信贷融资合同(英).doc

精选范本 Document Information Document Name Credit The Commercial Banking Law of the People s Republic of China 1995 adopted at the Thirteenth Session of the Standing Committee of the Eight National People s Congress on 10 May 1995 promulgated by Order No 47 on 10 May 1995 the Banking Law and 精选范本 The PRC Security Law adopted at the Fourteenth Session of the Standing Committee of the Eighth National People s Congress and promulgated on 30 June 1995 effective as of 1 October 1995 the Security Law Of this legislation the PRC Security Law in particular has paved the way for a variety of different forms of lending instruments by which financial institutions can secure monies owing to them and manage the attendant risks in connection with loans granted by them You should also be aware of the Foreign Debt Administration Tentative Procedures which came into effect on 1 March 2003 These provide a general code with respect to foreign borrowing including by both sovereign and non sovereign entities The procedures include guidelines concerning how generally foreign funding is to be used including at Article 23 a statement that foreign debt funds are to be used mainly for economic development and structure adjustments of the balance of foreign debts Also importantly Article 40 provides that where a domestic institution that borrows foreign funds or has provided external security for it fails to obtain the required approvals any external lending contract or security contract executed is deemed not to have any legal binding effect Finally a cautionary note The types of financing facilities available and law and regulation relating to them are constantly expanding and being revised in the PRC Accordingly practitioners should be aware of and concern themselves with any changes in such laws as they occur 3 DOCUMENT INTRODUCTIONS The model contracts in the chapter are described below Included for the more substantial contracts is a discussion of the fact pattern assumptions and key provisions of the contracts 3 1Commitment Letter Additional Facility CC02 This precedent commitment letter and accompanying term sheet contemplates provision of an additional loan facility specifically a non revolving credit facility pursuant to an existing loan contract The precedent can be modified for use for a number of currencies and for a number of purposes Included in the term sheet is provision for bankers acceptances and documentary credits which are discussed in greater detail under the document description for Item 5 Loan Agreement Long Form 3 2Commitment Letter Long Form CC03 精选范本 This precedent contemplates funding for an acquisition financing and offers a range of facilities specifically an unspecified currency loan facility and U S Dollar term loan facility combined with an acquisition of an equity interest in the borrower as may occur with many substantial project loans The commitment letter also contemplates a number of co arrangers The covenants contained in this commitment are sophisticated and unlikely to suit every circumstance even in the context of a standard project loan In addition certain restrictions related to the granting of such loans by foreign parties may apply These are more fully spelled out in the document descriptions for Item 4 Loan Agreement Short Form and Item 5 Loan Agreement Long Form below 3 3Loan Agreement or z the daily cost of funds in the United States This is a floating rate of interest LIBOR Rate Advances The Borrower also has the option of paying interest on its U S Dollar Advances at the LIBOR Rate sometimes referred to as LIBOR or the London Interbank Offered Rate The LIBOR Rate is an interest rate based on the Lender s cost of obtaining funds in the LIBOR market and is therefore a fixed rate 精选范本 The term LIBORs refers to U S dollar denominated deposits held in branches outside the U S including foreign branches of U S banks The largest market for LIBOR deposits is in London In order to make a LIBOR Advance each Lender will obtain U S Dollar deposits in the London market in the amount to be advanced to the Borrower at the rate LIBOR then being offered by the Eurobanks for the Interest Period specified by the Borrower The LIBOR Rate charged to the Borrower will thus be LIBOR plus the agreed margin for the duration of the Interest Period ii Bankers Acceptances A The Bankers Acceptance facility is another method by which the Borrower can obtain funds but it is conceptually more complicated than a direct loan Advance from the Lender to the Borrower A Bankers Acceptance is a draft in many ways similar to a cheque in which the Borrower also called the drawer or customer directs its bank to pay a principal sum to a payee in this case also the Borrower at a specified maturity date in the future At the time the draft is created it is stamped or accepted by the bank on which it is drawn When the bank stamps the draft it assumes the firm obligation to pay the principal sum to the payee on the maturity date and the bank charges the Borrower a fee for stamping the draft and accepting this obligation B Because the completed Bankers Acceptance is a negotiable instrument as soon as it is created the payee in this case the Borrower can endorse it and can theoretically sell it in the money market to a purchaser who will pay the Borrower a purchase price which is discounted from the principal or face amount of the Bankers Acceptance On the maturity date the purchaser as the new payee under the draft will collect the full face amount from the bank and the bank will look to the drawer of the draft again the Borrower to reimburse it for the face amount which the bank paid out to the purchaser Because banks generally have better access to money markets than Borrowers a bank will often agree to be the initial purchaser of the draft although it may later sell the draft to a third party in the market C The effect of all this is that on the creation and sale of the Bankers Acceptance the Borrower receives a sum of money i e the 精选范本 discounted purchase price from the purchaser and on the later maturity date the Borrower pays back a slightly higher sum of money i e the full face amount of the Bankers Acceptance for which the bank must be reimbursed The effect is thus quite similar to the Borrower s obtaining a loan Advance from the bank which it later pays back with interest The cost to the Borrower of using a Bankers Acceptance is represented by the stamping fee and the amount of the discount and if the Borrower feels that this cost would be lower than its interest costs for a loan Advance would be then the Borrower may choose to use the Bankers Acceptance facility iii Documentary Credits A The Documentary Credit facility like the Bankers Acceptance facility is another somewhat complicated method by which the Borrower obtains credit and the Lender assumes the associated risk There are three parties to a letter of credit transaction the issuing Lender the beneficiary and the customer in this case the Borrower A letter of credit is a promise by the issuing Lender to pay the beneficiary a fixed sum of money upon the fulfilment by the beneficiary of certain conditions usually the presentation to the Lender of specified documents The Lender s promise is often expressed as being on behalf of or for the account of its customer the Borrower This means that the customer has arranged for the Lender to provide the Documentary Credit has paid the Lender s fee and has agreed to reimburse the Lender for any amount it pays out under the Documentary Credit B There are essentially two types of letters of credit which will be used by a Borrower for different purposes A documentary letter of credit is a method by which a Borrower arranges for a bank to pay a beneficiary if the beneficiary performs its obligations in an underlying transaction between the beneficiary and the Borrower All of the parties anticipate that the obligations will be performed and that the beneficiary will draw on the documentary letter of credit The beneficiary need only present the specified documents to the Bank showing that these underlying obligations have been fulfilled to receive payment For example the Borrower may wish to obtain manufactured goods from a supplier but will not want to pay the supplier until after delivery of the goods the supplier may be reluctant to manufacture and deliver the goods unless it is assured of 精选范本 payment The Borrower could in this situation arrange for a Lender to issue a documentary letter of credit to the supplier as beneficiary with a face amount equal to the purchase price for the goods The Documentary Credit would be drawn on by the supplier upon presentation to the Lender of documents showing that delivery had been made and the Borrower reimburses the Lender for the amount of the draw C The other type of letter of credit a standby letter of credit is a security device which unlike a documentary letter of credit is meant to be drawn on only if there is a default in the underlying transaction between the customer and the beneficiary In a modification of the above example a supplier who had an ongoing relationship with the Borrower might ordinarily be prepared to look to the Borrower rather than a bank for payment and to give the Borrower 30 day deferred payment terms but for an unusually large or valuable shipment might wish to have additional security for payment In this situation the Borrower would contract to pay the supplier itself but would in addition arrange for its bank to issue a letter of credit with the supplier as beneficiary which the supplier could draw on only if the Borrower breaches its payment contract In this case the beneficiary would draw on the letter of credit by presenting the bank with a certificate stating that the Borrower had breached its payment contract D The effect of the use of a Documentary Credit is that the Borrower receives credit i e investor funds or goods on deferred payment terms from its suppliers which it must later repay reimbursement of the Bank after a draw under the Documentary Credit and for which it must pay a fee 3 Other Provisions i Conditions Article 6 Article 6 sets out the conditions in particular the deliveries which must be met before the Closing Date and those which must be met before each subsequent Accommodation The delivery and registration of security documents and related counsel opinions are usually the most important closing conditions 精选范本 ii Representations and Warranties Article 7 Article 7 sets out the representations and warranties of the Borrower These representations and warranties must be true at the Closing Date and at the time of any subsequent Accommodation iii Covenants Article 8 Article 8 provides for the affirmative negative and financial covenants which the Borrower must adhere to during the time the credit facilities are outstanding The financial covenants in Section 8 3 are especially important as they relate to the strength of the Borrower s financial condition iv Events of Default Article 9 Article 9 deals with events of default and the Lenders remedies Because the Term Facility is advanced for a fixed term the Lender may not call this loan unless there has been an event of default specified in Section 9 2 Because the Operating Facility is a demand loan the Lenders may wish to call it at any time subject to common law principles It is very seldom that a loan with different facilities will have a demand aspect so language to this effect has not been included in the contract In each case essentially the only remedies provided for in the Agreement are the ability to terminate the Lender s obligations under the Agreement and the ability to declare the full amount outstanding to be immediately due and payable Other remedies such as the ability to realize on security are contained in the security documents which provide for realization procedures which may be exercised if there has been a default under the Credit Agreement Article 9 also provides that the remedies specified in the Agreement are in addition to any other remedies available at law v Miscellaneous Article 10 Article 10 contains various procedural and miscellaneous provisions including rights of set off for the Lender and the parties ability to assign benefits under the Agreement 3 5Guarantee CC06 Attached is a fairly typical form of guarantee by a third party of the obligations of a borrower 精选范本 Where PRC law applies Part 2 of the Security Law imposes a number of significant form and other requirements on guarantees Article 15 of the Security Law imposes certain form requirements stipulating that a guarantee contract should include the following content 1 the type and amount of the principal obligation guaranteed 2 the deadline for fulfilment of the obligation by the obligator 3 the form of guarantee 4 the scope of security governed by the guarantee if any 5 the term of guarantee and 6 other matters which the parties consider necessary to agree upon The Article goes on to state that guarantee contracts that do not contain all of the contents specified in the preceding paragraph may be amended This implies that contracts that do not meet the requirements of the Security Law are not void ab initio but may be amended subsequently by the parties The law also differentiates between general guarantees and guarantees with joint and several liability with different rights and rights of enforcement attaching to each Two Articles of the Security Law relating to guarantees deserve special consideration 1 Article 26 which provides that unless the parties have otherwise stipulated the term of the guarantee in the contract itself the guarantee will expire six months from the date of expiration of the term for performance of the principal obligation after which the guarantor shall be released from his guarantee liability unless the creditors file a suit or apply for arbitration within the prescribed time and 2 Article 28 which stipulates that where an obligation is secured by both a guarantee and by a mortgage against property the guarantor shall bear guarantee liability only for that part of the obligation which is not secured 3 6Comfort Letter CC07 The attached comfort letter would in all likelihood not be viewed as a binding legal agreement Other than the positive covenant it contains regarding divestiture of 精选范本 shareholdings it simply is an unenforceable statement of present policy of the parent or associated company to a borrower 3 7General Security Agreement Pledge CC08 The attached security agreement pledge is drafted to serve generally as a companion to a single lender loan agreement There are no representations warranties or covenants as it is contemplated that these would all be dealt with in the loan agreement Certain defined terms e g Loan Documents may appear both in the loan agreement and in this agreement It may be desirable to comprehensively define such terms in the principal loan agreement and adopt the definitions herein and in any other collateral document where such terms recur by cross reference to the principal loan agreement Pledges of personal as opposed to real property are relatively new in the PRC however they are now specifically provided for under the Security Law These types of charges consist of the following 1 A pledge of movable property defined in Article 63 as delivery to the creditor by the debtor or third party in possession of movable property as security for an obligation and 2 A pledge of rights which under Article 75 includes a pledge of i bills of exchange cheques promissory notes bonds certificates of deposit warehouse receipts bills of lading ii shares and share certificates that are transferable according to law iii trademarks patents and copyrights on property rights that are transferable according to law and iv other rights that may be pledged according to law Pledges are subject to certain form requirements set out in Article 65 which stipulates that the contract should include the following i the type and amount of the principal obligations secured ii the term for performance of the obligation by the debtor iii the aim quantity quality and state of the pledged property 精选范本 iv the scope of security covering the pledge v the time of transferring the pledged property and vi other matters which the parties consider necessary to agree upon As is the case with respect to guarantees pledge contracts which do not contain all of the contents specified in the Article may be amended A Pledges of Movables From a commercial standpoint the difficulty with a pledge of movables under the existing Security Law is that it requires that actual possession be transferred to the creditor Accordingly the lender would have the obligation to maintain the pledged asset whereas the borrower as pledgor would lose the right to use of that asset during the period of the pledge making this a somewhat commercially cumbersome type of security This is significantly different from other jurisdictions where transfers may be registered in a personal property registry such as is available under the U S Uniform Commercial Codes Note that for PRC businesses with subsidiaries abroad similar types of agreements may be used to attach the assets of those subsidiaries Pledges of this sort will rely on jurisdiction specific considerations and so the precedent pledge should be considered only as a starting point for conferring with local counsel in these instances B Pledges of Rights As noted above pledges of rights can cover a significant range of transferable rights which may be more useful to a lender in the PRC In the case of any transfer of rights other relevant laws should be considered such as the Negotiable Instruments Law in the case of transfers of bills of exchange cheques promissory notes or similar instruments and the Company Law in the case of any pledge of shares You should also be aware that certain assets which are not real pr