境内机构对外担保管理办法实施细则 Administration of the Provision of Security to Foreign Entities by Domestic Institu

alance sheets and profit and loss statements of the Security Provider and the Secured Party which have been verified by a registered accountant and to which such accountant has affixed the official seal of his accounting firm (if the Security Provider is a group company, it shall provide the consolidated balance sheet and its own balance sheet and profit and loss statement);

　　4. the contract or the letter of intent in respect of the principal debt secured and other related documents;

　　5. the contract or letter of intent of security;

　　6. other materials that the Administration of Foreign Exchange requires to be provided.

　　Mortgages and pledges to foreign parties shall require provision of proof of ownership of the property mortgaged or the thing pledged and documentary evidence of the appraisal of its present value.

　　When wholly Chinese-owned financial institutions and domestic enterprises provide security to foreign parties on behalf of foreign investment enterprises, they must provide a document showing that the security required for the portion of the debt corresponding to the foreign party's investment ratio has already been obtained.

　　Where a branch of a financial institution provides security to a foreign party, it shall additionally provide the authorization document etc. from its head office.

　　Article 10　After the Administration of Foreign Exchange has received application materials that conform to Article 9 hereof from a Security Provider, it shall examine the same and, within 30 days of the date of receipt of the application, give an official reply or forward the materials to the Administration of Foreign Exchange one level higher. If the application materials do not satisfy the conditions, the Administration of Foreign Exchange shall return them to the applicant.

　　Article 11　If a Security Provider fails to issue security to a foreign party within six months after the Administration of Foreign Exchange has approved the provision of such security, the approval document from the Administration of Foreign Exchange shall

automatically become void. If the provision of security remains necessary, the Security Provider must make a separate submission for approval.

　　Article 12　If an extension is required upon the expiration of security period, the Security Provider shall, 30 days prior to the maturity date of the debt, conduct extension procedures with the authorized Administration of Foreign Exchange of the place where it is located. Such application shall be subject to examination and approval by the Administration of Foreign Exchange in accordance with the limits of authority set forth herein.

　　Article 13　The head offices of wholly Chinese-owned financial institutions shall formulate methods of authorization and administration measures in respect of the provision of security to foreign parties by their branches, and report such methods and measures to the State Administration of Foreign Exchange for the record. The branches of wholly Chinese-owned financial institutions shall submit the methods of authorization and administration measures of their head offices to the Administration of Foreign Exchange under whose jurisdiction they come, for the record.

　　On the basis of the methods of authorization and administration measures submitted for the record, the Administrations of Foreign Exchange shall examine the ability of the wholly Chinese-owned financial institutions in their respective jurisdictions to provide security. Branches of wholly Chinese-owned financial institutions may not issue security to foreign parties without having been granted corresponding authorization.

　　The State Administration of Foreign Exchange shall examine the qualifications and ability of wholly Chinese-owned financial institutions to provide security. It shall notify wholly Chinese-owned financial institutions that do not satisfy the conditions and notify all local Administrations of Foreign Exchange that they should not approve the provision of security to foreign parties by such institutions or their branches.

　　Article 14　Domestic investment enterprises may provide security to foreign parties only for their directly subordinate subsidiaries or for that portion of the foreign debt of an enterprise in which they have equity participation as corresponds to the ratio of the Chinese party's investment in such enterprise, except where the Secured Party is a foreign investment enterprise that is being listed outside the People's Republic of China by means of issuing B shares or H shares etc.

　　Article 15　If a secured foreign loan needs to be converted into Renminbi for use, such conversion shall be handled in accordance with the relevant regulations concerning foreign exchange settlement of capital account items formulated by the State Administration of Foreign Exchange.

　　Article 16　The costs of secured foreign loans shall be subject to supervision and guidance by the Administration of Foreign Exchange.

　　Article 17　If the Secured Party is an organization outside the People's Republic of China, it shall satisfy the following conditions:

　　1. if the Secured Party is a trade-type enterprise outside the People's Republic of China, the ratio of its net assets to its gross assets may in principle not be less than 10%; if the Secured Party is a non-trade-type enterprise outside the People's Republic of China, the ratio of its net assets to its gross assets may in principle not be less than 15%; and

　　2. the Secured Party may not be a loss-making enterprise.

　　Article 18　Real estate developers involved in the provision of mortgage security to a foreign party shall satisfy the following conditions:

　　1. permission or approval for foreign sale of buildings has been obtained from the relevant governmental authorities; and

　　2. the funds invested in the buildings to be sold to foreign buyers account for more than 70% of the total investment.

　　PART TWO　PROVISION OF GUA

RANTEES TO FOREIGN PARTIES

　　Article 19　For the purposes of the Procedures, 'provision of a guarantee to foreign parties' shall mean the act whereby the guarantor and the Beneficiary stipulate that when the debtor fails to pay its debt or perform its obligations as stipulated, the guarantor shall assume liability for payment of the debt or perform the obligations as stipulated.

　　Article 20　The provision of guarantees to foreign parties shall be controlled by the Administration of Foreign Exchange in accordance with the following provisions:

　　1. Finance guarantees, finance lease guarantees, performance bonds denominated in cash foreign exchange under compensation trade agreements, and deferred payment guarantees with a term of more than one year, etc. issued to foreign parties by wholly Chinese-owned banks shall be subject to case-by-case examination and approval.

　　2. The issuance to foreign parties by wholly Chinese-owned banks of guarantees other than those set forth in the preceding item shall be subject to control of the asset-liability ratio.

　　Within the ability to provide security to foreign parties specified in the first and second items of Article 21 hereof, wholly Chinese-owned banks may issue guarantees as mentioned above on their own authority. Contracts for the provision to foreign parties of guarantees as contemplated in this item which are issued by wholly Chinese-owned banks shall become effective on the date of issuance.

　　3. All guarantees to foreign parties issued by non-banking financial institutions and non-financial enterprise legal persons shall be submitted to the Administration of Foreign Exchange for case-by-case examination and approval.

　　Article 21　If the guarantor is a wholly Chinese-owned financial institution, it shall satisfy the following conditions:

　　1. the sum of the outstanding amount under security to foreign parties, the outstanding amount under security in foreign exchange within the People's Republic of China and the outstanding amount of the foreign exchange debts of the financial institution may not exceed 20 times the amount of its own foreign exchange funds;

　　2. the sum of the outstanding amount of foreign exchange loan proceeds disbursed, the outstanding amount under security provided in foreign exchange (calculated at 50%) and foreign exchange investment (equity participation) by the financial institution to any one enterprise legal person may not exceed 30% of its own foreign exchange funds.

　　Article 22　If the guarantor is a non-financial enterprise legal person, the outstanding amount under security to foreign parties may not exceed 50% of its net assets and may not exceed its foreign exchange revenue of the preceding year.

　　Of such enterprises, when a trade-type domestic investment enterprise provides guarantees to foreign parties, the ratio of its net assets to its gross assets may in principle not be less than 15%; and when a non-trade-type domestic investment enterprise provides guarantees to foreign parties, the ratio of its net assets to its gross assets may in principle not be less than 30%.

　　The Administration of Foreign Exchange shall differentiate between trade-type enterprises and non-trade enterprises according to the main lines of business specified on the business licence issued by the State Administration authorities for industry and commerce.

　　PART THREE　PROVISION OF MORTGAGES TO FOREIGN PARTIES

　　Article 23　For the purposes of the Procedures, 'provision of a mortgage to foreign parties' shall mean the use by a debtor or a third party of property as listed in Article 24 hereof as secu

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