2020-04-23 | 20/POJK.04/2020Added · Updated
This regulation mandates that trustees must conduct due diligence and draft notarial trust contracts for all debt and sukuk issuances, specifying mandatory clauses regarding trustee powers, payment agent duties, collateral, seniority, and buyback procedures. It establishes strict requirements for trustee independence, conflict of interest management, and liability for negligence, while defining the specific information and procedural steps issuers must follow for bond buybacks and amortization.
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FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA
COPY
FINANCIAL SERVICES AUTHORITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 20 /POJK.04/2020
CONCERNING
DEBT AND/OR SUKUK TRUST CONTRACTS
BY THE GRACE OF GOD THE ALMIGHTY
THE COMMISSIONERS OF THE FINANCIAL SERVICES AUTHORITY
Considering:
a. that in the issuance of debt and/or sukuk by issuers, the role of the trustee representing the interests of the holders of debt and/or sukuk is very important, so it is necessary to adjust regulations regarding trust contracts to strengthen the independence, objectivity, and professionalism of trustees in carrying out their duties; b. that based on the considerations as referred to in letter a, it is necessary to establish a Financial Services Authority Regulation concerning Debt and/or Sukuk Trust Contracts;
Recalling:
DECIDING:
Establishing: FINANCIAL SERVICES AUTHORITY REGULATION CONCERNING DEBT AND/OR SUKUK TRUST CONTRACTS.
CHAPTER I
GENERAL PROVISIONS
Article 1
In this Financial Services Authority Regulation, the following terms are defined as:
Article 2
The Trustee is required to create a Trust Contract in every issuance of debt and/or Sukuk.
Article 3
The Trustee and the Issuer are required to implement the entire contents of the Trust Contract as referred to in Article 2.
Article 4
The Trust Contract for debt and/or Sukuk securities as referred to in Article 2 must be made notarially before a Notary.
CHAPTER II
TRUSTEE OBLIGATIONS BEFORE SIGNING THE DEBT AND/OR SUKUK TRUST CONTRACT
Article 5
(1) The Trustee is required to conduct due diligence on the Issuer before signing the Trust Contract, at least:
a. review of the Issuer, at least:
CHAPTER III
TRUSTEE OBLIGATIONS TOWARDS THE DEBT AND/OR SUKUK TRUST CONTRACT
Article 6
(1) The Trustee is required to carry out duties, functions, and obligations as established in the Trust Contract, at least:
a. monitor the development of the Issuer's activity management based on data and/or information obtained directly or indirectly; b. supervise and monitor the implementation of the Issuer's obligations based on the Trust Contract and other documents related to the Trust Contract;
c. implement the results of the general meeting of holders of debt and/or Sukuk securities according to their responsibilities;
d. supervise, inspect, and administer assets that serve as collateral for the payment of obligations to holders of debt and/or Sukuk securities, if there are assets serving as collateral for the payment of obligations to holders of debt and/or Sukuk securities; e. monitor payments made by the Issuer or Payment Agent to holders of debt and/or Sukuk securities; f. take necessary actions if there is a change in the rating results of the Effects; g. take necessary actions if there is a change in the value of collateral, if there is a change in the value of collateral; and h. take necessary actions in accordance with the provisions in the Trust Contract. (2) In the event that the Trustee is negligent in carrying out its duties as referred to in Article 6 paragraph (1) and provisions of legislation, the Trustee is responsible for providing compensation to holders of debt and/or Sukuk securities for losses due to such negligence.
CHAPTER IV
TRUST CONTRACT FOR DEBT AND/OR SUKUK SECURITIES First Section Clauses in the Trust Contract for Debt and/or Sukuk Securities
Article 7
To protect and represent the rights of holders of debt and/or Sukuk securities, the Trustee is required to create a Trust Contract containing at least:
a. identity of the parties; b. authority of the Trustee;
c. appointment, replacement, and termination of the Trustee's duties;
d. restrictions on the Issuer; e. duties and obligations of the Payment Agent; f. principal amount and/or principal value, maturity, and interest, profit sharing, margin, or remuneration; g. collateral; h. priority rights or seniority of debt and/or Sukuk securities;
i. amortization of debt and/or Sukuk securities;
j. repurchase of debt and/or Sukuk securities; k. rating of debt and/or Sukuk securities;
l. debt and/or Sukuk securities in denominations other than the Indonesian Rupiah;
m. use of funds; n. fund allocation for payment of principal amount or principal value or interest, profit sharing, margin, or remuneration; o. general meeting of holders of debt and/or Sukuk securities; p. sanctions; q. default or default conditions; and r. force majeure conditions.
Second Section
Parties and Provisions Regarding Parties in the Trust Contract Paragraph 1 Identity of the Parties
Article 8
The Trust Contract must contain information on the legal identity of the parties who are authorized to represent and act on behalf of and for the name of the Issuer and the Trustee.
Paragraph 2
Authority of the Trustee
Article 9
(1) The Trust Contract must contain provisions at least regarding the authority of the Trustee to:
a. request documents and information required from the Issuer in the context of carrying out monitoring duties on the development of the Issuer's management and supervision of the implementation of obligations that must be fulfilled by the Issuer based on the Trust Contract; b. hold power of attorney to represent holders of debt and/or Sukuk securities in taking legal actions related to the interests of holders of debt and/or Sukuk securities, including filing lawsuits for the rights of holders of debt and/or Sukuk securities both inside and outside of court without requiring a special power of attorney from the holders of debt and/or Sukuk securities in question;
c. appoint capital market supporting professions to assist in conducting examinations if there is a difference in understanding regarding default conditions; and
d. reject requests to hold a general meeting of holders of debt and/or Sukuk securities submitted by holders of debt and/or Sukuk securities or the Issuer in accordance with the Trust Contract by submitting written notification of rejection and reasons for rejection. (2) All costs arising from the appointment of capital market supporting professions as referred to in paragraph (1) letter c shall be borne by the Issuer.
Paragraph 3
Appointment, Replacement, and Termination of Trustee Duties
Article 10
(1) The Trust Contract must contain provisions regarding the appointment, replacement, and termination of the Trustee's duties containing at least:
a. the initial appointment of the Trustee is conducted by the Issuer; b. replacement of the Trustee is done for reasons:
Paragraph 4
Restrictions on the Issuer
Article 11
The Trust Contract must contain provisions regarding financial restrictions and other restrictions on the Issuer clearly.
Paragraph 5
Duties and Obligations of the Payment Agent
Article 12
The Trust Contract must contain provisions regarding the obligations of the Payment Agent at least:
a. notifying the amount of funds that must be paid by the Issuer for the payment of interest, profit sharing, margin, or remuneration and/or the principal amount or principal value of debt and/or Sukuk securities to the Issuer with a copy to the Trustee according to the time agreed upon in the Trust Contract; b. carrying out the payment of interest, profit sharing, margin, or remuneration and/or the principal amount or principal value of debt and/or Sukuk securities on the date of payment of interest, profit sharing, margin, or remuneration and/or the date of repayment of the principal amount or principal value according to the time agreed upon in the Trust Contract;
c. being fully responsible for the implementation of the payment of interest, profit sharing, margin, or remuneration and/or the principal amount or principal value of debt and/or Sukuk securities according to the time agreed upon in the Trust Contract; and
d. submitting a written report to the Trustee regarding the fulfillment of the Issuer's obligations in accordance with the Trust Contract no later than 2 (two) working days after each payment is made.
Third Section
Provisions Regarding Debt and/or Sukuk Securities Paragraph 1 Principal Amount or Principal Value, Maturity, and Interest, Profit Sharing, Margin, or Remuneration
Article 13
The Trust Contract must contain provisions on the principal amount or principal value, maturity, and interest, profit sharing, margin, or remuneration of debt and/or Sukuk securities at least:
a. the amount of the principal amount or principal value, in Indonesian Rupiah denomination or other currencies; b. the unit value for book transfer;
c. the maturity of the principal amount or principal value covering the repayment schedule, the amount to be paid by the Issuer on the payment date, and the payment procedure;
d. the nature and amount of the interest rate, profit sharing, margin, or remuneration; e. the schedule and period for payment of interest, profit sharing, margin, or remuneration; f. the calculation of interest, profit sharing, margin, or remuneration; and g. the procedure for payment of interest, profit sharing, margin, or remuneration.
Paragraph 2
Collateral
Article 14
(1) In the event that debt and/or Sukuk securities are guaranteed with the Issuer's assets, the Trust Contract must state:
a. the type of collateral object; b. the value of the collateral object; and
c. the ownership status.
(2) In the event that debt and/or Sukuk securities are guaranteed with other forms of guarantee, the Trust Contract must state:
a. details of the collateral object and/or identity of the guarantor; b. identity of the party whose assets are pledged;
c. the guarantor has bound themselves to guarantee the Issuer's obligations in the event the Issuer cannot fulfill its obligations;
d. the position of holders of debt and/or Sukuk securities against other creditors of the Issuer who hold mortgage rights over the same collateral object; and e. the value and/or percentage of the guarantee from the principal amount or principal value. (3) The encumbrance of collateral over the collateral object must be implemented in accordance with legislation provisions. (4) Supporting documents related to the guarantee are an inseparable part of the Trust Contract.
Paragraph 3
Priority Rights of Debt and/or Sukuk Securities
Article 15
In the event that debt and/or Sukuk securities have priority rights or seniority compared to other debts and/or financing of the Issuer that are not yet paid off and/or additional debts and/or financing that can be created by the Issuer in the future, the Trust Contract must state:
a. the level of priority or seniority of debt and/or Sukuk securities; b. the total amount of debts and/or financing that have priority rights or seniority and limitations on the issuance of additional debts and/or financing with priority rights or seniority; and
c. limitations on the rights owned by debt and/or Sukuk securities due to the issuance of Securities of a different type of Security.
Paragraph 4
Amortization of Debt and/or Sukuk Securities
Article 16
In the event that the Issuer conducts amortization, the Trust Contract must contain the following provisions:
a. if amortization is conducted on one type of debt and/or Sukuk securities, holders of debt and/or Sukuk securities still have voting rights and the right to attend the general meeting of holders of debt and/or Sukuk securities proportionally equivalent to the debt and/or Sukuk securities still outstanding for that Security; and b. if amortization is conducted periodically on one or more types of debt and/or Sukuk securities based on the Trust Contract and has the same collateral, holders of debt and/or Sukuk securities still have voting rights and the right to attend the general meeting of holders of debt and/or Sukuk securities in question proportionally equivalent to the debt and/or Sukuk securities still outstanding for that Security.
Paragraph 5
Repurchase of Debt and/or Sukuk Securities
Article 17
(1) In the event that the Issuer conducts a repurchase of debt and/or Sukuk securities, the Trust Contract must include provisions that:
a. the repurchase of debt and/or Sukuk securities is intended for payoff or stored to be sold again at market price; b. the implementation of the repurchase of debt and/or Sukuk securities is conducted through a Securities Exchange or outside the Securities Exchange;
c. the repurchase of debt and/or Sukuk securities can only be conducted one year after the allotment date;
d. the repurchase of debt and/or Sukuk securities cannot be conducted if it causes the Issuer to be unable to meet the provisions in the Trust Contract; e. the repurchase of debt and/or Sukuk securities cannot be conducted if the Issuer commits negligence as referred to in the Trust Contract; f. the repurchase of debt and/or Sukuk securities can only be conducted by the Issuer to parties that are not affiliated; g. the plan to repurchase debt and/or Sukuk securities must be reported to the Financial Services Authority by the Issuer no later than 2 (two) working days before the announcement of the plan to repurchase debt and/or Sukuk securities; h. the repurchase of debt and/or Sukuk securities can be conducted after the announcement of the plan to repurchase debt and/or Sukuk securities;
i. the plan to repurchase debt and/or Sukuk securities as referred to in letter g and the announcement as referred to in letter h must contain at least information:
o. the mandatory repurchase must be conducted by considering the economic interests of the Issuer regarding the repurchase if there is more than one Unsecured Debt Security and/or Sukuk;
p. the repurchase must consider the economic interests of the Issuer regarding the repurchase of the Unsecured Debt Security and/or Sukuk if there is a guarantee over all Unsecured Debt Securities and/or Sukuk; and
q. the repurchase of Unsecured Debt Securities and/or Sukuk by the Issuer results in:
the extinguishment of all rights attached to the Unsecured Debt Security and/or Sukuk that are repurchased, including the right to attend the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, voting rights, and the right to receive interest, profit shares, margins, or service fees as well as other benefits from the Unsecured Debt Securities and/or Sukuk that are repurchased if intended for settlement; or
the temporary suspension of all rights attached to the Unsecured Debt Security and/or Sukuk that are repurchased, including the right to attend the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, voting rights, and the right to receive interest, profit shares, margins, or service fees as well as other benefits from the Unsecured Debt Securities and/or Sukuk that are repurchased, if intended to be held and resold.
(2) The provisions as referred to in paragraph (1) letter e are exempted if they have obtained approval from the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk.
(3) The provisions as referred to in paragraph (1) letter f are exempted for Affiliates arising from ownership or capital participation by the government.
(4) The announcement of the plan to repurchase Unsecured Debt Securities and/or Sukuk as referred to in paragraph (1) letters g and h must be conducted at the latest 2 (two) days before the date the offer for repurchase begins, with the following provisions:
a. for Issuers whose shares are listed on a stock exchange, at least through:
the Issuer's website in Indonesian and a foreign language, with the provision that the foreign language used is at least English; and
the stock exchange's website or 1 (one) daily newspaper in Indonesian with national circulation.
b. for Issuers whose shares are not listed on a stock exchange, at least through:
the Issuer's website in Indonesian and a foreign language, with the provision that the foreign language used is at least English; and
1 (one) daily newspaper in Indonesian with national circulation.
(5) The information that must be reported as referred to in paragraph (1) letter m must include at least:
a. the amount of Unsecured Debt Securities and/or Sukuk that have been purchased by the Issuer;
b. the details of the amount of Unsecured Debt Securities and/or Sukuk that have been repurchased for settlement or held for resale;
c. the repurchase price that has occurred; and
d. the amount of funds used for the repurchase of Unsecured Debt Securities and/or Sukuk.
Paragraph 6
Credit Rating of Debt Securities and/or Sukuk
Article 18
(1) The Trust Deed must include the credit rating result of the Unsecured Debt Security and/or Sukuk.
(2) In the event that there is more than one credit rating for the Unsecured Debt Security and/or Sukuk, each of these credit rating results must be included in the Trust Deed.
Paragraph 7
Debt Securities and/or Sukuk in Denominations Other than the Rupiah Currency
Article 19
In the event that the Issuer issues Unsecured Debt Securities and/or Sukuk in a currency denomination other than the Rupiah, the Trust Deed must include at least the following provisions:
a. the amount, value, and tenor as well as its equivalent value in Rupiah at the time the Unsecured Debt Security and/or Sukuk is offered;
b. the risks faced related to exchange rate differences; and
c. the presence or absence of hedging instruments.
Part Four
Use and Reserve of Funds
Paragraph 1
Use of Funds
Article 20
The Trust Deed must contain the use of funds, changes in the use of funds, and the temporary placement of funds from the Results of the Public Offering of Unsecured Debt Securities and/or Sukuk by including:
a. a description of the plan for the use of funds from the Public Offering of Unsecured Debt Securities and/or Sukuk;
b. provisions regarding the plan and reasons for changing the use of funds from the Public Offering of Unsecured Debt Securities and/or Sukuk must be submitted to the Financial Services Authority and obtain approval from the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk; and
c. provisions regarding the temporary placement of funds from the Public Offering of Unsecured Debt Securities and/or Sukuk must consider safety and liquidity and can provide reasonable financial benefits for the Issuer.
Paragraph 2
Reserve of Funds for Payment of Principal Amount or Face Value or Interest, Profit Share, Margin, or Service Fee
Article 21
In the event that the Issuer makes a reserve of funds for the payment of the principal amount or face value or interest, profit share, margin, or service fee, the Trust Deed must state at least the following provisions:
a. the amount to be reserved and/or the ratio of that amount to the principal amount or face value or interest, profit share, margin, or service fee;
b. the period and duration of the reserve; and
c. the storage, placement, and utilization of the reserved funds with the following provisions:
the storage, placement, and use of the reserved funds must be under the supervision and based on written approval from the Trustee;
proof of storage and placement of the reserved funds must be submitted by the Issuer to the Trustee; and
the Issuer must separate these funds from other assets and the amount reserved must be stated in the financial statements.
Part Five
General Meeting of Holders of Debt Securities and/or Sukuk
Article 22
The Trust Deed must contain provisions regarding the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk at least:
a. the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is held for the purpose of:
making decisions related to proposals from the Issuer or Holders of Unsecured Debt Securities and/or Sukuk regarding changes in tenor, principal amount or face value, interest rate, changes in payment methods or periods for interest, profit share, margin, service fee, guarantee, or reserve of funds for settlement, and/or other provisions in the Trust Deed;
notifying the Issuer and/or Trustee, providing guidance to the Trustee, and/or approving a grace period for a default based on the Trust Deed and its consequences, or taking other actions related to the default;
dismissing the Trustee and appointing a replacement Trustee in accordance with the provisions of the Trust Deed;
taking actions authorized by or on behalf of the Holders of Unsecured Debt Securities and/or Sukuk, including in determining potential defaults that may cause a default as referred to in the Trust Deed and these regulations; and
taking other actions proposed by the Trustee that are not authorized or not included in the Trust Deed or based on statutory provisions;
b. the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be convened upon request by:
Holders of Unsecured Debt Securities and/or Sukuk, either individually or jointly, representing at least more than 20% (twenty percent) of the amount of Unsecured Debt Securities and/or Sukuk that have not been settled, excluding Unsecured Debt Securities and/or Sukuk owned by the Issuer and/or its Affiliates, except if the Affiliate arises from ownership or capital participation by the government;
the Issuer;
the Trustee; or
the Financial Services Authority;
c. the request as referred to in letter b numbers 1, 2, and 4 must be submitted in writing to the Trustee and at the latest 30 (thirty) days after the date of receipt of the request letter, the Trustee must issue a call for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
d. in the event that the Trustee rejects the request from the Holder of Unsecured Debt Securities and/or Sukuk or the Issuer to convene a General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, the Trustee must notify the reason for the rejection in writing to the petitioner, with a copy to the Financial Services Authority, at the latest 14 (fourteen) days after the receipt of the request letter;
e. the announcement, call, and time of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, with the following provisions:
the announcement of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be conducted through one daily newspaper in Indonesian with national circulation, within a period of at the latest 14 (fourteen) days before the call;
the call for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is conducted at the latest 14 (fourteen) days before the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, through at least one daily newspaper in Indonesian with national circulation;
the call for the second or third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is conducted at the latest 7 (seven) days before the second or third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk and is accompanied by information that the previous General Meeting of Holders of Unsecured Debt Securities and/or Sukuk was held but did not achieve a quorum;
the call must contain the plan for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk and disclose information at least:
a) the date, place, and time of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
b) the agenda of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
c) the party that proposed the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
d) the Holders of Unsecured Debt Securities and/or Sukuk who are entitled to attend and have voting rights in the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk; and
e) the quorum required for the convening and decision-making of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
f. the procedure for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, with the following provisions:
Holders of Unsecured Debt Securities and/or Sukuk, either individually or represented by a power of attorney, are entitled to attend the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk and exercise their voting rights in accordance with the amount of Unsecured Debt Securities and/or Sukuk they own;
Unsecured Debt Securities and/or Sukuk owned by the Issuer and/or its Affiliates do not have voting rights and are not counted in the attendance quorum, except if the Affiliate arises from ownership or capital participation by the government;
before the implementation of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, the Issuer is obligated to submit a list of Holders of Unsecured Debt Securities and/or Sukuk that are its Affiliates to the Trustee;
the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held at the Issuer's location or another location agreed upon between the Issuer and the Trustee;
the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is chaired by the Trustee;
the Trustee must prepare the agenda for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, including the materials for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk, and appoint a Notary to make the minutes of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the replacement of the Trustee is requested by the Issuer or the Holder of Unsecured Debt Securities and/or Sukuk, the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is chaired by the Issuer or the representative of the Holder of Unsecured Debt Securities and/or Sukuk who requested the convening of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk; and
the Issuer or the Holder of Unsecured Debt Securities and/or Sukuk who requested the convening of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk as referred to in number 7 is obligated to prepare the agenda for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk and the materials for the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
g. Quorum and Decision-Making, with the following provisions:
a) if the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is requested by the Issuer, it must be convened with the following provisions:
attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the attendance quorum as referred to in number 1) is not met, a second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held;
the second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the attendance quorum as referred to in number 3) is not met, a third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held; and
the third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
b) if the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is requested by the Holder of Unsecured Debt Securities and/or Sukuk or the Trustee, it must be convened with the following provisions:
attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 2/3 (two-thirds) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the attendance quorum as referred to in number 1) is not met, a second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held;
the second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 2/3 (two-thirds) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the attendance quorum as referred to in number 3) is not met, a third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held; and
the third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 2/3 (two-thirds) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk; and
c) if the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk is requested by the Financial Services Authority, it must be convened with the following provisions:
attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the attendance quorum as referred to in number 1) is not met, a second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held;
the second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
in the event that the attendance quorum as referred to in number 3) is not met, a third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held; and
the third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 1/2 (one-half) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk; and
a) attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
b) in the event that the attendance quorum as referred to in letter a) is not met, a second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held;
c) the second General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions if approved by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk present at the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk;
d) in the event that the attendance quorum as referred to in letter c) is not met, a third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be held;
e) the third General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented by at least 3/4 (three-quarters) of the amount of Unsecured Debt Securities and/or Sukuk that are still unsettled and entitled to make valid and binding decisions based on the majority vote;
f) in the event that the attendance quorum as referred to in letter e) is not met, a fourth General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held;
g) the fourth General Meeting of Holders of Unsecured Debt Securities and/or Sukuk may be held if attended by Holders of Unsecured Debt Securities and/or Sukuk or represented who are still unsettled and entitled to make valid and binding decisions in the attendance quorum and decision quorum set by the Financial Services Authority upon the request of the Trustee; and
h. The announcement, call, and time of the fourth General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must meet the provisions as referred to in letter e;
h. The costs of convening the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk are borne by the Issuer and must be paid to the Trustee at the latest 7 (seven) working days after the Issuer receives the cost request from the Trustee;
i. The convening of the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk must be recorded in minutes by a Notary; and
j. The Issuer, Trustee, and Holders of Unsecured Debt Securities and/or Sukuk must comply with the decisions taken in the General Meeting of Holders of Unsecured Debt Securities and/or Sukuk.
Part Six
Sanctions, Default Conditions, and Force Majeure
Paragraph 1
Sanctions
Article 23
The Trust Deed must regulate provisions regarding sanctions related to the non-fulfillment of obligations in the Trust Deed of the Unsecured Debt Securities and/or Sukuk issued clearly.
Paragraph 2
Default Conditions
Article 24
(1) The Trust Deed must contain provisions regarding conditions that may cause the Issuer to be declared in default if the Issuer does not execute or comply with the provisions in the Trust Deed, including:
a. the obligation to pay the principal amount or face value and/or interest, profit share, margin, or service fee of the Unsecured Debt Security and/or Sukuk at maturity;
b. facts regarding the guarantee, condition, or status of the Issuer and its management do not match the information and details provided by the Issuer;
c. the condition of the Issuer declared in default in relation to a credit agreement by one or more of its creditors (cross default);
d. the existence of a deferral of debt payment obligations as referred to in statutory regulations (moratorium); and
e. other obligations contained in the Trust Deed.
(2) The Trust Deed must contain clear provisions regarding default declarations.
(3) The Trust Deed must contain clear provisions regarding the resolution of default conditions or when the Issuer is declared in default.
Paragraph 3
Force Majeure
Article 25
The Trust Deed must contain provisions regarding force majeure.
CHAPTER V
OTHER PROVISIONS
Article 26
In the event that the Trust Deed is made in the context of a Public Offering of Sukuk, in addition to meeting the provisions in this Financial Services Authority Regulation, the Trust Deed must meet the provisions regarding Sukuk trust agreements as referred to in the Financial Services Authority Regulation regarding the issuance and requirements of Sukuk.
CHAPTER VI
ADMINISTRATIVE SANCTIONS
Article 27
(1) Any party that violates the provisions as referred to in Article 2, Article 3, Article 4, Article 5, Article 6, Article 7, Article 8, Article 9 paragraph (1), Article 10, Article 11, Article 12, Article 13, Article 14, Article 15, Article 16, Article 17, Article 18, Article 19, Article 20, Article 21, Article 22, Article 23, Article 24, Article 25, and Article 26 shall be subject to administrative sanctions.
(2) Sanctions as referred to in paragraph (1) shall also be imposed on parties causing the occurrence of violations as referred to in paragraph (1).
(3) Sanctions as referred to in paragraph (1) and paragraph (2) shall be imposed by the Financial Services Authority.
(4) Administrative sanctions as referred to in paragraph (1) consist of:
a. written warnings; b. fines, namely the obligation to pay a certain amount of money;
c. business activity restrictions;
d. business activity suspension; e. business license revocation; f. approval cancellation; and/or g. registration cancellation.
(5) Administrative sanctions as referred to in paragraph (4) letters b, c, d, e, f, or g may be imposed with or without prior imposition of administrative sanctions in the form of written warnings as referred to in paragraph (4) letter a.
(6) Administrative sanctions in the form of fines as referred to in paragraph (4) letter b may be imposed separately or concurrently with the imposition of administrative sanctions as referred to in paragraph (4) letters c, d, e, f, or g.
(7) The procedure for imposing sanctions as referred to in paragraph (3) shall be carried out in accordance with statutory regulations.
Article 28
In addition to administrative sanctions as referred to in Article 27 paragraph (4), the Financial Services Authority may take specific actions against any party that violates the provisions of this Financial Services Authority Regulation.
Article 29
The Financial Services Authority may announce the imposition of administrative sanctions as referred to in Article 27 paragraph (4) and specific actions as referred to in Article 28 to the public.
CHAPTER VII
TRANSITIONAL PROVISIONS
Article 30
Trust Deeds made by Trustees and submitted to the Financial Services Authority in the context of Registration Statements for debt securities and/or Sukuk before this Financial Services Authority Regulation takes effect shall continue to follow the provisions regulated in the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number Kep-412/BL/2010 concerning General Provisions and Trust Deeds for Debt Securities along with Regulation Number VI.C.4 which is its appendix.
CHAPTER VIII
CLOSING PROVISIONS
Article 31
Upon the taking effect of this Financial Services Authority Regulation, the Decision of the Chairman of the Capital Market Supervisory Board and Financial Institutions Number Kep-412/BL/2010 concerning General Provisions and Trust Deeds for Debt Securities along with Regulation Number VI.C.4 which is its appendix, is repealed and declared invalid.
This copy is consistent with the original
Deputy Director of Legal Consultation and
Banking Regulation Harmonization 1
Legal Directorate 1
Legal Department signed
Wiwit Puspasari
Article 32
This Financial Services Authority Regulation takes effect on the date of its enactment.
To ensure that everyone knows it, ordering the enactment of this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia.
Established in Jakarta on 22 April 2020
CHAIRMAN OF THE COMMISSIONERS
FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA, signed
WIMBOH SANTOSO
Enacted in Jakarta on 23 April 2020
MINISTER OF LAW AND HUMAN RIGHTS
REPUBLIC OF INDONESIA, signed
YASONNA H.LAOLY
STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2020 NUMBER 110
EXPLANATION
OF
FINANCIAL SERVICES AUTHABILITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 20/POJK.04/2020
CONCERNING
TRUST DEEDS FOR DEBT SECURITIES AND/OR SUKUK
I. GENERAL
Commercial Banks acting as Trustees play an important role in the issuance of debt securities and/or Sukuk by Issuers, namely representing the interests of holders of debt securities and/or Sukuk both inside and outside of court. In order to represent the interests of holders of debt securities and/or Sukuk, Trustees are required to create Trust Deeds based on notarial deeds which form the legal basis of the relationship between the Issuer and the Trustee as the representative of the holders of debt securities and/or Sukuk.
Considering that Trust Deeds are created by Issuers and Trustees, in order for Trust Deeds to protect and not harm the interests of holders of debt securities and/or Sukuk, the Financial Services Authority (formerly Bapepam and LK) has issued Regulation Number VI.C.4 concerning General Provisions and Trust Deeds for Debt Securities, which among other things regulates clauses that must be included in Trust Deeds for debt securities and/or Sukuk.
In line with the development of the debt securities and/or Sukuk market in Indonesia, there are new products and regulations for debt securities and/or Sukuk, including those issued with the aim of maintaining or improving environmental sustainability and national development that is equitable throughout Indonesia through the utilization of funding sources in the Capital Market by Regional Governments.
Based on the considerations stated above and in order to simplify the regulation regarding existing trust deeds, the Financial Services Authority deems it necessary to revise regulations regarding Trust Deeds.
The main provisions regulated in this Financial Services Authority Regulation include, among others, the obligations of Trustees before signing the Trust Deed, the obligations of Trustees regarding the content of the Trust Deed, and the clauses of the Trust Deed.
II. ARTICLE BY ARTICLE
Article 1
Clear enough.
Article 2
Clear enough.
Article 3
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Article 4
Clear enough.
Article 5
Paragraph (1)
Letter a
Number 1
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Number 2
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Number 3
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Number 4
The term "other risks" includes legal risks or reputation risks.
Number 5
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Number 6
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Number 7
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Number 8
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Number 9
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Letter b
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Paragraph (2)
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Article 6
Paragraph (1)
Letter a
The term "Issuer's activities" refers to business activities for Issuers that are companies or management of activities funded by Public Offerings of regional bonds and/or regional Sukuk for Issuers that are regions as referred to in Government Regulations regarding regional loans. Monitoring the development of the management of the Issuer's business activities or management of activities funded by Public Offerings of regional bonds and/or regional Sukuk includes, among other things, conducting field inspections.
Letter b
The term "other documents" includes, among other things, debt acknowledgment deeds and fiduciary guarantee deeds.
Letter c
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Letter d
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Letter e
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Letter f
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Letter g
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Letter h
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Paragraph (2)
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Article 7
Letter a
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Letter b
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Letter c
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Letter d
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Letter e
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Letter f
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Letter g
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Letter h
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Letter i
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Letter j
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Letter k
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Letter l
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Letter m
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Letter n
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Letter o
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Letter p
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Letter q
The term "default condition" refers to a state where the Issuer is unable to fulfill its obligations to holders of debt securities and/or Sukuk.
Letter r
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Article 8
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Article 9
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Article 10
Paragraph (1)
Letter a
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Letter b
Number 1
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Number 2
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Number 3
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Number 4
The term "other official bodies" includes, among other things, the Financial Services Authority.
Number 5
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Number 6
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Number 7
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Number 8
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Number 9
Clear enough.
Number 10
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Letter c
Number 1
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Number 2
Conversion of debt securities and/or Sukuk into shares can occur, among other things, because:
Number 3
Clear enough.
Number 4
Clear enough.
Paragraph (2)
The term "government" refers to the central government and regional governments.
Article 11
In practice, "financial restrictions and other restrictions" are also known as debt covenants.
Article 12
Letter a
Clear enough.
Letter b
Clear enough.
Letter c
Clear enough.
Letter d
The term "payment" refers to the payment of interest, profit sharing, margin, or remuneration and/or principal amount or principal value of debt securities and/or Sukuk, including payments of fines to holders of debt securities and/or Sukuk, if fines exist.
Article 13
Clear enough.
Article 14
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Article 15
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Article 16
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Article 17
Paragraph (1)
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Paragraph (2)
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Paragraph (3)
The term "government" refers to the central government.
Paragraph (4)
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Paragraph (5)
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Article 18
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Article 19
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Article 20
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Article 21
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Article 22
Letter a
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Number 1
In practice, "sinking fund provision" is also known as sinking fund.
Number 2
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Number 3
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Number 4
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Number 5
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Letter b
Number 1
The term "government" refers to the central government.
Number 2
Clear enough.
Number 3
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Number 4
Clear enough.
Letter c
Clear enough.
Letter d
Clear enough.
Letter e
Clear enough.
Letter f
Number 1
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Number 2
The term "government" refers to the central government.
Number 3
Clear enough.
Number 4
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Number 5
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Number 6
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Number 7
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Number 8
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Letter g
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Letter h
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Letter i
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Letter j
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Article 23
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Article 24
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Article 25
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Article 26
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Article 27
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Article 28
The term "specific actions" includes, among other things, ordering Trustees to replace capital market supporting professionals who have been appointed.
Article 29
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Article 30
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Article 31
Clear enough.
Article 32
Clear enough.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 6496
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Source: Otoritas Jasa Keuangan (Financial Services Authority) — original document · Summary generated with machine assistance and reviewed before publication; the authoritative text is the regulator's original document. How RegAlert works
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