On March 22, the State Administration of Financial Supervision and Administration announced that it would solicit public opinions on the Administrative Measures for Syndicated Loan Business (Draft for Comments).
The draft proposes that banks should strengthen high-quality financial services for major strategies, key areas and weak links to support the development of the real economy, and at the same time strengthen penetrating management, control customer concentration, and effectively prevent and resolve risks.
When a single bank acts as the lead bank, its share of the loan shall not be less than 15% of the total amount of the syndicated financing, and the share distributed to other syndicate members shall not be less than 30% in principle.
Measures for the Administration of Syndicated Loan Business
(Draft for Solicitation of Comments)
Chapter I: General Provisions
Article 1 These Measures are formulated in accordance with the Banking Supervision Law of the People's Republic of China, the Commercial Bank Law of the People's Republic of China, the Civil Code of the People's Republic of China and other laws and regulations in order to promote and standardize the syndicated loan business, diversify credit risks, and promote interbank cooperation.
Article 2 These measures apply to banking financial institutions (hereinafter referred to as banks) that are established and operate loan business in accordance with law in China.
For the purposes of these Measures, the term "syndicated loan" refers to the domestic and foreign currency loans or credit business provided by two or more banks to the borrower through the correspondent bank in accordance with the same loan contract and in accordance with the agreed time and proportion.
For the purposes of these Measures, the term "grouped syndicated loan" refers to the operation mode of syndicated loans in which syndicated members provide customers with different terms or types of loans in the same syndicated loan contract through loan grouping. The term, interest rate, purpose and other loan conditions of the same group shall be the same.
Article 3 Banks shall abide by laws, regulations and regulatory provisions, conform to the national credit policy, and adhere to the principles of equality and mutual benefit, fair consultation, honest performance and assumption of risk.
Article 4 A bank that initiates syndicated loan business shall, in accordance with these Measures, formulate a syndicated loan management system in combination with its own operation and management level, establish a management mechanism that is compatible with the risks of the syndicated loan business, and designate relevant departments to be responsible for the daily management of the syndicated loan.
Article 5 In carrying out syndicated loan business, banks should strengthen high-quality financial services for major strategies, key areas and weak links, support the development of the real economy, and at the same time strengthen penetrating management, control customer concentration, and effectively prevent and resolve risks. In any of the following circumstances, syndicated loans are encouraged:
(1) Large group customers, large-scale project financing and large-scale working capital financing;
(2) a large risk exposure of a single client or a group of affiliated clients exceeding 2.5% of the net Tier 1 capital;
(3) The total credit amount of a single group customer exceeds 15% of the net capital of the lending bank;
(4) The borrower selects a banking financial institution for project financing through competitive negotiation.
Based on the above principles and in light of the actual situation in the region, local banking associations may organize member banks within their jurisdiction to jointly determine the specific lower limit of the syndicated loan amount.
Article 6 The banking supervision institution of the State Council and its dispatched agencies shall supervise and administer the syndicated loan business of banks in accordance with law.
In accordance with these Measures, the China Banking Association is responsible for formulating self-discipline rules for the syndicated loan industry and issuing model texts of syndicated loan contracts. Local banking associations carry out relevant self-discipline work in their respective regions.
Chapter 2 Syndicate Members
Article 7 The banks participating in the syndicated loan are all members of the syndicate. The syndicate members shall independently determine their respective credit granting behaviors in accordance with the principle of "information sharing, independent approval, independent decision-making, and self-risking", and enjoy the corresponding rights and perform the corresponding obligations under the syndicated loan according to their actual share.
Article 8 According to the functions and division of labor in the syndicated loan, the members of the syndicate are usually divided into the roles of the lead bank, the agent bank and the participating bank, and may play cross-positions.
Article 9 The lead bank of the syndicated loan refers to the bank that, with the consent of the borrower, is responsible for initiating the organization of the syndicate and distributing the shares of the syndicated loan. Mainly perform the following duties:
(1) Designing syndicated financing structures, formulating distribution plans, initiating and organizing syndicated loans, and distributing syndicated loan shares;
(2) Conduct pre-loan due diligence on the borrower, draft the syndicated loan information memorandum, recommend it to potential participating banks, follow up the distribution progress in a timely manner and inform the borrower;
(3) Negotiate with the borrower on behalf of the syndicate to determine the terms of the syndicated loan;
(4) Representing the syndicate of banks to hire relevant intermediaries to draft legal texts for syndicated loans;
(5) Organize syndicate members to sign a written syndicated loan contract with the borrower;
(6) Other duties as determined in the syndicated loan contract.
The lead bank shall have sound business procedures, corresponding business capabilities and professionals who are familiar with the business.
According to the scale, organization and distribution of the syndicate, the syndicate accepts the entrustment of the borrower and may add roles such as deputy lead bank and joint lead bank within the syndicate, and assist the lead bank in performing the corresponding duties in accordance with these Measures and the syndicated loan contract.
Article 10 According to the responsibility of the lead bank for the final arrangement amount of the loan, the distribution of syndicated loans by the lead bank of the syndicate can be divided into three types: full underwriting, partial underwriting and best efforts to sell.
Article 11 When a single bank acts as the lead bank, its share of loans shall not be less than 15% of the total amount of syndicate financing in principle, and the share distributed to other syndicate members shall not be less than 30% in principle.
Where a bank carries out a transfer transaction in accordance with these Measures, it shall not exceed the provisions of the preceding paragraph.
Article 12 The syndicated agent bank is the management bank of the syndicated loan, and shall carry out the management and coordination activities of the syndicated loan in accordance with the syndicated loan contract. Mainly perform the following duties:
(1) Reviewing and urging borrowers to implement loan conditions, provide loans or handle other credit services;
(2) Handle the guarantee procedures for the syndicated loan and be responsible for the daily management of the collateral;
(3) Formulating account management plans, opening special accounts to manage syndicated loan funds, registering changes in special account funds one by one, and establishing ledgers;
(4) Notify the syndicate members to transfer the funds to the designated account according to the agreed date of use or the borrower's application for the use of funds, in accordance with the proportion of the loan share agreed in the syndicated loan contract;
(5) Collect the principal and interest of the syndicated loan and collect the relevant fees, and transfer them to the designated account of the syndicate members in a timely manner according to the loan acceptance ratio and the syndicated loan contract;
(6) Responsible for the management of the payment of syndicated loan funds, post-loan management and supervision and inspection of the use of loans, and regularly report to the syndicate members;
(7) Pay close attention to the borrower's financial situation, and notify the syndicate members as soon as possible of major events affecting the borrower's ability to repay such as mergers and acquisitions, equity dividends, foreign investment, asset transfers, and debt restructuring that occur during the loan period;
(8) In the event of a default by the borrower, promptly organize the members of the syndicate to liquidate, preserve, recover or otherwise dispose of the defaulted loan;
(9) Responsible for organizing and convening syndicate meetings and coordinating the relationship between syndicate members;
(10) To accept the consultation and verification of the syndicate members from time to time, and to handle other matters entrusted by the syndicate meeting.
Article 13 The correspondent bank shall be designated by the lead bank in the stage of syndicate preparation or determined through consultation among the members of the syndicate. The syndicate agent shall represent the interests of the syndicate, and the borrower's affiliate shall not act as the agent bank.
For syndicated loans with a relatively complex structure, the roles of settlement agent bank and guarantee agent bank may be added within the syndicate according to the duties of the agent bank, and the corresponding loan management work may be carried out in accordance with the syndicated loan contract. The agent for the same matter can only be acted by one bank.
Article 14 The correspondent bank shall have the professional ability and professional personnel to perform the duties of syndicated loan management.
The correspondent bank shall be honest and trustworthy, diligent and responsible. If the interests of the syndicate are damaged due to the actions of the correspondent bank, the syndicate members have the right to change the correspondent bank in the manner agreed in the syndicated loan contract and require the correspondent bank to compensate for the relevant losses.
Article 15 The participating bank refers to the bank that accepts the invitation of the lead bank, participates in the syndicate and provides loans to the borrower in accordance with the share of loans determined through negotiation. The participating bank shall, in accordance with the agreement, transfer funds to the account designated by the correspondent bank in full and in a timely manner, participate in the syndicate meeting, do a good job in post-loan management, understand and grasp the changes in the borrower's daily operation and credit status, and promptly notify the correspondent bank of the abnormal situation of the borrower.
Article 16 In general, there shall be no more than three groups of syndicated loans in groups, and in principle, two or more banks shall participate in each group.
A unified correspondent bank shall be set up for grouped syndicated loans.
Chapter III Initiation and Formation of Syndicated Loans
Article 17 The syndicated loan shall be initiated by the borrower. The lead bank shall negotiate with the borrower the preliminary terms of the syndicated loan and obtain a letter of appointment for the syndicated loan signed by the borrower.
Article 18 The lead bank shall, in accordance with the relevant requirements of due diligence in credit granting work, conduct pre-loan due diligence on the borrower or loan project, and prepare a syndicated loan information memorandum.
In order to enhance the independence, impartiality and authenticity of the syndicated loan information and other syndicated loan materials, the lead bank may hire an external intermediary or relevant technical expert to be responsible for reviewing and compiling the relevant information and materials and issuing opinions.
Article 19 In the process of preparing the syndicated loan information memorandum, the lead bank shall truthfully disclose all the true information of the borrower to the potential participating banks. Before sending the syndicated loan information memorandum to other banks, the lead bank shall require the borrower to review the syndicated loan information memorandum and the borrower shall sign a statement that it is "responsible for the authenticity and completeness of the contents contained in the information memorandum". If necessary, the lead bank may also require the guarantor to review the syndicated loan information memorandum and sign the above statement.
Article 20 The syndicated loan information memorandum shall be distributed by the lead bank to the potential participating banks as a reference basis for the potential participating banks to review the loan and put forward suggestions for amendment.
Article 21 After consultation with the borrower, the lead bank shall issue a syndicated loan invitation letter to the potential participating bank, and attach the list of loan conditions, information memorandum, confidentiality commitment letter, loan commitment letter and other documents.
Article 22 The bank that receives the invitation letter for the syndicated loan shall make a decision on whether or not to participate in the syndicated loan on the basis of fully grasping the relevant information of the borrower and independently assessing the credit status of the borrower.
Article 23 The lead bank shall, based on the actual feedback from the potential participating banks, reasonably determine the loan share of each syndicate member. In the event of oversubscription or undersubscription, the lead bank may re-determine the share of each syndicate member in accordance with the terms agreed in advance or after consultation with the borrower.
Article 24 During the period of effective appointment of the lead bank, other banks that have not been appointed among the members of the syndicate shall not appoint or carry out financing negotiations with the borrower on the same project.
Chapter IV Syndicated Loan Contracts
Article 25 The syndicated loan contract is a legal text signed by the syndicate members, the borrower and the guarantor after consultation in accordance with the relevant laws and regulations, and mainly stipulates the rights and obligations between the syndicate members, the borrower and the guarantor. The syndicated loan contract shall include the following key clauses:
(1) The basic information of the parties;
(2) definitions and interpretations;
(3) Agreements related to loans, including loan amount and currency, loan term, loan interest rate, loan purpose, payment method, repayment method and source of repayment funds, loan guarantee portfolio, loan extension conditions, early repayment agreement, etc.;
(4) The loan amount promised by each member of the syndicate and the time of loan allocation;
(5) prerequisites for withdrawal;
(6) Fee Terms;
(7) tax provisions;
(8) Financial constraints;
(9) Non-financial commitments, including terms such as restrictions on asset disposal, business changes, and information disclosure;
(10) Loan transfer;
(11) Events of default and their handling;
(12) Applicable Law;
(13) Other agreements and ancillary documents.
Article 26 The rights and obligations between the syndicate members may be stipulated in the syndicated loan contract, or the syndicate internal agreement and other documents may be signed separately.
The rights and obligations between the syndicate members mainly include: the division of labor, rights and obligations among the syndicate members, the allocation and transfer of the syndicate loan line, the rules of procedure of the syndicate meeting, the withdrawal of the syndicate members and the dissolution of the syndicate, the breach of contract and liability, the way to resolve disputes, and other matters that the syndicate members deem necessary to agree.
Article 27 The members of the syndicate shall pay the loan money in full and in a timely manner in strict accordance with the provisions of the syndicated loan contract, and perform the duties and obligations stipulated in the contract.
Article 28 The borrower shall, in strict accordance with the provisions of the syndicated loan contract, ensure the purpose of the loan, transfer the principal and interest of the loan to the agent bank in a timely manner, and truthfully provide relevant information to the syndicate members.
Article 29 A bank carrying out syndicated loan business may formulate a syndicated loan contract and related documents in accordance with the model text of the syndicated loan contract and the model text of the front-end document formulated by the China Banking Association.
Chapter 5 Management of Syndicated Loans
Article 30 The correspondent bank shall be responsible for the day-to-day management of the syndicated loan. The correspondent bank shall follow up the progress of the project during the duration of the syndicated loan, and carry out collateral management, account management, loan collection and issuance, and principal and interest recovery in accordance with the provisions of Article 12 of these Measures.
The syndicated loan shall be collected, disbursed and recovered by the correspondent bank in a unified manner, and it is strictly forbidden for each syndicate member to directly issue and recover the loan by bypassing the correspondent bank. The correspondent bank shall not withhold or misappropriate the syndicated loan funds returned by the borrower.
Article 31 If the agent bank discovers any problems that may arise in the syndicated loan, it shall notify the syndicate members as soon as possible. If a syndicate member discovers a problem detrimental to the interests of the syndicate, he or she shall promptly inform the correspondent bank, and the correspondent bank shall report to the other syndicate members.
Article 32 During the existence of the syndicated loan, the syndicate meeting shall be convened by the agent bank on a regular basis, or proposed by a certain proportion of the syndicate members in accordance with the syndicated loan contract.
Article 33 The main function of the syndicate meeting is to discuss and negotiate major matters in the management of syndicated loans, mainly including amending the syndicated loan contract, adjusting the loan amount, changing the guarantee, changing the interest rate, terminating the syndicated loan, notifying the merger and acquisition of enterprises and major related party transactions, determining the default of the borrower, restructuring the loan and adjusting the correspondent bank, etc.
Article 34 If a syndicate member discovers that the borrower has any of the following behaviors in the course of handling the syndicated loan business, the agent bank shall, in accordance with the provisions of the syndicated loan contract, be responsible for convening a syndicate meeting, investigate the liability for breach of contract, and notify the borrower and its guarantor in writing:
(i) The relevant documents provided prove to be invalid;
(ii) Failure to perform and comply with the obligations agreed in the loan contract;
(iii) Failure to pay interest and principal as stipulated in the loan contract;
(4) Evasion of bank debts by means of fake bankruptcy;
(5) Other breach of contract as agreed in the loan contract.
Article 35 When there is a risk of default on a syndicated loan, the agent bank shall, in accordance with the provisions of the syndicated loan contract, be responsible for convening a syndicate meeting in a timely manner, and may set up a syndicate creditor's rights committee to liquidate, preserve, reorganize and dispose of the loan. When necessary, they may apply for arbitration or file a lawsuit in the people's court. The syndicate members shall provide assistance in accordance with the contract.
Article 36 In the event of a default by the borrower, and the amount returned is insufficient to repay the outstanding loans, the syndicate members shall be repaid in proportion to the balance of the loans. Unless otherwise agreed in the syndicated loan contract.
Article 37 During the duration of the syndicated loan, the members of the syndicate shall, in principle, not provide loans or other credit to the same project outside the syndicate that are detrimental to the interests of other members of the syndicate.
Article 38 Where a syndicate member commits any of the following acts in the course of carrying out the syndicated loan business, causing damage to the syndicate, he or she shall bear civil liability in accordance with the provisions of the law and the syndicated loan contract:
(1) The lead bank or agent bank fails to perform loan investigation and management duties in accordance with the contract;
(2) After receiving the notice issued by the correspondent bank at the time specified in the contract, the syndicate members fail to transfer the payment in full within the time limit agreed in the contract;
(3) The syndicate members withdraw the loan in advance or withdraw from the syndicate in default without authorization;
(4) Failure to implement the resolution of the syndicate meeting;
(5) The borrower repays the principal and interest of the syndicated loan but the correspondent bank fails to pay the syndicate members in a timely manner as agreed;
(6) Other acts that violate laws and regulations and syndicated loan contracts.
The above-mentioned disputes between the syndicate members shall not affect the execution of the loan contract concluded between the syndicate and the borrower.
Article 39 When a bank grants syndicated loans to a large group customer, it shall pay attention to guarding against the risks of related party transactions within the group customer and mutual guarantee between related parties. For group customers with frequent internal related party transactions, serious mutual guarantees, or collective fund operations, the review of their credit standing shall be strengthened, and the issuance of loans shall be strictly controlled.
Article 40 When a commercial bank carries out syndicated loan business, it may charge fees for providing services such as syndicate formation, underwriting arrangement, loan commitment, and management of syndicated affairs, and the fees charged for syndicated loans shall be included in the management of commercial bank service prices.
Article 41 The fees charged for a syndicated loan shall be determined through consultation between the syndicate members and the borrower in accordance with the provisions of the banking regulatory authority under the State Council and the price department under the State Council, and shall be determined through consultation between the syndicate members and the borrower in accordance with the principles of "voluntary negotiation, fairness and reasonableness, openness and transparency, consistency between quality and price, and separation of interest and fees", and shall be specified in the syndicated loan contract or fee letter.
Banks should improve the pricing mechanism, clarify the internal implementation standards, establish an internal over-limit review mechanism, and fully disclose and disclose to borrowers information such as fee composition, billing standards, and billing methods.
Article 42 The fees charged for the syndicated loan shall be paid by the borrower, and the relevant fees shall be limited to the syndicate members who provide corresponding services to the borrower, and shall ensure fairness and reasonableness.
Article 43 Under any of the following circumstances, a bank shall not charge a syndicate service fee from the borrower:
(1) Different branches of a corporate bank jointly issue loans to enterprises;
(2) Falsely providing syndicated services in the name of a syndicated loan, but failing to provide syndicated services;
(3) Failing to perform the duties of syndicate formation or agency as agreed;
(4) Other circumstances in violation of regulatory provisions.
Article 44 The lead bank shall not put forward any unreasonable conditions to the syndicate members, and shall not force the syndicate members or borrowers to tie in other financial products, provide other services or collect fees in the name of other services under the pretext of organizing a syndicated loan.
Chapter VI Syndicated Loan Transfer Transactions
Article 45 A syndicated loan transfer transaction refers to a transaction in which the lender under the syndicated loan acts as the transferor and transfers the balance of the syndicated loan held by the lender to other lenders or third parties as the transferee, and the transferee pays the transfer price to the transferor.
Article 46 A bank may partially transfer the syndicated loan it holds, but it is limited to splitting and transferring the outstanding principal and interest receivable together in proportion.
Article 47 Where a bank transfers a syndicated loan, it shall give priority to the transfer to other syndicate members, and if the other syndicate members are unwilling to accept the transfer, the transferor may transfer it to a bank other than the syndicate members.
The transferee shall comply with the provisions of these Measures, enjoy the rights stipulated in the syndicated loan contract, and perform the obligations stipulated in the syndicated loan contract.
Article 48 The transfer of syndicated loans shall strictly abide by the principles of authenticity and cleanliness to ensure the true transfer of assets and risks. It is strictly forbidden to circumvent supervision by signing repurchase agreements and other means.
Article 49 The pricing of a transfer transaction shall be negotiated and set independently by the parties to the transaction according to the subject matter of the transfer, the market and other circumstances.
Article 50 The transferor of a transfer transaction shall ensure that the loan contract and other documents related to the subject matter of the transfer have been validly signed by all parties, that it has the legal right to dispose of the shares transferred, and that there are no other rights on the subject matter of the transfer, including the debtor's right of set-off, that may cause the value of the subject matter of the transfer to be reduced.
The transferor shall fully disclose the information to the transferee for the purpose of the transfer transaction, and shall not provide information that it knows to be false or misleading, and shall not conceal negative information related to the subject matter of the transfer.
Article 51 The transferee of the transfer transaction shall, in accordance with the provisions of the transfer contract, accept the subject matter of the transfer and pay the transfer price, and shall not use the relevant information provided by the transferor for any illegal purpose or use the information in violation of confidentiality obligations.
Article 52 The correspondent bank shall perform the relevant obligations of the transfer transaction in a timely manner in accordance with the provisions of the syndicated loan contract, and other syndicate members, guarantors and other relevant parties shall perform the relevant obligations in accordance with the provisions of the syndicated loan contract and assist in the smooth progress of the transfer transaction.
Article 53 After the completion of the transfer of the syndicated loan, the transferor and the two parties shall confirm the transfer of assets in strict accordance with the Accounting Standards for Business Enterprises and relevant regulations, and make corresponding accounting and accounting treatments.
The calculation of regulatory indicators such as the capital adequacy ratio, provision coverage ratio, and large risk exposure of the transferor and the transferee shall be adjusted accordingly in accordance with the provisions.
Article 54 The transfer of a syndicated loan shall, in accordance with the relevant regulatory provisions, be registered in advance on the registration and circulation platform approved by the banking regulatory authority of the State Council, and the transfer transaction shall be carried out.
Article 55 The matters not covered in these Measures concerning the transfer of syndicated loans shall be implemented in accordance with the relevant regulatory provisions on the transfer of credit assets of the banking regulatory institution under the State Council.
Where the transfer of syndicated non-performing loans is carried out, the relevant regulatory provisions of the banking regulatory authority of the State Council on the transfer of non-performing loans shall apply.
Chapter VII: Supervision and Management
Article 56 A bank shall, in accordance with the provisions of the banking supervision institution under the State Council, submit reports, statements, documents and materials related to syndicated loans.
The China Banking Association and local banking associations may collect information related to syndicated loans, and the specific content shall be determined through consultation with the member units.
Article 57 The banking supervision institution shall supervise and administer the syndicated loan business by combining on-site supervision and off-site supervision.
Article 58 Where a bank violates the provisions of these Measures, the banking regulatory institution shall take supervisory measures or impose administrative penalties in accordance with law.
Chapter VIII: Supplementary Provisions
Article 59 These Measures shall apply to the syndicated loan business carried out by non-bank financial institutions established in accordance with law within the territory of China.
Article 60 In principle, village or township banks shall not participate in the issuance of syndicated loans. Where rural commercial banks, rural cooperative banks, and rural credit cooperatives carry out bank (cooperative) group loan business, and the banking regulatory authority of the State Council provides otherwise, such provisions shall apply.
Article 61 The banking regulatory authority of the State Council shall be responsible for the interpretation of these Measures.
Article 62: These Measures shall be implemented as of the date of promulgation. The Guidelines for Syndicated Loan Business (Yin Jian Fa [2011] No. 85) shall be repealed at the same time.
责编:陶纪燕 | 审核:李震 | 监审:万军伟
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