Guidelines for the Syndicated Loan Business
银团贷款业务指引
The Guidelines targets four major improvements on the financial structure of the banking industry: financial services, loan models, risk management, and inter-bank cooperation.
(Issued by the China Banking Regulatory Commission on, and effective as of, August 11 2007.)
Yin Jian Fa [2007] No.68
PART ONE: GENERAL PROVISIONS
Article 1: These Guidelines have been formulated pursuant to laws and regulations such as the PRC Banking Regulation Law, the PRC Commercial Banking Law, the PRC Contract Law and the PRC Security Law in order to promote and regulate the syndicated loan business, spread credit risks, promote cooperation in the banking sector and better provide financing services to key enterprises and projects.
(中国银行业监督管理委员会于二零零七年八月十一日公布,自公布之日起实施。)
银监发 [2007] 68号
第一章 总则
第一条 为促进和规范银团贷款业务,分散授信风险,推动银行同业合作,更好地为重点企业和项目提供融资服务,根据《中华人民共和国银行业监督管理法》、《中华人民共和国商业银行法》、《中华人民共和国合同法》、《中华人民共和国担保法》等法律法规,特制定本指引。
Article 2: These Guidelines shall apply to banks and non-bank financial institutions that are established within the territory of China with the approval of the China Banking Regulatory Commission (Banks) and that engage in loan business.
第二条 本指引适用于在中国境内经银监会批准设立并经营贷款业务的银行和非银行金融机构(以下简称银行)。
Article 3: The term "syndicated loan" means the business whereby two or more Banks extend a renminbi or foreign currency denominated loan or credit to a borrower via the agent Bank at the specified time and in the specified percentages based on the same loan terms and conditions and pursuant to the same loan agreement.
第三条 银团贷款是指由两家或两家以上银行基于相同贷款条件,依据同一贷款协议,按约定时间和比例,通过代理行向借款人提供的本外币贷款或授信业务。
Article 4: When Banks engage in the syndicated loan business, they shall comply with relevant state laws and regulations and state credit policy, and adhere to the principles of equality, mutual benefit, consultations conducted on a fair basis, performance in good faith and bearing of risks oneself.
第四条 银行开办银团贷款业务,应当遵守国家有关法律、法规,符合国家信贷政策,坚持平等互利、公平协商、诚实履约、风险自担的原则。
Article 5: Banking associations, as the self-regulatory organizations of the industry, shall be responsible for the self- regulatory work in the syndicated loan market, play a coordinating role in respect of problems arising in syndicated loans and transactions, collect and disclose relevant information on syndicated loans, formulate relevant industry agreements, etc.
第五条 银行业协会作为行业自律组织,负责银团贷款市场秩序的自律工作,协调银团贷款与交易中发生的问题,收集和披露有关银团贷款信息,制订行业相关公约等。
PART TWO: SYNDICATE MEMBERS
第二章 银团贷款成员
Article 6: All Banks that participate in a syndicated loan are members of the syndicate. Each member of a syndicate shall determine its credit extension acts at its own discretion based on the principles of "sharing information, independent examination and approval, autonomous decision making and bearing of risks oneself, and enjoy the attendant rights and bear the attendant obligations under the syndicated loan based on the actual share it committed to.
第六条 参与银团贷款的银行均为银团贷款成员。银团贷款成员应按照“信息共享、独立审批、自主决策、风险自担”的原则自主确定各自授信行为,并按实际承诺份额享有银团贷款项下相应的权利、义务。
Article 7: Based on their functions and division of responsibilities in a syndicated loan, members of a syndicate typically assume roles such as lead Bank, agent Bank and participating Bank, or may, based on the actual scale and needs, have a secondary lead Bank, etc., in the syndicate, and perform the attendant duties based on the relevant syndicated loan agreement.
第七条 按照在银团贷款中的职能和分工,银团贷款成员通常分为牵头行、代理行和参加行等角色,也可根据实际规模与需要在银团内部增设副牵头行等,并按照银团贷款相关协议履行相应职责。
Article 8: The term "lead Bank of a syndicated loan" means the Bank approved by the borrower that promotes and organizes the syndicate and is responsible for apportioning the shares of the syndicated loan, and is the organizer and arranger of the syndicated loan.
第八条 银团贷款牵头行是指经借款人同意、发起组织银团、负责分销银团贷款份额的银行,是银团贷款的组织者和安排者。
Article 9: The principal duties of the lead Bank are set forth below:
第九条 牵头行的主要职责是:
(1) promoting and organizing the syndicated loan and apportioning the shares of the syndicated loan;
(一) 发起和筹组银团贷款,并分销银团贷款份额;
(2) conducting a pre-loan due diligence investigation of the borrower, drafting the syndicated loan information memorandum and recommending the syndicated loan to potential participating banks;
(二) 对借款人进行贷前尽职调查,草拟银团贷款信息备忘录,并向潜在的参加行推荐;
(3) representing the syndicate in negotiating and determining the syndicated loan terms and conditions with the borrower;
(三) 代表银团与借款人谈判确定银团贷款条件;
(4) representing the syndicate in engaging the relevant intermediary organizations to draft the legal documents for the syndicated loan;
(四) 代表银团聘请相关中介机构起草银团贷款法律文本;
(5) arranging for the members of the syndicate to execute a written syndicated loan agreement with the borrower;
(五) 组织银团贷款成员与借款人签订书面银团贷款协议;
(6) assisting the agent Bank in managing the syndicated loan; and
(六) 协助代理行进行银团贷款管理;
(7) other duties determined in the syndicate agreement.
(七) 银团协议确定的其它职责。
Article 10: When a single Bank serves as the lead Bank, the share that it underwrites shall not, in principle, be less than 20% of the entire amount of the syndicated financing; and the shares that it apportions to other members of the syndicate shall not, in principle, be less than 50%.
第十条 单家银行担任牵头行时,其承贷份额原则上不少于银团融资总金额的20%;分销给其它银团贷款成员的份额原则上不低于50%。
Article 11: Based on the responsibility borne by the lead Bank in respect of the final amount arranged for the loan, the apportioning of the syndicated loan by the syndicate lead Bank may be done by way of a firm commitment underwriting arrangement, stand-by underwriting arrangement or best efforts underwriting arrangement.
第十一条 按照牵头行对贷款最终安排额所承担的责任,银团牵头行分销银团贷款可以分为全额包销、部分包销和尽最大努力推销三种类型。
Article 12: The term "syndicate agent Bank" means the Bank that, after the execution of the syndicated loan agreement, collects the proceeds and extends the loan to the borrower in the amount and according to the schedule determined pursuant to the relevant loan terms and conditions and that, as appointed by the syndicate, manages the syndicated proceeds in accordance with the duties specified in the syndicated loan agreement.
第十二条 银团代理行是指银团贷款协议签订后,按相关贷款条件确定的金额和进度归集资金向借款人提供贷款,并接受银团委托按银团贷款协议规定的职责对银团资金进行管理的银行。
The lead Bank may serve as agent Bank, or the agent Bank may be determined through consultations among the members of the syndicate.
代理行可以由牵头行担任,也可由银团贷款成员协商确定。
Article 13: The principal duties of the agent Bank are set forth below:
第十三条 代理行的主要职责:
(1) examining and causing the borrower to implement the loan terms and conditions, extending the loan or carrying out other credit matters;
(一) 审查、督促借款人落实贷款条件,并提供贷款或办理其它授信业务;
(2) carrying out the security/mortgage procedures for the syndicated loan and assuming responsibility for the day-to-day management of the mortgaged (pledged) thing;
(二) 办理银团贷款的担保抵押手续,并负责抵(质)押物的日常管理工作;
(3) drawing up the account management plan, opening a dedicated account to manage the syndicated loan proceeds and recording the changes in the proceeds in the dedicated account item by item;
(三) 制作账户管理方案,开立专门账户管理银团贷款资金,对专户资金的变动情况进行逐笔登记;
(4) notifying the members of the syndicate to transfer proceeds into the designated account in proportion to the shares undertaken by them as specified in the syndicated loan agreement by the specified drawdown date or pursuant to a drawdown application by the borrower;
(四) 根据约定用款日期或借款人的用款申请,按照银团贷款协议约定的承贷份额比例,通知银团贷款成员将款项划到指定账户;
(5) receiving the transferred principal of and interest on the syndicated loan, charging the relevant charges on the behalf of the other members and transferring the same in a timely manner into the accounts designated by the members of the syndicate in proportion to the shares undertaken by them and in accordance with the provisions of the syndicated loan agreement;
(五) 划收银团贷款本息和代收相关费用,并按承贷比例和银团贷款协议约定及时划转到银团贷款成员指定的账户;
(6) being responsible for post-lending management of the syndicated loan, monitoring and inspecting the use of the loan and regularly reporting the same to the members of the syndicate;
(六) 负责银团贷款贷后管理和贷款使用情况的监督检查,并定期向银团贷款成员通报;
(7) closely watching the borrower's financial position, and, particularly when a material event that could affect the borrower's repayment capacity, such as a corporate merger or acquisition, distribution of dividends, investment in third parties, asset transfer or debt reorganization, occurs during the term of the loan, notifying the members of the syndicate thereof in the form of a special report in accordance with the syndicated loan agreement within three business days from the date of receiving notice from the borrower;
(七) 密切关注借款人财务状况,特别是贷款期间发生企业并购、股权分红、对外投资、资产转让、债务重组等影响借款人还款能力的重大事项时,代理行应在获借款人通知之日起三个营业日内按银团贷款协议约定以专项报告形式通知各银团贷款成员;
(8) in the event of a default by the borrower, arranging for the members of the syndicate to carry out recovery, take preservation measures or seek recourse in respect of, or otherwise deal with, the loan default in a timely manner;
(八) 借款人出现违约事项时,代理行应及时组织银团贷款成员对违约贷款进行清收、保全、追偿或其它处置;
(9) organizing and holding syndicate meetings and harmonizing the relationships among the members of the syndicate; and
(九) 组织召开银团会议,协调银团贷款成员之间的关系;
(10) accepting inquiries from, and the checking by, the members of the syndicate on an irregular basis, handling other matters entrusted to it by the syndicate meeting, etc.
(十) 接受各银团贷款成员不定期的咨询与核查,办理银团会议委托的其它事项等。
Article 14: The agent Bank shall act with due diligence. If the interests of the syndicate are damaged due to negligence or an omission on the part of the agent Bank, the syndicate meeting shall have the right to replace the agent Bank in accordance with the syndicated loan agreement and require the agent Bank to compensate for the relevant losses. The specific provisions therefor may be stipulated in the syndicated loan agreement or other such document.
第十四条 代理行应勤勉尽责,因代理行行为过失或不作为导致银团利益受损,银团会议有权根据银团贷款协议的约定更换代理行,并要求代理行对相关损失进行赔偿。具体约定可在银团贷款协议等文件中载明。
Article 15: The term "syndicate participating Bank" means a Bank invited by the lead Bank to join the syndicate and to provide the loan to the borrower in the share undertaken by it as determined through consultations.
第十五条 银团参加行是指接受牵头行邀请,参加银团并按照协商确定的承贷份额向借款人提供贷款的银行。
The main duties of a syndicate participating Bank are to attend syndicate meetings, transfer funds on time and in full into the account designated by the agent Bank as agreed understand and keep abreast of the borrower's day-to-day business operations and changes in its credit position during the term of the loan and notify the agent Bank in a timely manner of any irregular circumstances that it discovers.
银团参加行主要职责是参加银团会议,按照约定及时足额划拨资金至代理行指定的账户;在贷款续存期间应了解掌握借款人的日常经营与信用状况的变化情况,对发现的异常情况应及时通报代理行。
Article 16: The term "security agent Bank" means the Bank in a syndicated loan where the security structure is relatively complex that is responsible for tasks such as putting in place the various types of security for the syndicated loan and the transfer and management of the mortgaged (pledged) things.
第十六条 担保代理行是指在担保结构比较复杂的银团贷款中,负责落实银团贷款的各项担保及其抵(质)押物转让、管理等工作的银行。
PART THREE: PROMOTION AND ORGANIZATION OF A SYNDICATED LOAN
第三章 银团贷款发起和筹组
Article 17: The use of a syndicated loan is encouraged for large loans characterized by any of the following circumstances:
第十七条 有下列情形之一的大额贷款,鼓励采取银团贷款方式:
(1) financing of a large group-customer or large project or various large operating capital financings;
(一) 大型集团客户和大型项目的融资以及各种大额流动资金的融资;
(2) the total financing for a single enterprise or single project exceeds 10% of the lender's capital balance;
(二) 单一企业或单一项目的融资总额超过贷款行资本金余额10%的;
(3) the total credit to be extended to a single group-customer exceeds 15% of the lender's capital balance; or
(三) 单一集团客户授信总额超过贷款行资本金余额15%的;
(4) the borrower uses competitive negotiations to select banking financial institutions to finance a project.
(四) 借款人以竞争性谈判选择银行业金融机构进行项目融资的。
A banking association in a region may organize member banks within its region in determining the specific lower limit for syndicated loans based on the foregoing principles and while taking into account the realities of the region.
各地银行业协会可根据以上原则,结合本地区的实际情况,组织辖内会员银行共同确定银团贷款额度的具体下限。
Article 18: The promotion of a syndicated loan may be proposed by the borrower or a Bank. Following the approval or selection of the lead Bank by the borrower, it shall negotiate with the borrower to reach the preliminary terms and conditions of the syndicated loan and issue a preliminary syndicated loan memo stipulating such terms and conditions.
第十八条 银团贷款的发起由借款人或银行等提出。经借款人同意或选定的牵头行,应与借款人谈妥银团贷款的初步条件,并出具载明这些条件的银团贷款预约书。
Article 19: The lead Bank shall conduct a pre-loan due diligence investigation of the borrower or loan project in accordance with the requirements of the Guidelines for Due Diligence by Commercial Banks When Extending Credit and, on such basis, conduct preliminary negotiations with the borrower, discussing the purpose and amount of, interest rate on, and term of, the loan, the form of security, the drawdown conditions, the repayment method and related charges, etc. On this basis, it shall then prepare the syndicated loan information memorandum.
第十九条 牵头行应按照《商业银行授信工作尽职指引》的要求,对借款人或贷款项目进行贷前尽职调查,并在此基础上与借款人进行前期谈判,商谈贷款的用途、额度、利率、期限、担保形式、提款条件、还款方式和相关费用等,并据此编制银团贷款信息备忘录。
Article 20: The syndicated loan information memorandum shall be prepared by the borrower with the assistance of the lead Bank on the basis of the pre-loan investigation and shall be distributed to the potential participating banks by the lead Bank, serving as an important basis for the potential participating banks to review the loan and propose revisions.
第二十条 银团贷款信息备忘录是牵头行在贷前调查基础上协助借款人编制,并由牵头行分发给潜在参加银行,作为潜在参加银行审贷和提出修改建议的重要依据之一。
The syndicated loan information memorandum shall mainly include the basic terms and conditions of the syndicated loan, the legal status and an overview of the borrower, the borrower's financial position, an overview of the project, a market analysis, an analysis of the financial cash flow of the project, a description of the guarantor/thing provided as security, title to the collateral, risk factors, risk avoidance measures, the examination and approval procedures for the project, an environmental impact measurement and assessment document issued by the competent environmental protection authority, etc.
银团贷款信息备忘录内容主要包括:银团贷款的基本条件、借款人的法律地位及概况、借款人的财务状况、项目的概况及市场分析、项目的财务现金流量分析、担保人/担保物介绍、抵押品物权、风险因素及避险措施、项目的准入审批手续及有权环保机构出具的环境影响监测评估文件等。
Article 21: In the course of preparing the syndicated loan information memorandum, the lead Bank shall truthfully disclose to the potential participating banks all of the true information about the borrower and ensure that the information included in the syndicated loan information memorandum is substantially true, complete and correct.
第二十一条 牵头行在编制信息备忘录过程中,应如实向潜在参加行披露借款人的全部真实信息,并确保信息备忘录中所包括的数据在实质上是真实、完整和正确的。
Article 22: Before the information memorandum is distributed to other banks by the lead Bank, it shall be reviewed by the borrower and guarantor and they shall sign a declaration stating that they will be liable for the truthfulness and completeness of the information contained in the information memorandum.
第二十二条 牵头行在向其它银行发送信息备忘录前,信息备忘录应经借款人及担保人审阅,并签署 “对信息备忘录所载内容的真实性、完整性负责”的声明。
Article 23: With a view to enhancing the independence, impartiality and truthfulness of the information memorandum and other such syndicate information, the lead Bank may engage external intermediary organizations, such as a an accounting firm, asset appraisal firm, law firm and relevant technical experts to be responsible for evaluating and preparing the relevant information and data and to issue opinions.
第二十三条 为提高信息备忘录等银团数据的独立性、公正性和真实性,牵头行可聘请外部中介机构如会计师事务所、资产评估事务所、律师事务所及相关技朮专家负责评审编写有关信息及资料、出具意见书。
Article 24: Following consultations with the borrower, the lead Bank shall issue to the potential participating banks a syndicated loan invitation, accompanied by a list of the loan terms and conditions, the information memorandum, an undertaking of confidentiality, a loan undertaking and other such documents.
第二十四条 牵头行经与借款人协商,向潜在参加银行发出银团贷款邀请函,并随附贷款条件清单、信息备忘录、保密承诺函、贷款承诺函等文件。
The syndicated loan invitation is an invitation to treat issued to the potential participating banks by the lead Bank and is a valid legal document with which the lead Bank invites them on the behalf of the borrower to participate in the syndicated loan based on the principal loan terms and conditions indicated therein.
银团贷款邀请函是牵头行向潜在参加银行发出的要约邀请,是牵头行代表借款人,按照列示的主要贷款条件,邀请其参加银团贷款的有效法律文件。
Article 25: A Bank that receives such a loan invitation shall make its decision on whether or not to participate in the syndicated loan in accordance with the principles of "sharing information, independent loan examination, autonomous decision-making and bearing of risks oneself", pursuant to the contents of the syndicated loan information memorandum and based on a full comprehension of the relevant information on the borrower. If the information in the memorandum is insufficient to satisfy the examination and approval requirements of the potential syndicated loan participating Bank, the potential participating Bank may request the lead Bank to provide additional relevant information, put forth relevant work proposals or even directly conduct the relevant investigations.
第二十五条 收到贷款邀请函的银行应按照“信息共享、独立审贷、自主决策、风险自担”的原则,根据银团贷款信息备忘录的内容,在全面掌握借款人相关信息的基础上做出是否参加银团贷款的决策。当备忘录信息不足以满足潜在银团贷款参加行的审批要求时,可要求牵头行追加提供相关信息或提出相关工作建议乃至直接进行相关调查。
Article 26: The lead Bank shall reasonably determine the loan shares of the members of the syndicate based on the actual feedback from the invited banks. If the loan is over-subscribed or under-subscribed, the lead Bank may determine anew the shares of each member of the syndicate based on the pre-determined conditions or after consultations with the borrower.
第二十六条 牵头行应根据被邀请行实际反馈的情况,合理确定各银团成员的贷款份额。在超额认购或认购不足的情况下,牵头行可按事先约定的条件或与借款人协商后重新确定各银团成员行的承贷份额。
PART FOUR: SYNDICATED LOAN AGREEMENT
第四章 银团贷款协议
Article 27: The syndicated loan agreement is a legal document that is jointly executed by the members of the syndicate, the borrower and guarantor pursuant to relevant laws and regulations following consultations and that principally specifies the rights and obligations of the members of the syndicate, the borrower and guarantor. The syndicated loan agreement shall include the following main provisions:
第二十七条 银团贷款协议是银团贷款成员与借款人、担保人根据有关法律、法规,经过协商后共同签订,主要约定银团贷款成员与借款人、担保人之间的权利义务关系的法律文本。银团贷款协议应包括以下主要条款:
(1) the basic particulars of the parties;
(一) 当事人基本情况;
(2) definitions and interpretation;
(二) 定义及解释;
(3) provisions on the loan, including the amount and currency of the loan, the loan term, interest rate on the loan, purpose of the loan, repayment method, source of the funds for repayment, loan security portfolio, conditions for extension of the loan, provisions on prepayment, etc.;
(三) 与贷款有关的约定,包括贷款金额与币种、贷款期限、贷款利率、贷款用途、还款方式及还款资金来源、贷款担保组合、贷款展期条件、提前还款约定等;
(4) the loan amounts undertaken by each member of the syndicate and the dates for transfer of the loan proceeds;
(四) 银团各成员承诺的贷款额度及贷款划拨的时间;
(5) conditions precedent to drawing down the loan;
(五) 提款先决条件;
(6) charges;
(六) 费用条款;
(7) taxation;
(七) 税务条款;
(8) financial restrictions;
(八) 财务约束条款;
(9) non-financial undertakings, including limitations on the disposal of assets, changes of business, information disclosure, etc.
(九) 非财务承诺,包括资产处置限制、业务变更和信息披露等条款;
(10) events of default and handling of the same;
(十) 违约事件及处理;
(11) governing law; and
(十一) 适用法律;
(12) auxiliary documents.
(十二) 其它附属文件。
Article 28: The rights and obligations among the members of the syndicate may be provided for in the syndicated loan agreement or through the execution of an Internal Syndicate Agreement (or otherwise known as an Agreement Among Banks to a syndicated loan, etc.). The rights and obligations among the members of a syndicate mainly include the internal division of responsibilities among the members of the syndicate, their rights and obligations, the allocation of the syndicated loan shares, transfer of syndicated loan shares, rules of procedure for syndicate meetings, withdrawal by a member of the syndicate, dissolution of the syndicate, breach of contract and liability therefor, dispute resolution method, and other matters required by laws and regulations and those deemed necessary by the members of the syndicate.
第二十八条 银团贷款成员之间权利义务关系可在银团贷款协议中约定,也可另行签订《银团内部协议》(或称为《银团贷款银行间协议》等)。银团贷款成员间权利义务关系主要包括:银团贷款成员内部分工,权利与义务,银团贷款额度的分配,银团贷款额度的转让;银团会议的议事规则;银团贷款成员的退出和银团解散;违约行为及责任;解决争议的方式;法律法规要求银团贷款成员认为有必要约定的其它事项。
Article 29: The members of the syndicate shall transfer the loan proceeds on time and in full in strict accordance with the loan provisions and perform their duties and obligations in accordance with the loan contract.
第二十九条 银团贷款成员应严格按照贷款的约定,及时足额划付贷款款项,按照贷款合同履行职责和义务。
Article 30: The borrower shall ensure that it uses the loan for its earmarked purpose, transfer the loan principal and interest to the agent Bank on time and truthfully provide relevant information to the members of the syndicate in strict accordance with the syndicated loan agreement.
第三十条 借款人应严格按照银团贷款协议约定,保证贷款用途,及时向代理行划转贷款本息,如实向银团贷款成员提供有关情况。
PART FIVE: MANAGEMENT OF THE SYNDICATED LOAN
第五章 银团贷款管理
Article 31: Responsibility for the day-to-day management of the syndicated loan shall principally lie with the agent Bank. The lead Bank shall assist the agent Bank in tracking and keeping abreast of the progress on the project during the term of the loan, discover in a timely manner problems that could arise in the syndicated loan and inform the members of the syndicate thereof in writing as soon as possible.
第三十一条 银团贷款的日常管理工作主要由代理行负责。牵头行在本行贷款存续期内应协助代理行跟踪了解项目的进展情况,及时发现银团贷款可能出现的问题,并以书面形式尽快通报银团贷款成员。
Article 32: During the term of the syndicated loan, the lead Bank or agent Bank shall normally be responsible for holding regular syndicate meetings, or, alternatively, one-third or more of the members of the syndicate may jointly propose that a meeting be held. The main duties of the syndicate meeting shall be to discuss and consult on material issues that arise in the management of the syndicated loan.
第三十二条 银团贷款存续期间,通常由牵头行或代理行负责定期召开银团会议,也可由三分之一以上的银团贷款成员共同提议召开。银团会议的主要职能是讨论、协商银团贷款管理中的重大问题。
Article 33: The material matters deliberated on at syndicate meetings shall mainly include revision of the syndicated loan agreement, adjustment of loan shares, changing of the security, revision of the interest rate, termination of the syndicated loan, reporting of corporate mergers, acquisitions and material affiliated transactions, determination of default by the borrower, loan reorganization, adjustment of the agent Bank, etc.
第三十三条 银团会议商议的重大事项主要包括:修改银团贷款协议、调整贷款额度、变更担保、变动利率、终止银团贷款、通报企业并购和重大关联交易、认定借款人违约事项、贷款重组和调整代理行等。
Article 34: Once the loan matures, the borrower shall repay the principal of, and pay the interest on, the loan on time and in full. If the borrower is to prepay the loan, it shall notify the agent Bank thereof at least 60 business days prior to the next scheduled repayment date and, after obtaining consent of the members of the syndicate, shall discharge the principal of, and interest on, the loan that is due last, in accordance with the principle of first repaying that which is due last, based on the sequence of maturity of the relevant loan balances as specified in the syndicated loan agreement.
第三十四条 贷款到期后,借款人应按期如数归还贷款本息。借款人提前还款的,应至少在最近一个预定还款日的60个营业日前通知代理行,并在征得银团贷款成员同意后,根据银团贷款协议所列的相关贷款余额的到期次序,按后到期先还的原则偿还最后期贷款本息。
If the borrower prepays part of the loan, the members of the syndicate may charge it liquidated damages based on the time of the prepayment and the amount prepaid. The actual percentage to be charged may be specified in the syndicated loan agreement.
对借款人提前还款的,银团成员可按提前还款的时间和金额收取一定的违约金。具体收取比例可在银团贷款协议中约定。
Article 35: If a risk to the syndicated loan emerges, the agent Bank shall be responsible for holding a syndicate meeting in a timely manner to establish a Bank claim committee to recover, implement preservation measures for, reorganize and dispose of the loan. When necessary, it may apply for arbitration or institute a legal action in a people's court.
第三十五条 银团贷款出现风险时,代理行应负责及时召开银团会议,成立银行债权委员会,对贷款进行清收、保全、重组和处置。必要时可以申请仲裁或向人民法院提起诉讼。
Article 36: During the term of the syndicated loan, members of the syndicate may not, in principle, provide outside the syndicate to the same project a loan or other credit that is damaging to the interests of the other members of the syndicate.
第三十六条 银团贷款存续期间,银团贷款成员原则上不得在银团之外向同一项目提供有损银团其它成员利益的贷款或其它授信。
Article 37: If in the course of handling syndicated loan business a Bank discovers that the borrower has committed any of the breaches of contract set forth below and fails to remedy the same after the same has been pointed out, the agent Bank shall be responsible for holding a syndicate meeting to pursue its liability for breach of contract and notify the borrower and its guarantor in writing:
第三十七条 银行在办理银团贷款业务过程中发现借款人有下列违约行为,并经指正不改的,由代理行负责召开银团会议,追究其违约责任,并以书面形式通知借款人及其保证人:
(1) the relevant documents provided by it have been substantiated as being invalid;
(一) 所提供的有关文件被证实无效;
(2) it fails to perform and abide by its obligations under the syndicated loan agreement;
(二) 未能履行和遵守贷款协议所约定的义务;
(3) it fails to pay interest and principal in accordance with the syndicated loan agreement;
(三) 未能按贷款协议规定支付利息和本金;
(4) it uses means such as a fraudulent bankruptcy to evade its Bank debts; or
(四) 以假破产等方式逃废银行债务;
(5) it commits another breach of contract as specified in the syndicated loan agreement.
(五) 其它按贷款协议约定的违约事项。
Article 38: If a member of the syndicate commits any of the acts set forth below in the course of the syndicated loan extension and is determined, after review, at a syndicated loan meeting to be in breach of contract, it may be required to pay compensation for its breach. If the circumstances are serious, it shall bear legal liability. A dispute as mentioned above among the members of the syndicate shall not affect the performance of the loan agreement between the syndicate and the borrower.
第三十八条 银团成员在开展银团贷款业务过程中如有以下行为,经银团贷款会议审核认定违约的,可以对违约银团贷款成员做出违约赔偿处理。情节严重的,应承担法律责任。银团成员之间的上述纠纷,不影响银团与借款人所定贷款协议的执行。
(1) After receipt of a notice given by the agent Bank by the time specified in the agreement, the member of the syndicate fails to transfer the amount in full by the deadline specified in the agreement.
(一) 银团贷款成员收到代理行按协议规定时间发出的通知后,未按协议约定时限足额划付款项的;
(2) The member of the syndicate recovers the loan early without authorization or withdraws from the syndicate in breach of contract.
(二) 银团贷款成员擅自提前收回贷款或违约退出银团的;
(3) The member of the syndicate fails to implement the resolutions of the syndicate meeting.
(三) 不执行银团会议决议的;
(4) The borrower returns the principal of, and interest on, the syndicated loan but the agent Bank fails to pay the same to the members of the syndicate in a timely manner as agreed.
(四) 借款人归还银团贷款本息而代理行不如约及时划付银团贷款成员的;
(5) Another breach of the syndicated loan agreement, these Guidelines or other laws, regulations or rules is committed.
(五) 其它违反银团贷款协议、本业务指引以及其它法律法规、规章制度的行为。
Article 39: If a member of the syndicate is to transfer the loan in accordance with the syndicated loan agreement, it shall give advance notice thereof to the borrower and agent Bank. If the syndicated loan agreement specifies that the consent of the borrower is required, it shall obtain the prior consent of the borrower.
第三十九条 银团贷款成员依据银团贷款协议规定转让贷款的,应当提前通知借款人和代理行。如果银团贷款协议中约定必须经借款人同意的,应事先征得借款人同意。
Article 40: Members of the syndicate shall regularly submit information on the syndicated loan to the local banking association, including the quantity underwritten and held on the syndicated loan primary market, the quantity transferred to the secondary market, the interest rate on the syndicated loan, the charge rates, the loan term, the security conditions, the borrower's credit rating, etc.
第四十条 银团贷款成员应定期向当地银行业协会报送银团贷款有关信息。内容包括:银团贷款一级市场的包销量及持有量、二级市场的转让量,银团贷款的利率水平、费率水平、贷款期限、担保条件、借款人信用评级等。
Article 41: A Bank that engages in syndicated loan business shall formulate measures for the administration of its syndicated loan business based on these Guidelines while taking into consideration its own level of operation and management, establish a management mechanism appropriate for the risks associated with the syndicated loan business and designate a relevant department and persons with responsibility for the day-to-day management of syndicated loans.
第四十一条 开办银团贷款业务的银行应依据本指引规定,并结合自身的经营管理水平制定银团贷款业务管理办法,建立与银团贷款业务风险相适应的管理机制,并指定相关部门和专人负责银团贷款的日常管理工作。
Article 42: When banks extend a syndicated loan to a large group-customer, they shall be careful to guard against risks posed by the internal affiliated transactions of the group-customer and the mutual provision of security among affiliated parties. With respect to group-customers that have frequent internal affiliated transactions or significant mutual provision of security, banks shall strengthen their examination of such customer's creditworthiness, and strictly control extension of the loan.
第四十二条 银行向大型集团客户发放银团贷款,应注意防范集团客户内部关联交易及关联方之间相互担保的风险。对集团客户内部关联交易频繁、互相担保严重的,应加强对其资信的审核,并严格控制贷款发放。
PART SIX: SYNDICATED LOAN CHARGES
第六章 银团贷款收费
Article 43: The term "syndicated loan charges" means the relevant intermediary charges that members of a syndicate charge a borrower for providing financing services such as financial advice, raising of loan funds, credit guarantees and legal consulting, and are managed as part of a commercial Bank's intermediary business.
第四十三条 银团贷款收费是指银团成员接受借款人委托,为借款人提供财务顾问、贷款筹集、信用保证、法律咨询等融资服务而收取的相关中间业务费用,纳入商业银行中间业务管理。
Syndicated loan charges shall be determined through consultations between the members of the syndicate and the borrower based on the principles of "voluntary consultations, fairness, reasonableness and conformity of value with price" and shall be stipulated in the syndicated loan agreement or an invoice letter.
银团贷款收费应按照“自愿协商、公平合理、质价相符”的原则由银团成员和借款人协商确定,并在银团贷款协议或费用函中载明。
Article 44: The specific items comprising the syndicated loan charges may include an arranging fee, undertaking fees, agency fees, etc. Only those members of the syndicate that provide the corresponding services to the borrower shall be eligible for the syndicated loan charges.
第四十四条 银团收费的具体项目可包括安排费、承诺费、代理费等。银团费用仅限为借款人提供相应服务的银团贷款成员享有。
In general, the arranging fee shall be paid in one lump sum as a certain percentage of the total syndicated loan; the undertaking fees shall, in general, be charged annually by the method specified in the syndicated loan agreement at a certain percentage of the unused balance; and the agency fees shall be paid annually based on the amount of work of the agent Bank.
安排费一般按银团贷款总额的一定比例一次性支付;承诺费一般按未用余额的一定比例每年按银团贷款协议约定方式收取;代理费可根据代理行的工作量按年支付。
Article 45: In line with the principle of "whoever takes out a loan pays the charges", the syndicated loan charges shall be paid by the borrower. The types and amounts of the charges shall be determined by the borrower and lenders through consultations, and may not be determined by adding points to the interest rate.
第四十五条 银团贷款的收费应遵循“谁借款、谁付费”的原则,由借款人支付。其费用种类和金额由借贷双方协商确定,不得在利率基础上加点确定。
Article 46: The lead Bank may not impose any unreasonable conditions on the members of the syndicate, may not compete for syndicated loan business by means such as waiving charges, nor may it take advantage of its organizing of the syndicated loan to sell other financial products to the members of the syndicate or the borrower through a tying arrangement or charge them other fees.
第四十六条 牵头行不得向银团贷款成员附加任何不合理条件,不得以免予收费的手段,开展银团贷款业务竞争,不得借筹组银团贷款向银团贷款成员和借款人搭售其它金融产品或收取其它费用。
PART SEVEN: SUPPLEMENTARY PROVISIONS
第七章 附则
Article 47: The China Banking Regulatory Commission shall be in charge of interpreting these Guidelines. In the event of a discrepancy between these Guidelines and previously issued provisions on syndicated loan business, these Guidelines shall prevail.
第四十七条 本指引由银监会负责解释。凡此前公布的有关银团贷款业务规定与本指引不一致的,按本指引执行。
Article 48: These Guidelines shall be effective as of the date of issuance.
clp reference:3600/07.08.11prc reference:银监发 [2007] 68 号promulgated:2007-08-11effective:2007-08-11第四十八条 本指引自公布之日起实施。
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