Temporary Procedures for the Administration of Project Financing Conducted Outside China (Promulgated by the State Planning Commission and the State Administration of Foreign Exchange on and effective as of April 16, 1997)
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 utilize more effectively foreign funds in accordance with the requirements of the State Council concerning the further strengthening of the macro-level administration of the implementation of international commercial loans.
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 under which l iability for debt payment 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 of 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.
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., as well as other c onstruction project which require large scale investment and which shall generate long-term and stable revenues.
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 pr incipal investor shall additionally have a relatively strong international financing abilities as well as a proven track record in project financing.
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 econo mic resources and technical ability to perform the contracts according to law, and shall reasonably share the commercial and other risks relevant to the Project in accordance with the nature of the risks involved for the Project and each party's ability t o control the same.
The principal investors of a Project shall not become parties to any contract which may result in a major risk for, or conflict of interest with, the Project.
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.
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.
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 comm odity prices and fluctuations in exchange rates and make full allowance for the price level that the Project's locale can sustain. Prices shall be subject to approval by the relevant price control authority. Project charges within China may not be denomin ated in foreign currencies.
The written proposal and the feasibility study for a Project (including foreign investment Projects) must be issued by the Project's local planning department or by the authority under the jurisdiction of which the Project fa lls. 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 examinatio n by the State Planning Commission, the project proposal and the feasibility study shall be submitted to the State Council for examination and approval.
The feasibility study for a Project shall, in addition to the usual contents that are prescribed by the State and which 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 commit 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.
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 approval of the feasibility study.
With respect to project financing approved by the State Planning Commission, the scale of the foreign financing shall be included in the State administrative plan for the implementation 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 or the State Administration of Foreign Exchange and subsequently be submitted to the State Administration of Foreign Exchange for examination and approval or examination and verifi cation.
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.
Foreign exchange funds raised by a project company through project financing shall be remitted into China in a timely manner 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. Such funds may not be deposited outside China without the approval of the State Ad ministration of Foreign Exchange..
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. With out the approval of the State Administration of Foreign Exchange, a project company may not establish accounts outside China for revenue generated in China.
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 excha nge 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.
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 ever y 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 govern ment departments.
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 the repayment of principal and payment of interest theref or, convert the necessary foreign exchange or effect outward remittances for repayment of principal of the loan.
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.
The implementation of these Procedures shall be supervised by the State Planning Commission together with the State Administration of Foreign Exchange.
These Procedures shall be effective as of the date of promulgation.