风险参与合作协议格式参考(baft标准版)模版.docx

MASTER PARTICIPATION AGREEMENT FOR TRADE TRANSACTIONS

Dated 201*-*-*

Between

[Party A]

And

China Guangfa Bank Co. Ltd

Contents

1 DEFINITIONS 4

2 TRANSACTIONS 7

3 OFFER 7

4 ACCEPTANCE 8

5 CONFLICT OF TERMS 8

6 PARTICIPATIONS AND FUNDING 8

7 DEFAULT UNDER THE PARTICIPATED TRANSACTION AND CLAWBACK 9

8 COMMISSION, FEES AND RECOVERIES 11

9 DEFAULT INTEREST 12

10 TAX AND PAYMENTS 12

11 FRAUD RISK 13

12 INFORMATION 13

13 VARIATION OF TRANSACTION 14

14 DOCUMENTARY DISCREPANCIES 14

15 GENERAL DEBT RESTRUCTURING 15

16 CONFIDENTIALITY 16

17 ASSIGNABILITY 17

18 ADDITIONAL DUTIES OF THE GRANTOR 17

19 REPRESENTATIONS AND WARRANTIES 18

20 COMMUNICATION 18

21 TERMINATION 19

22 MISCELLANEOUS 19

23 GOVERNING LAW AND JURISDICTION 21

Appendix I – OFFER AND ACCEPTANCE 22

Appendix II – UNFUNDED PARTICIPATIONS 24

Appendix III – FUNDED PARTICIPATIONS 25

This Agreement (the "Agreement") is made the [Day] day of [Month], [Year] between:

I. [Party A], a bank incorporated in [Country], with Head Office at [Address], and including any branch, subsidiary or affiliate as notified from time to time
and

II. China Guangfa Bank a bank incorporated in No. 713 Dongfeng Dong Road, Guangzhou, China. [Head Office][Registered Office] at []

Whereas:

If one Party offers to the other Party a participation (on a funded or unfunded basis) in respect of a Trade Transaction under Clause 3 and the other Party accepts such Offer under Clause 4, the provisions of this Agreement shall apply to such participation (a "Participation"). The Party offering the Participation will be called the "Grantor" and the Party taking the Participation will be called the "Participant".

Now it is hereby agreed as follows:

1 DEFINITIONS

For the purpose of this Agreement and any Participation Agreement, the following words and expressions shall have the following meanings:

"Acceptance" means acceptance by the Participant of an Offer in accordance with Clause 4;

"Beneficiary" means the person entitled to payment from the Grantor under a Participated Transaction;

"Business Day" means a day (not being a Saturday or a Sunday) (a) on which the dealings in deposits in the Relevant Currency are carried on in the London Interbank Market; and (b) on which banks are open for interbank transactions: (i) in [] and []; and (ii) in the financial centre of the Relevant Currency;

"Clause" means any clause of this Agreement;

"Credit Amount" means in relation to a Participated Transaction, the aggregate principal amount of the Grantor's exposure to the Recourse Parties, as specified in the relevant Participation Agreement;

"Default" means:

(a) any non-receipt of monies due to the Grantor by the Recourse Parties at the Due Date under a Participated Transaction; and

(b) the Grantor receiving monies from the Recourse Parties under a Participated Transaction which it is subsequently required to return to a Recourse Party or any third party by operation of mandatory rules of law.

"Defaulted Amount" means:

(a) a sum due to the Grantor by the Recourse Parties under a Participated Transaction which has not been received by the Grantor; and

(b) a sum received by the Grantor from the Recourse Parties under a Participated Transaction which the Grantor is subsequently required to return to a Recourse Party or any third party by operation of mandatory rules of law.

"Due Date" means any date on which payment to the Grantor by the Recourse Parties is due under a Participated Transaction;

"Funded Participation" means a Participation on a funded basis;

"General Debt Restructuring" means any rescheduling or reorganization of the indebtedness (or any class of the indebtedness) of a Recourse Party, including (without limitation) by way of novation, release payment, refinancing or assumption of obligations by third parties which satisfies the following test:

(a) the holders of more than half of the indebtedness (or of any class of the indebtedness, if applicable) participate in or agree to the same; and

(b) the same arises in relation to any actual or purported insolvency, payments difficulty, moratorium (unilaterally declared or otherwise), exchange control or transfer restrictions, withholding of foreign currency payments or similar circumstance.

"ISP" means International Standby Practices, ICC Publication No 590 and any subsequent revisions thereof;

"LIBOR" means, in relation to any period for which an interest rate is to be determined, the British Bankers' Association Interest Settlement Rate (where such is available for the Relevant Currency and period) appearing at or about 11:00 hours a.m. London time on the relevant Reuters screen page(s), or if the service ceases to be available, the Party claiming interest may specify another determination of the appropriate rate (acting reasonably after consultation with the other Party);

"Offer" means an offer made by the Grantor to the Participant in accordance with Clause 3;

"Participated Transaction" means the Transaction in which the Participant accepted a Participation in accordance with Clause 4;

"Participation Agreement" means the agreement between the Grantor and the Participant on the terms of the Offer, Acceptance and this Agreement (together with any amendments which the Grantor and Participant may agree in writing from time to time) in respect of a Participated Transaction;

"Participation Amount" means, in relation to a Participated Transaction, the aggregate principal liability assumed by the Participant in respect of such Participated Transaction as specified in the relevant Participation Agreement (but, for the avoidance of doubt, not including any costs or expenses for which the Participant is expressly liable under the terms of this Agreement);

"Participation Percentage" means, in respect of a Participated Transaction, the proportion that the Participation Amount bears to the Credit Amount (expressed as a percentage figure);

"Participation Portion" means:

(a) in relation to an Unfunded Participation, the amount equal to the Participation Percentage of the Defaulted Amount;

(b) in relation to a Funded Participation, the amount equal to the Participation Percentage of the Requested Amount;

"Party" means a party to this Agreement;

"Recourse Parties" means the persons to whom the Grantor has recourse in respect of a Participated Transaction, as specified in the relevant Offer;

"Reference Interest Rate" which will be applicable to Relevant Currencies other than those quoted by reference to LIBOR, means in relation to any period for which an interest rate is to be determined, the rate per annum determined by leading banks in the financial centre of the Relevant Currency appearing at or about 12:00 noon in that financial centre on the relevant Reuters screen page(s) (or other applicable page customarily used for such purposes in that financial centre as determined by the party claiming interest), for deposits in such currency for a duration comparable to that of the relevant period;

"Relevant Currency" means the currency in which the relevant Transaction is denominated, as specified in the relevant Offer;

"Relevant Dispute" has the meaning given to it in Clause 14.3;

"Request" has the meaning given to it in Clause 6.2.2;

"Request Notice Period" has the meaning given to it in Clause 6.2.3;

"Requested Amount" has the meaning given to it in Clause 6.2.2;

"Retention Share" means the percentage of the Credit Amount of the Participated Transaction retained by the Grantor at its own risk;

"Termination Date" means, in relation to a Participated Transaction, the earlier to occur of:
(a) 30 calendar days following the final Due Date
or
(b) the date the relevant Participation is terminated in accordance with its terms; or
(c) the date on which the Grantor’s liability (both current and contingent) under that Participated Transaction is reduced to zero.

"Transaction" means any of the transactions specified in Clause 2;

"Transaction Documents" means the documents which set out the material terms of the relevant Transaction;

"UCP" means UCP 600 and any subsequent revisions thereof;

"UCP 600" means the Uniform Customs and Practice for Documentary Credits, ICC Publication No. 600; and

"Unfunded Participation" means a Participation on an unfunded basis.

2 TRANSACTIONS

Each Party may from time to time desire to offer and the other Party to this Agreement may desire to accept and adopt Unfunded Participations and/or Funded Participations in the following Transactions:

2.1 letters of credit issued or confirmed by the Grantor, drafts accepted and deferred payment or negotiation obligations incurred by the Grantor under letters of credit;

2.2 standby letters of credit issued or confirmed by the Grantor;

2.3 purchases of claims by the Grantor under letters of credit, drafts accepted and deferred payment or negotiation obligations incurred by the Grantor under letters of credit;

2.4 refinancings of sight payments under letters of credit made by the Grantor;

2.5 discounts of drafts accepted and deferred payment or negotiation obligations under letters of credit or under banker's acceptances made by the Grantor;

2.6 bankers acceptances created by the Grantor;

2.7 bills of exchange and promissory notes purchased, avalised or accepted by the Grantor;

2.8 irrevocable reimbursement undertakings, or payment guarantees issued by the Grantor;

2.9 advance payment guarantees issued by the Grantor;

2.10 performance and bid bonds issued by the Grantor;

2.11 guarantees issued by a Recourse Party in favour of the Grantor; and

2.12 any other transaction the Grantor and the Participant may agree upon.

3 OFFER

3.1 If the Grantor wishes to offer the Participant a participation in a Transaction it shall send to the Participant an Offer in accordance with Clause 20 and substantially in the form specified in Appendix I.

3.2 If the Participant so requests, the Grantor will use reasonable endeavours to promptly provide to the Participant a copy of the Transaction Documents prior to the expiry date set out in the Offer.

4 ACCEPTANCE

4.1 Subject to Clause 4.4, a Participation Agreement shall be concluded upon the Grantor receiving the Participant's Acceptance to the Offer in accordance with Clause 20 and substantially in the form set out in Appendix I.

4.2 Upon conclusion of a Participation Agreement, the terms of the Offer (together with such amendments as may have been agreed in writing by each Party) shall, together with the terms of this Agreement, constitute the Participation Agreement.

4.3 Any purported modifications to the terms of the Offer by the Participant shall not constitute an Acceptance unless accepted in writing by the Grantor within three Business Days of receipt of such proposed modifications (and the expiry date set out in the Offer shall be disregarded in this respect). If the Grantor has not expressly accepted the suggested modifications within such period, the Offer shall become void and no Participation Agreement will be concluded.

4.4 If the Participant has not accepted an Offer before the expiry date set out in the Offer, the Offer shall lapse and no purported Acceptance by the Participant of such Offer after such date will be effective.

4.5 The Participant is under no obligation to accept any Offer.

5 CONFLICT OF TERMS

In the event of discrepancy or inconsistency between the agreed terms of the Offer and Acceptance and the terms of this Agreement, the terms of the Offer and Acceptance will prevail.

6 PARTICIPATIONS AND FUNDING

6.1 In relation to Unfunded Participations:

6.1.1 Following a Default, the Participant irrevocably and unconditionally undertakes to pay to the Grantor, irrespective of any objections or exceptions, within four Business Days of the Grantor’s first written demand (as specified in Clause 6.1.2), an amount equal to the relevant Participation Portion.

6.1.2 Each demand for payment to be delivered by the Grantor to the Participant under Clause 6.1.1 must be in the form specified in Appendix II hereto, no earlier than 10 calendar days from the date of the relevant Default but within 30 calendar days of the relevant Default (such 30 day period being the "Default Notice Period"). The Grantor’s right to demand payment in respect of a specific Default shall lapse at the end of the relevant Default Notice Period.

6.1.3 The Grantor may not make any demand for payment under this Clause 6.1 after the Termination Date (other than as referred to in Clause 10.5).

6.1.4 Payment by the Participant of the Participation Portion shall be in the Relevant Currency.

6.1.5 In the event that the Credit Amount under a Participated Transaction is reduced, the Participation Amount in respect of such Participated Transaction shall decrease by the Participation Percentage of such reduction and the Grantor shall promptly inform the Participant of any such reduction.

6.2 In relation to Funded Participations:

6.2.1 Provided that the Participant is in compliance with its payment obligations under this Agreement, whenever the Grantor applies an amount received under a Funded Participation towards a payment of principal or interest (including default interest) that relates to the relevant Participated Transaction, the Grantor shall promptly pay to the Participant the relevant Participation Percentage of that amount.

6.2.2 If a demand for payment is made by the Beneficiary upon the Grantor under the relevant Participated Transaction (a "Request", with the sum demanded from the Grantor being the "Requested Amount"), the Grantor shall be entitled to demand that the Participant pays to the Grantor the relevant Participation Portion. The Participant irrevocably and unconditionally undertakes to pay such sum to the Grantor, irrespective of any objections or exceptions, within four Business Days of the Grantor’s first written demand.

6.2.3 Each demand for payment by the Grantor under Clause 6.2.2