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境外进行项目融资管理暂行办法 Administration of Project Financing Conducted Outside China Tentative Procedures

2006-05-15 19:38   我要纠错 | 打印 | 收藏 | | |

(Promulgated by the State Planning Commission and the State Administration of Foreign Exchange on, and effective as of, 16 April 1997.)
颁布日期:19970416  实施日期:19970416  颁布单位:国家计委、 国家外汇管理局

  These Procedures are formulated in order to standardize acts of project financing carried out outside China, to strengthen control over China's foreign debt and to more effectively utilize foreign funds, in accordance with the requirements of the State Council concerning further strengthening the macro-level administration of the taking out and use of international commercial loans.

  Article 1 For the purposes of these Procedures, “project financing” shall refer to the financing method pursuant to which foreign exchange funds are raised outside China in the name of a construction project in China and where the debt payment liability to the foreign entity is limited to the expected revenue from and the assets of the project itself. Such financing method shall have the following characteristics:

  1. the creditors have no recourse against assets or revenue other than those of the construction project;

  2. no institutions in China effect any mortgage, pledge or debt payment with assets, rights, interests or revenue other than those of or in the construction project; and

  3. no institutions in China provide financing guarantees in any form.

  Article 2 Project financing shall mainly be applied to infrastructure construction projects such as power generating facilities, high-grade highways, bridges, tunnels, urban waterworks, sewage treatment plants, etc. and other construction projects which require large scale investment and that will generate expected long-term and stable revenues.

  Article 3 If the method of project financing is used to raise foreign funds for a construction project (“a Project”), the principal investors shall have ample economic resources and the ability to perform the contract. The foreign principal investor shall additionally have a relatively strong international financing ability and a track record in project financing.

  Article 4 The parties to the relevant contracts for the financing, construction, operation, etc. of a Project shall have the appropriate qualifications and the ability to perform the contracts. Such parties shall rely on their own economic resources and technical ability to perform the contracts according to law, and shall reasonably share the commercial and other risks in respect of the Project in accordance with the nature of the risks involved for the Project and each party's ability to control the same.

  The principal investors of a Project shall not become parties to any contract that may result in a major risk for, or conflict of interest with, the Project.

  Article 5 Supporting documents issued by institutions in China for the performance of contracts for the construction, operation, etc. of Projects may not change the nature of the project financing. No domestic financial institution may provide a guarantee in any form. Provision of performance bonds by other institutions in China to foreign entities shall be subject to the approval of the relevant government departments.

  Article 6 The rights of foreign creditors of Projects in respect of debt payment and the mortgage of assets, rights and interests, etc. shall rank pari passu with those of domestic creditors.

  Article 7 The determination of the prices of Project products or services shall conform to Chinese regulations concerning price control, be conducive to forming an expected stable revenue, reasonably reflect the effect of rises in commodity prices and fluctuations in exchange rates and make full allowance for the price level that the place where the Project is located can sustain. The prices are subject to approval by the relevant price control authority. Charges by the Project in China may not be denominated in foreign currencies.

  Article 8 The written proposal and the feasibility study for a Project (including foreign investment Projects) must be issued by the planning department of the place where the Project is to be located or of the authority under which the Project falls. After preliminary examination by the authority in charge of the industry, the project proposal and the feasibility study shall be submitted to the State Planning Commission for examination and approval. In the case of major Projects, after examination by the State Planning Commission, the project proposal and the feasibility study shall be submitted to the State Council for examination and approval.

  Article 9 The feasibility study for a Project shall, in addition to the usual contents that are prescribed by the State and that are required for projects that use foreign investment, include the following:

  1. the qualifications of, and the principle for risk sharing among, the principal investors of the Project and the parties to the contracts;

  2. the method(s) for balancing foreign exchange and the amount of foreign exchange required during the term of operation;

  3. the principles for determining the prices of the products or services and the formulas for price adjustments;

  4. the project financing plan;

  5. a document issued by the foreign credit institution in which it states its intent to commits itself to the loan;

  6. the supporting documents issued by domestic institutions;

  7. a draft of the principal contract for the Project, which may not subsequently be altered and which is subject to approval by the relevant government authority; and

  8. other necessary documents.

  Article 10 After the feasibility study for a Project has been approved by the State Planning Commission, a project company shall be established in China. The project company shall be responsible for all activities related to financing and complete the project financing within one year of the approval of the feasibility study.

  Article 11 With respect to project financing approved by the State Planning Commission, the scale of the foreign financing shall be included in the state guiding plan for the taking out and use of international commercial loans. The conditions for the project financing shall be competitive and subject to examination and approval or examination and verification by the State Administration of Foreign Exchange. With respect to project financing submitted by local authorities, the said conditions shall be subject to preliminary examination by the local branch of the State Administration of Foreign Exchange and subsequently be submitted to the State Administration of Foreign Exchange for examination and approval or examination and verification.

  Article 12 When submitting the project financing conditions to the foreign exchange administration authorities for examination and approval or examination and verification, the project company must provide the following documents:

  1. a written application, including the method, amount and market of the project financing and financing conditions such as the term and interest rate of, and fees related to, the loan;

  2. the feasibility study or other document for the Project approved by the State Planning Commission;

  3. a document to evidence that the project financing has been included in the State guiding plan for the taking out and use of international commercial loans;

  4. the project financing agreement;

  5. documents related to the project financing that are in the nature of a guarantee; and

  6. other necessary documents.

  Article 13 Foreign exchange funds raised by a project company through project financing shall be timely remitted into China and applied to the import of technology, equipment and materials and the payment of other expenses, in accordance with the purposes approved by the State Planning Commission. The balance shall be retained or settled, according to state foreign exchange control regulations. Without the approval of the State Administration of Foreign Exchange, such funds may not be deposited outside China.

  Article 14 A project company shall open special Renminbi or foreign exchange accounts for repayment of principal and payment of interest with a designated foreign exchange bank in China, in accordance with the relevant regulations. Without the approval of the State Administration of Foreign Exchange, a project company may not establish accounts outside China for revenue generated in China.

  Article 15 A project company shall deposit Project revenue to be applied to the repayment of principal and payment of interest in the special account, in accordance with State regulations and the relevant agreements. With respect to any deficiency in foreign exchange to be used to repay the principal of the foreign debt, the project company may, after verification and approval by the local foreign exchange administration authority, purchase foreign exchange at a designated foreign exchange bank on the strength of the relevant documents approved by the State Planning Commission and the State Administration of Foreign Exchange. The foreign exchange so purchased shall be deposited in the special account.

  Outward remittances of foreign exchange from special accounts for repayment of principal and payment of interest shall be made on schedule in accordance with State regulations and the relevant agreements.

  Article 16 After formal signature of the project financing agreement, the project company shall carry out procedures for registration of foreign debt with the foreign exchange administration authority. Prior to the end of March of every year, the project company shall report details of its use of funds, its revenue situation and its debt payments, etc. during the preceding year to the State Administration of Foreign Exchange and accept inspection and supervision by the relevant government departments.

  Article 17 In any case where project financing is carried out in violation of these Measures and/or without approval, designated foreign exchange banks may not open accounts for repayment of principal and payment of interest therefor, convert the necessary foreign exchange or effect outward remittances for repayment of principal of the loan.

  Article 18 If relevant State laws and regulations otherwise provide for project financing for a particular Project, such project financing shall be handled as provided by such laws or regulations.

  Article 19 The implementation of these Procedures shall be supervised by the State Planning Commission together with the State Administration of Foreign Exchange.

  Article 20 These Procedures shall be effective as of the date of promulgation.

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