According to the different ways of participating banks to participate in syndicated loans, indirect syndicated loans can be divided into new indirect syndicated loans, indirect syndicated loans of transfer type and indirect syndicated loans of transfer type. The so-called new indirect syndicated loan refers to the indirect syndicated loan formed by the lead bank transferring part of its loan obligation under the loan contract signed with the borrower and the right to require the borrower to repay the corresponding loan principal and interest to the participating banks with the consent of the borrower, and the participating banks therefore issue loans to the borrower together with the lead bank.

in the loan contract signed between the lead bank and the borrower, it is the obligation of the lead bank to issue loans to the borrower, and the right of the lead bank to collect the loan principal and interest from the borrower. Therefore, in the process of establishing a new type of indirect syndicated loan, the legal nature of the transfer of the lead bank's obligation to issue loans under the loan contract and the right to collect the loan principal and interest from the participating banks belongs to the general transfer of the rights and obligations of the loan contract. According to relevant laws, the debtor needs to obtain the creditor's written consent when transferring its rights and obligations under the contract at the same time, otherwise the transfer behavior will not have legal effect, which is a big legal risk for both the transferor and the transferee. Therefore, in the process of establishing a new type of indirect syndicated loan, the lead bank should negotiate with the borrower and obtain the borrower's written consent before transferring the obligation to issue the loan and the right to collect the principal and interest of the loan to the participating banks.

In actual operation, the new indirect syndicated loan requires the written consent of the borrower, so the new indirect syndicated loan generally adopts the way that the lead bank, the participating bank and the borrower * * * sign a new syndicated loan contract, and the new syndicated loan contract signed by all parties * * * replaces the loan contract signed between the lead bank and the borrower. The loan conditions, loan term, loan interest rate and other related contents of the new syndicated loan contract may or may not be consistent with the original loan contract. In the new syndicated loan contract, both the lead bank and the participating banks shall independently undertake the obligation to issue loans to borrowers. In addition, the new indirect syndicated loan can also adopt the way that the lead bank signs the loan rights and obligations transfer agreement with the participating bank and obtains the written consent of the borrower, but this way is more complicated and prone to disputes, so it is rarely adopted.

Precautions

In the new type of indirect syndicated loan, there are some things that need to be paid attention to:

First, in the new type of indirect syndicated loan, the contents of the new syndicated loan contract signed by all parties are basically similar to those in the direct syndicated loan, and the participating banks also need to bear the obligation to issue loans to borrowers. Therefore, this kind of indirect syndicated loan is actually very close to the direct syndicated loan, so we can refer to the direct syndicated loan in the specific formation process.

Secondly, in a new type of indirect syndicated loan, a new syndicated loan contract signed between the lead bank, the participating bank and the borrower replaces the loan contract signed between the lead bank and the borrower, which may be regarded as debt renewal, that is, a new creditor-debtor relationship is formed between the lead bank, the participating bank and the borrower, and the creditor-debtor relationship under the original loan contract signed between the lead bank and the borrower is eliminated. In this case, If the original loan contract has a guarantee, the guarantee may be destroyed by the elimination of the debts under the original loan contract as the main debt, that is, the original guarantor will no longer bear the guarantee responsibility for the new syndicated loan contract. Therefore, in the new indirect syndicated loan, special attention should be paid to the guarantee problem. In order to avoid relevant legal risks, the original guarantor can be required to promise to continue to bear the guarantee responsibility for the new syndicated loan contract, or the borrower can be required to provide a new guarantee.

thirdly, in the new type of indirect syndicated loan, the lead bank may transfer part of the loan it has already granted to the borrower to the participating bank in addition to the obligation to issue the loan, which is legally an assignment of creditor's rights. Therefore, in the process of establishing the syndicated loan, attention should be paid not only to the new type of indirect syndicated loan, but also to the assignment type of indirect syndicated loan. The so-called indirect syndicated loan of assignment type refers to the indirect syndicated loan formed by the lead bank transferring part of the loan it has already issued under the loan contract signed with the borrower to the participating bank, and the participating bank and the lead bank act as lenders together.

after the lead bank issues the loan to the borrower in accordance with the agreement, it is the right of the lead bank to require the borrower to repay the loan principal and interest in accordance with the agreement. Therefore, in the process of establishing the indirect syndicated loan of concession type, the transfer of the loan already issued by the lead bank to the participating banks under the loan contract belongs to the transfer of the loan contract rights in legal nature. According to the provisions of relevant laws, the creditor does not need to obtain the debtor's consent to transfer its rights under the contract, but it should inform the debtor, otherwise the transfer of creditor's rights will not have legal effect on the debtor, and the debtor will still have the legal consequences of debt extinction when performing its debts to the transferor, which is undoubtedly a legal risk for the transferee. Therefore, in the process of establishing the indirect syndicated loan, when the lead bank transfers the loans already issued to the participating banks, The borrower shall be informed in writing in time. In actual operation, the lead bank and the participating bank generally sign the relevant syndicated loan contract with the borrower, or the lead bank and the participating bank can sign the loan transfer contract and notify the borrower in writing.

related matters

in the indirect syndicated loan, there are some matters that need to be paid attention to:

firstly, not all creditor's rights can be transferred. In the original loan contract signed between the lead bank and the borrower, it may be agreed that both parties shall not transfer their rights and obligations or similar contents under the loan contract. This agreement is a prohibition on transfer. If such an agreement exists in the original loan contract, only notifying the borrower of the fact of the transfer of creditor's rights will not produce the legal effect of the transfer of creditor's rights, but only after obtaining the written consent of the borrower.

Secondly, the indirect syndicated loan of concession type also involves the issue of notifying the debtor. Article 8 of the Contract Law stipulates: "If the creditor transfers its rights, it shall notify the debtor. Without notice, the transfer is not effective for the debtor ",and the indirect syndicated loan of assignment type belongs to the category of creditor's rights transfer stipulated in the Contract Law, so the debtor should be notified according to the provisions of the Contract Law.

It should be noted that it is not clear whether the notice object stipulated in the Contract Law is limited to the principal debtor, or whether it includes not only the principal debtor, but also the collateral debtors such as mortgagor, pledger and guarantor. In addition, the relevant provisions on mortgage and pledge promulgated by the relevant competent authorities contain the contents that mortgage and pledge should be registered for change under similar circumstances, although the legality, rationality and legal effect of such provisions are controversial. However, in order to avoid relevant legal risks, in the process of establishing indirect syndicated loans, all parties concerned should promptly notify the principal debtor and the subordinate debtor, and if mortgage registration and pledge registration are involved, they should also go through relevant change procedures in time.

Third, in the indirect syndicated loan of assignment type, the lead bank can only transfer the loan it has already issued to the borrower, that is, the lead bank can only transfer its creditor's rights to the borrower, but not any debts it bears to the borrower, otherwise it will constitute a general transfer of creditor's rights and debts. According to relevant laws and regulations, the general transfer of creditor's rights and debts should obtain the written consent of the debtor, otherwise this transfer will not have legal effect. Therefore, the syndicated loan is actually equivalent to a mixture of a new type of indirect syndicated loan and a concession type of indirect syndicated loan. Therefore, in the process of establishing a syndicated loan, attention should be paid to the needs of the new type of indirect syndicated loan in addition to the needs of the concession type of indirect syndicated loan.

fourthly, in the indirect syndicated loan, the lead bank only transfers its creditor's rights to the borrower. According to the relevant laws, if the secured principal creditor's rights are transferred, the secured creditor's rights are transferred accordingly. Therefore, in the indirect syndicated loan, the validity of the guarantee contract is not involved, but for the sake of prudence, the guarantee contract can be modified accordingly. The so-called indirect syndicated loan in the form of reloan refers to an indirect syndicated loan formed by the participating bank providing a certain amount of money to the lead bank, and the lead bank, as the lender, will distribute the money together with the money of the lead bank as a loan to the borrower, and the lead bank will pay the loan principal and interest to the participating bank within the scope of the borrower's repayment of the loan principal and interest.

Features

Compared with the newer indirect syndicated loans and indirect syndicated loans of concession type, the indirect syndicated loan of reloan type is a special kind of indirect syndicated loan, which is mainly reflected in the following aspects:

First, there is no contract between the participating banks and the borrowers, so there is no direct creditor-debtor relationship between the participating banks and the borrowers. Participating banks also have no rights to the loan contract signed between the lead bank and the borrower, and participating banks have no right to claim rights from the borrower. Correspondingly, the borrower only has a creditor-debtor relationship with the lead bank, and the borrower can only ask the lead bank to issue loans and repay the principal and interest of the loan.

Secondly, although there is a creditor-debtor relationship between the lead bank and the participating banks in indirect syndicated loans, the premise for the lead bank to pay the loan principal and interest to the participating banks is that the borrower has repaid the loan principal and interest, that is, the lead bank has the obligation to repay the loan principal and interest to the participating banks within the scope of the borrower's repayment of the loan principal and interest. If the borrower fails to repay the loan principal and interest in full on time, the lead bank has the right to refuse to pay the loan principal and interest to the participating banks without taking any responsibility (this feature is similar to entrusted loans);

thirdly, in the indirect syndicated loan with sub-loan, there is no contract between the participating bank and the guarantor, so there is no direct creditor-debtor relationship between the participating bank and the guarantor, and the participating bank does not have any rights to the loan contract signed between the lead bank and the guarantor, and the participating bank has no right to claim rights from the guarantor. Correspondingly, the guarantor only signs a secured contract with the lead bank and there is a creditor-debtor relationship, and the guarantor only assumes the guarantee responsibility to the lead bank, but obtains it by exercising the guarantee right.

fourthly, in the indirect syndicated loan with sub-loan, the related matters such as the formation of syndicates by the lead bank and the participating banks are internal actions between the lead bank and the participating banks, and generally there is no need to consult or inform the borrower, as long as the lead bank and the participating banks reach an agreement;

Fifthly, in the indirect syndicated loan with sub-loan, whether the participating banks participate in the syndicated loan depends in part on the introduction of the borrower and the loan by the lead bank. Therefore, the lead bank has the obligation to provide the participating banks with the relevant information of the borrower and the loan when transferring the loan obligation to the participating banks, including truthfully providing it and not misleading or concealing it. If the lead bank violates this obligation, it will lead to the compensation liability for the participating banks. In the actual operation process, the lead bank can exclude or mitigate this by means of self-evaluation and independent responsibility of the member banks.

it can be seen that there are actually two independent creditor-debtor relationships in the indirect syndicated loan with sub-loan: the creditor-debtor relationship between the participating bank and the lead bank, and the creditor-debtor relationship between the lead bank and the borrower. Although these two different creditor-debtor relationships are related in fact, they are completely independent in law, and all parties enjoy rights and assume obligations according to the relevant contracts.