MEASURES FOR PROVIDING SHORT-TERM LOANS IN FOREIGN CURRENCY BY THEBANK OF CHINA

MEASURES FOR PROVIDING SHORT-TERM LOANS IN FOREIGN CURRENCY BY THEBANK OF CHINA This English document is coming from the "LAWS AND REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA GOVERNING FOREIGN-RELATED MATTERS" (1991.7) which is compiled by the Brueau of Legislative Affairs of the State Council of the People's Republic of China, and is published by the China Legal System Publishing House.

In case of discrepancy, the original version in Chinese shall prevail.

Whole Document MEASURES FOR PROVIDING SHORT-TERM LOANS IN FOREIGN CURRENCY BY THE BANK OF CHINA (Approved and promulgated by the State Council on August 30, 1980) These Measures for providing short-term loans in foreign currency are hereunder formulated with a view to speeding up the socialist modernization programme and, on the basis of self-reliance and by using the foreign currency funds absorbed by the Bank of China, developing production of exports and other economic under-takings and increasing foreign exchange earnings as well.

Chapter I Eligible Borrowers and the Purposes for which Loans are to be Used Article 1 Loans are to be granted to export-oriented industries and other enterprises earning foreign exchange income directly or indirectly who can meet the conditions for borrowing. The loans are primarily for encouraging export-oriented industries to tap production potential and to support their renovations and retooling old plants and equipments.

Article 2 The loans are to be used for: a. financing imports of advanced technology, equipment and materials essential to upgrading the borrower's productivity and the quality, variety and packaging of export goods; b. financing imports of raw materials and components to be processed for export; c. developing transportation and tourism and carrying out engineering projects contracted in foreign countries; d. supporting the processing of raw materials and assembling of parts supplied by foreign buyers, and supporting compensatory trade; and e. providing short-term working capital to production projects that generate foreign exchange directly or indirectly.

Chapter II Conditions for Borrowing Article 3 Applicants for loans must meet the following requirements: a. Marked economic results: Preference is given to borrowers who are able to earn more foreign exchange in proportion to the money invested and repay bank loans sooner Borrowers should be able to run their enterprises efficiently, make the most of the imported advanced technology, equipment and raw materials, tap their production potential, renovate obsolete plants and equipment, enhance the competitiveness of their export goods in the international markets, thereby earning more foreign exchange and accumulate more funds for the country.

b. Assurance of repayment: Borrowers must give evidence of a reliable source of foreign exchange income and the ability to repay loans plus interest for which they are required to submit a schedule of repayment.

Where loans are granted to the export-goods industry, the increased output attributed to the loan should be primarily for export and not be included in the state domestic marketing plan. The income from the increased output and the export proceeds in foreign exchange should first be set aside for repayment of the bank loan. In case the goods are to be turned over to a foreign trade corporation for export, the borrower should sign a sales contract with this corporation which commits the latter to repay the bank loan in foreign exchange for the borrower.

Enterprises not directly related to the export trade must submit a document of approval signed by the competent department committing the latter to repay the loan from its own foreign exchange income. When necessary, the bank may demand that some organization that has a regular foreign exchange income stands surety for the borrower.

c. Availability of domestic factors of production to make imported materials and equipment operational: Domestic factors of production refer to factory buildings, equipment, steam, water, electricity and fuel, raw materials, labour force, technological expertise and funds in Renminbi requisite to making the imported equipment and materials operational.

These items must be duly arranged and approved by the Planning Commission or the competent authorities who have to list them in their plans or sign contracts with the borrower.

d. With respect to the items mentioned above, borrowers should obtain prior approval of higher authorities for those items that require allotment of funds for capital construction or technological installations.

Chapter III Applications for and Utilization of Loans, and Examination and Approval of Applications Article 4 Applications for loans should be submitted to the Bank of China (or People's Bank of China where the Bank of China does not operate) together with the following supporting documents: a document evidencing the approval of the proposed project by the department in charge; a list of imports the loan is to finance; a schedule proving the domestic factors of production are available and a copy of the contract; a document approved by the department in charge showing that counterpart funds in Renminbi have been earmarked for repayment of the amount of Renminbi required for the import of the equipment. In the case of a project where the producer needs to repay the loan with earnings from the export of its products, the producer should conclude with a foreign trade department a contract or an agreement on production and sales, and on the repayment of the foreign currency borrowed.

Article 5 Applications for loans by the departments under the State Council shall be examined item by item against the prerequisites for borrowing by the head office of the Bank of China. Applications by local departments and enterprises shall be reviewed by the Bank of China's regional branches in the provinces, municipalities and autonomous regions within the bounds of their respective loan quotas assigned by the head office. Cases that need to be reviewed by the head office or ministries concerned should be submitted to them for approval. In examining the applications, the Bank should keep in touch with the departments in charge and work in close cooperation with them.

Article 6 After the application is approved, the borrower should sign a loan agreement, open a loan account with the Bank of China and place an order for imports. If the borrower fails to sign the loan agreement or submit a list of imports within the specified time, the Bank may revoke its approval of the loan. The list of imports must be signed by the Bank before the order is placed. Without the approval of the Bank, neither the purpose for which the loan is to be used nor the descriptions and quantities of imports should be changed. The borrower should submit to the Bank a copy of the contract signed with a foreign trader who provides the goods. The Bank should help the borrower to make the best use of the loan.

Article 7 For a substantial loan, the borrower should submit a quarterly withdrawal plan according to which the Bank will arrange the funds. In case the plan needs to be adjusted because of poor planning or unexpected changes of circumstances, the borrower should apply to the Bank for adjustment a month before the end of the quarter. For failure to carry out the plan, the borrower shall bear additional bank charges on the amount of the withdrawal falling short of, or in excess of, the planned amounts so as to compensate the Bank for losses in raising funds from abroad.

Chapter IV Term of Loans and Rates of Interest Article 8 The term of the loan is to begin from the day of the withdrawal to the day of repayment of the principal and interest. The term of loans for importing raw materials and components to be processed for export is normally 1 year. The term of loans for importing equipment or materials to be used in making equipment, and that of loans for other purposes shall not exceed 3 years. Where loans take the form of buyers' credits, the maturity shall not exceed 5 years.

Article 9 The interest rates for loans are to be determined and made public by the head office of the Bank of China on the basis of the cost of raising funds on the international money markets plus its handling charges.

Chapter V Repayment of Loans Article 10 The borrower shall, in keeping with the loan agreement, repay the principal before the loan runs out, and pay the interest regularly to the Bank. If the borrower fails to repay, the surety is responsible for repayment. If necessary, the Bank of China or the People's Bank of China may force repayment by debiting the foreign currency deposit account of the borrower or the surety (or by writing off the foreign exchange quota allotted to the borrower and seizing his counterpart funds in Renminbi earmarked for the purchase of the foreign exchange quota).

Article 11 A borrower who has a regular foreign exchange income should repay the loan from its foreign exchange earnings. A borrower who is not directly involved in the export trade should repay the loan from export proceeds received through a foreign trade corporation. This corporation or some other organization which stands surety for the borrower should issue a certificate to "repay foreign exchange quota" against which the borrower may purchase foreign exchange with Renminbi from the Bank of China to repay the loan. Foreign exchange earnings from processing raw materials and assembling parts provided by foreign buyers or earnings from compensatory trade must first be set aside for repayment of the loan.

Article 12 Loans made to finance a construction project by a state-owned enterprise may be repaid out of profits derived from the increased output, out of depreciation reserves for fixed assets, or out of changes payable to the government for the use of fixed assets. Enterprises that are authorized to retain a portion of their profits may make repayment from the retained profits after deductions for the staff's welfare fund and bonus fund.

However, deductions for the production development fund and for retention of increased profits are not allowed. Loans to collectively owned township enterprises may be repaid out of profits derived from the increased output (profits before tax) or from depreciation reserves for fixed assets. The department in charge is not allowed to collect profits or demand payment out of the project financed by the bank loan before the loan is repaid. If the above-mentioned funds are sufficient to repay the loan and a surplus remains, income tax shall be paid on the surplus or a percentage of profits shall be turned over to the government as required. If not, the deficit may, with the consent of the tax authorities, be covered by the industrial and commercial tax on the increased output which would otherwise be collected. When applying for the loan, the borrower should send a copy of the application to the tax authorities for the record.

Chapter VI Buyers' Credits Article 13 When loans are provided in the form of the buyers' credits, the following rules shall apply, apart form other provisions in the Measures: a. The borrower must abide by the provisions in the buyer's credit agreement that the Bank of China has signed with a foreign bank and must place orders for imports from the country in which the foreign bank is located.

b. The borrower must indicate in the order for imports that the buyer's credit is to be used for payment. The commercial contract signed between a Chinese foreign trade corporation and the foreign seller should indicate the name of the bank providing the buyer's credit.

c. At the time the commercial contract is signed, the Bank of China shall negotiate with the foreign bank providing the buyer's credit and sign an agreement on the drawdown of the credit. The agreement shall be signed by head office of the Bank of China or by one of its branches with its authorization.

Chapter VII Loan Administration Article 14 Choosing the best possible loanees. The Borrower must maximize the effective productivity of the loan by relying on cost accounting.

Preference is given to the borrower who earns more foreign exchange in proportion to the amount of the loan granted and makes repayment sooner.

The borrower who performs poorly or who is unable to repay his loan upon maturity, will not receive further loans until he shows improvement in management.

Article 15 Clearly specifying the responsibilities. Both the Bank and the borrower shall abide by the loan agreement: the Bank undertakes to provide the loanable funds; the borrower undertakes to draw on the loan and utilize its productive potential effectively. The Bank shall raise the interest by 10-50% for overdue loans counting from the maturity date, and by 100% for loans diverted to uses other than those authorized by the bank.

Article 16 Exercising bank supervision. The Bank shall inquire into each project before financing it, examine the borrower's application before approving it and oversee the performance of the borrower after the loan is granted.

The Bank has the duty to help the borrower achieve its economic goals. In this way the bank shall fulfil its role of promoting, regulating and supervising the economic activities of the borrower.

For large loans, the Bank shall sit in on the negotiations between the borrower and the foreign supplier and make suggestions as to the preferred currency for making payment and the method of payment. The borrower must provide the bank with all necessary information, documents, statistics and a duplicate of the relevant contract. The borrower shall be held accountable for violation of government decrees and policies; failure to abide by the regulations, the contract or the agreement; dissipation of foreign exchange; or failure to repay the loan when due. At the same time the Bank may take such disciplinary actions as suspending or recalling the loan before maturity, raising the interest rate or even suing the borrower in a court of law.

Chapter VIII Supplementary Provisions Article 17 On the date these Measures come into force, Regulations for Providing Short-term Loans in Foreign Currency, issued by the Ministry of Finance on September 29, 1978, shall no longer be valid except for loans and loan agreements previously approved and signed. Rules for the implementation of these Measures shall be formulated separately by the Bank of China.

ublic by the head office of the Bank of China on the basis of the cost of raising funds on the international money markets plus its handling charges.

Chapter V Repayment of Loans Article 10 The borrower shall, in keeping with the loan agreement, repay the principal before the loan runs out, and pay the interest regularly to the Bank. If the borrower fails to repay, the surety is responsible for repayment. If necessary, the Bank of China or the People's Bank of China may force repayment by debiting the foreign currency deposit account of the borrower or the surety (or by writing off the foreign exchange quota allotted to the borrower and seizing his counterpart funds in Renminbi earmarked for the purchase of the foreign exchange quota).

Article 11 A borrower who has a regular foreign exchange income should repay the loan from its foreign exchange earnings. A borrower who is not directly involved in the export trade should repay the loan from export proceeds received through a foreign trade corporation. This corporation or some other organization which stands surety for the borrower should issue a certificate to "repay foreign exchange quota" against which the borrower may purchase foreign exchange with Renminbi from the Bank of China to repay the loan. Foreign exchange earnings from processing raw materials and assembling parts provided by foreign buyers or earnings from compensatory trade must first be set aside for repayment of the loan.

Article 12 Loans made to finance a construction project by a state-owned enterprise may be repaid out of profits derived from the increased output, out of depreciation reserves for fixed assets, or out of changes payable to the government for the use of fixed assets. Enterprises that are authorized to retain a portion of their profits may make repayment from the retained profits after deductions for the staff's welfare fund and bonus fund.

However, deductions for the production development fund and for retention of increased profits are not allowed. Loans to collectively owned township enterprises may be repaid out of profits derived from the increased output (profits before tax) or from depreciation reserves for fixed assets. The department in charge is not allowed to collect profits or demand payment out of the project financed by the bank loan before the loan is repaid. If the above-mentioned funds are sufficient to repay the loan and a surplus remains, income tax shall be paid on the surplus or a percentage of profits shall be turned over to the government as required. If not, the deficit may, with the consent of the tax authorities, be covered by the industrial and commercial tax on the increased output which would otherwise be collected. When applying for the loan, the borrower should send a copy of the application to the tax authorities for the record.

Chapter VI Buyers' Credits Article 13 When loans are provided in the form of the buyers' credits, the following rules shall apply, apart form other provisions in the Measures: a. The borrower must abide by the provisions in the buyer's credit agreement that the Bank of China has signed with a foreign bank and must place orders for imports from the country in which the foreign bank is located.

b. The borrower must indicate in the order for imports that the buyer's credit is to be used for payment. The commercial contract signed between a Chinese foreign trade corporation and the foreign seller should indicate the name of the bank providing the buyer's credit.

c. At the time the commercial contract is signed, the Bank of China shall negotiate with the foreign bank providing the buyer's credit and sign an agreement on the drawdown of the credit. The agreement shall be signed by head office of the Bank of China or by one of its branches with its authorization.

Chapter VII Loan Administration Article 14 Choosing the best possible loanees. The Borrower must maximize the effective productivity of the loan by relying on cost accounting.

Preference is given to the borrower who earns more foreign exchange in proportion to the amount of the loan granted and makes repayment sooner.

The borrower who performs poorly or who is unable to repay his loan upon maturity, will not receive further loans until he shows improvement in management.

Article 15 Clearly specifying the responsibilities. Both the Bank and the borrower shall abide by the loan agreement: the Bank undertakes to provide the loanable funds; the borrower undertakes to draw on the loan and utilize its productive potential effectively. The Bank shall raise the interest by 10-50% for overdue loans counting from the maturity date, and by 100% for loans diverted to uses other than those authorized by the bank.

Article 16 Exercising bank supervision. The Bank shall inquire into each project before financing it, examine the borrower's application before approving it and oversee the performance of the borrower after the loan is granted.

The Bank has the duty to help the borrower achieve its economic goals. In this way the bank shall fulfil its role of promoting, regulating and supervising the economic activities of the borrower.

For large loans, the Bank shall sit in on the negotiations between the borrower and the foreign supplier and make suggestions as to the preferred currency for making payment and the method of payment. The borrower must provide the bank with all necessary information, documents, statistics and a duplicate of the relevant contract. The borrower shall be held accountable for violation of government decrees and policies; failure to abide by the regulations, the contract or the agreement; dissipation of foreign exchange; or failure to repay the loan when due. At the same time the Bank may take such disciplinary actions as suspending or recalling the loan before maturity, raising the interest rate or even suing the borrower in a court of law.

Chapter VIII Supplementary Provisions Article 17 On the date these Measures come into force, Regulations for Providing Short-term Loans in Foreign Currency, issued by the Ministry of Finance on September 29, 1978, shall no longer be valid except for loans and loan agreements previously approved and signed. Rules for the implementation of these Measures shall be formulated separately by the Bank of China.