall be used for short, medium or long-term loans, Renminbi loans or foreign currency loans which are in accord with the conditions placed on loans and of relatively large amount.

  Article 5 The lenders and borrowers of syndicated loans must place importance on the contract and keep their word. The financial institutions taking part in syndicated loans should abide by the principle of voluntary consultation and mutual benefit, and enjoy rights and underwrite risk in accordance with the proportion of capital they contribute or with the stipulations of the agreement.

  Article 6 Syndicated loans must be put on file with the local People's Bank. The People's Bank must actively create conditions favourable to planning and organizing syndicated loans .

  PART TWO PLANNING AND ORGANIZATION OF SYNDICATED LOANS

  Article 7 The principal targets of syndicated loans are large and medium-sized State-owned enterprises, enterprise groups and key construction projects within the national plan.

  Article 8 The borrowers and lenders of syndicated loans must fit all the basic conditions and requirements regarding borrowers and lenders in the Lending General Provisions.

  Article 9 The plan for syndicated loans shall be proposed by the borrower or the relevant financial institution. Once it has been negotiated and agreed between the two sides the borrower shall submit a formal letter of appointment to the financial institution concerned. The financial institution shall on the basis of the letter of appointment issue an inter-industry invitation to join the group.

  Article 10 The organizer or arranger of the syndicated loan shall be called the lead bank. The lead bank shall in principle be the borrower's main lending bank or basic account-holding bank. In general the lead bank shall supply the largest part of the syndicated loan.

  Article 11 The agent bank shall be the administrator of the loan once the loan agreement is signed. The agent bank shall in general be the lead bank, and can also be designated through joint discussion by the syndicated member banks.

  Article 12 The financial institutions taking part in the syndicated loan shall be the syndicated loan member banks. The lead bank, agent bank and member banks in syndicated loans shall be subject equally to civil rights and obligations.

  Article 13 Syndicated loan projects shall be examined and appraised by the lead bank, and each member bank can also carry out its own examination and appraisal. The method of examination and appraisal adopted shall be set through discussion by the syndicated member banks. When examining and appraising the loan project, the member banks shall have the right to ask the borrower to provide the information necessary to assess and investigate the project. The borrower shall be obliged to provide to the member banks the accurate information needed for the loan and to accept inquiries. The lead and agent banks shall be obliged to report accurately to the member banks relevant information pertaining to the borrower.

  PART THREE ISSUE AND RECOVERY OF SYNDICATED LOANS

  Article 14 Syndicated loans shall adopt the method of "a firm total, the burden being divided among all the members".

  Article 15 The amount of the syndicated loan borne by each member bank shall be in accordance with the principle of "voluntary entry and settled by agreement".

  Article 16 Syndicated loan member banks should sign a joint syndicated loan agreement with the borrower and the guarantor.

  Article 17 The syndicated loan agreement shall be a single loan contract negotiated and signed between the borrower and the lenders in accordance with the relevant laws and regulations. The representative of each party to the syndicated loan shall each sign the syndicated loan agreement and affix the seal of each work unit.

  Article 18 The syndicated loan agreement should contain the following main clauses:

  1. the basic circumstances of each party to the loan agreement, meaning principally the name and address of the borrower, lead bank, agent bank, other member banks and guarantor;

  2. definitions and interpretation, defining and interpreting the meaning of specific wording used in the agreement;

  3. agreements related to the loan contract, including type of loan, use to which the loan will be put, amount of loan, interest rate, loan period, repayment method and source of funds for repayment, guarantee clauses, etc.

  4. the size of loan undertaken by each member bank and timing of transfer of funds;

  5. rights and obligations of the agent bank;

  6. agreements relating to the convening of the syndicated group meetings and to syndicated group meeting decisions;

  7. responsibilities when there is breach of contract; and

  8. other clauses required by law or regulations or believed necessary by the parties involved.

  Article 19 Syndicated loans shall be handled each in accordance with the relevant loan administration procedures.

  Article 20 Interest on syndicated loans shall be calculated and collected in accordance with the interest rates and procedures stipulated by the People's Bank.

  Article 21 Syndicated loan member banks shall not levy any charges other than interest on the borrower. The cost of issuing a syndicated loans shall be borne by the agent bank or resolved through negotiation among the member banks.

  Article 22 The issue of loans and collection of capital and interest shall be handled by the agent bank. When loans are issued each member bank should in accordance with the loan agreement transfer sums to a special account held by the borrower in the agent bank. Capital and interest shall be repaid by the borrower on time in accordance with the agreement to the agent bank, which shall then immediately transfer this proportionately to the member banks.

  Article 23 When loans fall due the borrower should on time and to the requisite amount repay capital and interest on the loan. If the borrower is unable to repay on time the total amount of the syndicated loan, the agent bank shall on the basis of the provisions of the agreement transfer to each member bank that amount of the partial sum repaid proportionate to their share of the loan. Penalty interest on the overdue portion shall be subject to unified calculation by, and shall be collected from the borrower by, the agent bank in accordance with the relevant People's Bank provisions.

  Article 24 Syndicated loans must be guaranteed. If the borrower is unable to repay the capital on time the syndicated group shall have the right in accordance with the law and regulations to first recompense from the discounted value of the mortgaged or pledged item or from the amount recouped through sale or auction of the mortgaged or pledged item, or from the liabilities or responsibilities assumed by the guarantor in accordance with the provisions of the loan agreement.

  PART FOUR DUTIES OF THE LEAD AND AGENT BANKS

  Article 25 The principal duties of the lead bank shall be as follows:

  1. to receive the loan application document and to set the total amount and type of the syndicated loan;

  2. to send to the relevant financial institutions the invitation to join the group, the loan application document (copy) and related material, to set the time limit for response and to collect the responses;

  3. to be responsible for work such as the negotiation, drafting and signing of the loan agreement; and

  4. to convene syndicated group meetings to negotiate and decide on the agent bank and on other questions and matters that must be jointly decided.

  Article 26 The rights and obligations of the agent bank shall be stipulated in the loan agreement and principally include the following:

  1. strictly to implement the loan agreement and in line with the agreement to guarantee the interests of the syndicated loan member banks. The agent bank must not use its position to harm the legal interests of the other member banks;

  2. to issue and collect all the loan capital and interest stated in the loan agreement strictly in accordance with the provisions of the agreement;

  3. to itemize and register the total syndicated loan and the contributions of each member bank which have been examined and agreed for issue, and to do the same when these are repaid;

  4. to undertake the syndicated loan guarantee procedure;

  5. to establish an enterprise syndicated loan account and immediately return to the member banks their proportion of the interest and capital paid by the borrower;

  6. to review the way the syndicated loan is being implemented and to report regularly to the member banks on the utilization and administration of the syndicated loan; and

  7. to perform other tasks related to the syndicated loan which it is appointed to do by the member banks.

  Article 27 The lead bank and agent bank must designate personnel to be specifically responsible for detailed matters concerning the syndicated loan.

  PART FIVE ADMINISTRATION OF SYNDICATED LOANS

  Article 28 The syndicated loan agent bank shall be responsible for organizational and implementational work once the syndicated loan agreement has been signed. The agent bank must carefully inspect and supervise the way in which the syndicated loan is being used and must implement measures to check and verify matters related to economic efficiency and repayment capability. It shall report regularly to the member banks on utilization of the loan, report on time on matters relating to repayment of capital and interest, and accept the advice and scrutiny of the member banks.

  Article 29 The lead bank must assist the agent bank to follow the progress of the project, uncover in a timely fashion possible problems with the syndicated loan project, inform the member banks in writing of these and call a syndicated group meeting to find ways to resolve the problems.

  Article 30 Syndicated loan member banks must pay their full share of the loan on time in accordance with the provisions of the syndicated loan agreement and must carry out their duties and obligations in accordance with the syndicated loan agreement.

  Article 31 The borrower must in accordance with the provisions of the syndicated loan agreement guarantee the use to which the loan is put, transfer loan capital and interest to the agent bank in a timely fashion, and provide the relevant accurate information to the syndicated loan member banks.

  Article 32 Once the syndicated loan agreement has been signed the agent bank must send a copy of the syndicated loan agreement to be put on file at the local branch of the People's Bank.

  PART SIX HANDLING BREACHES OF CONTRACT

  Article 33 Any one of the following acts by the borrower constitutes breach of contract:

  1. (i) a relevant document provided is found to be invalid;

  2. (ii) inability to carry out an obligation stipulated in the agreement or to abide by an undertaking made;

  3. (iii) inability to pay capital and interest as stipulated in the agreement;

  4. (iv) evasion of bank debts through false bankruptcy, etc. or evasion of bank supervision; or

  5. (v) violation of the Lending General Provisions or other breaches of contract as stipulated in the syndicated loan agreement.

  Article 34 If breaches of contract by the borrower are not corrected the agent bank shall be responsible for calling a syndicated group meeting to impose a penalty. The borrower and his guarantor shall be notified in writing of the penalty decided on by the syndicated group meeting. Such penalties can be the legal adoption of measures such as stopping the loan, early repayment of the loan, etc. When necessary a suit shall be brought in the people's court.

  Article 35 Any one of the following acts by a lender constitutes breach of contract:

  1. (i) failure by syndicated loan member banks to transfer loan funds in accordance with the provisions of the loan agreement when in receipt of notification from the agent bank in accordance with the timing stipulated in the agreement;

  2. (ii) unauthorized early collection of loans by syndicated member banks;

  3. (iii) failure by the agent bank to transfer funds to the member banks as agreed when the borrower has repaid the syndicated loan; or

  4. (iv) other violations by the lender of the Lending General Provisions or of the syndicated loan agreement.

  Article 36 If acts by lenders as stipulated in Article 35 of these Procedures are not corrected within a set period, the borrower or member bank can apply for arbitration or bring a suit in the people's court.

  PART SEVEN SUPPLEMENTARY

  Article 37 Points not covered in these Procedures shall be concluded by all parties to the syndicated loan in the syndicated loan agreement.

  Article 38 These Procedures do not apply to international syndicated loans participated in by financial institutions outside China. The Procedures shall be followed in the case of syndicated loans within China participated in by foreign banks within China which are permitted to conduct Renminbi business.

  Article 39 These Procedures shall be interpreted and amended by the headquarters of the People's Bank of China.

  Article 40 These Procedures shall be effective as of the date of promulgation.

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