The PRC Civil Code and related SPC Interpretation on Security – implications for offshore lenders

Some of the key implications are set out below.

4. Key implication #1: When you amend a facility agreement, always obtain written consent from the guarantor if the guaranteed obligations are increased

It is not uncommon for the terms of a guarantee to stipulate that any amendment to the underlying facility agreement does not require consent from or notice to the guarantor for the obligations of the guarantor under the guarantee to remain effective with respect to the amended underlying facility agreement. The issue is, despite such a term in a guarantee, should a lender require consent from a guarantor if the guarantor's obligations will be increased as a result of the amendment to the underlying facility agreement?

Article 695 of the PRC Civil Code provides that if the borrower and the lender amend a facility agreement without the consent of the guarantor in writing, and if such amendment increases the guarantor's obligations, the guarantee will not apply to the increased portion of the obligations as a result of the amendment. However, if the amendment reduces the guarantor's obligations, the guarantor is bound to guarantee the amended (and reduced) obligations. Any amendment to the tenure of the loan will not affect the guarantor's obligations, unless the consent of the guarantor in writing to the amendment to the loan tenure is obtained.

Whilst offshore lenders will welcome the clear stipulation in the PRC Civil Code that a guarantor's obligations are not discharged altogether as a result of an amendment of the facility agreement, it is essential that written consent be obtained from the guarantor where an amendment of a facility agreement will lead to an increase of the guaranteed obligations or an extension to the term of the loan facility, even if the guarantee provides otherwise.

This is a more definitive requirement than the "purview of the guarantee" principle[3] developed under English law that offshore lenders may be more familiar with, which, in essence, provides that a guarantor is only bound by an amendment to the primary contract if the contract so amended remains within the "purview" of the original contract. The application of such principle is highly fact specific.

5. Key implication #2: Any term stipulating that a guarantee is an independent obligation is void

There was previously some ambiguity under PRC law as to whether a term in a guarantee which provides for the guarantee to remain valid and enforceable as an independent obligation, despite the invalidity of the underlying facility agreement to which the guarantee relates, would be enforceable in the PRC.

Article 682 of the PRC Civil Code provides clarity on this issue. The Article provides a guarantee is conditional upon the validity of the underlying facility agreement. If the underlying facility agreement is null and void, so too is the guarantee relating to it, unless otherwise provided for by law[4]. Therefore, any term in the guarantee which stipulates that the guarantee constitutes an obligation independent of the validity of the underlying facility agreement is void under PRC law.

In a Hong Kong or English law governed guarantee, it is common for a guarantee obligation to include an indemnity from the guarantor to establish the obligation of the guarantor is independent of the underlying facility agreement. It remains to be seen whether such an indemnity, if incorporated into a PRC law guarantee, is valid as an independent obligation in light of Article 682 of the PRC Civil Code.

6. Key implication #3: When you transfer your loan participation, always notify the guarantor

A typical syndicated facility agreement will set out the conditions of transfer or assignment of loan participations, including whether consent from, or notification to, an obligor is required.

Article 696 of the PRC Civil Code provides that if a lender transfers all, or part of, its loan participation, notice must be served on the guarantor for the transfer to be binding on the guarantor (assuming the loan facility does not prohibit any transfer without the guarantor's written consent).

In practical terms:

if there is a prohibition on transfer, always obtain the written consent of the guarantor (and the borrower where appropriate); and

if there is no prohibition on transfer, notice should always be given to the guarantor, whether or not the facility agreement provides for notice to be given to the guarantor.

In addition to giving notice to a guarantor, the borrower and any security provider in connection with a transferred loan facility must be notified pursuant to Article 546 of the PRC Civil Code and Article 20 of the SPC Interpretation on Security respectively.

7. Key implication #4: Require corporate resolutions from an onshore company providing guarantee and/or security unless one of the exceptions applies

The PRC Civil Code and the SPC Interpretation on Security provide clarity on the circumstances where corporate resolutions are required to be passed by a company providing a guarantee or security. As a general rule, it is recommended that the provision of guarantee or security be authorised by corporate resolutions unless one of the following exceptions applies:

issuance of a letter of credit by financial institutions or granting of a guarantee and/or security by licensed guarantee companies (担保公司);

granting of a guarantee or security by a non-listed company for the operation of wholly owned subsidiaries; and

consent by way of signing of the guarantee or security document by the shareholders of a non-listed company, constituting not less than two thirds of shareholder voting rights.

For a listed company or a publicly disclosed subsidiary of a listed company, it is essential that a public announcement be made by the listed company in connection with the passing of corporate resolutions for the granting of a guarantee or security.

8. Key implication #5: Security over future receivables if sufficiently identifiable

Article 440(6) of the PRC Civil Code provides for a pledge of both existing and future receivables. This means that lenders may agree with a pledgor to take a pledge over receivables which may not exist at the time of execution of the pledge. The future receivables should be sufficiently identifiable such that at the time of enforcement the scope of the receivables is ascertainable.

9. Key implication #6: Taking security over cash deposits in onshore bank accounts – fluctuating balance possible

Many market participants took the view previously that, in order to create security over cash deposits in a bank account in the PRC, the balance in the bank account had to be fixed, and any fluctuation in the account risked rendering the security ineffective.

Article 70 of the SPC Interpretation on Security provides much needed clarification on the rules surrounding the creation of security over cash deposits, including:

security over cash deposits may be created over a designated deposit account controlled by the lender or a deposit account opened with the lender; and

a fluctuation of the account balance in the deposit account does not in itself invalidate security over the cash deposits therein.

Whether effective security is created over cash deposits will therefore depend on designation (专门化) and control, rather than whether it is a fixed balance. While this is a welcome change that provides more flexibility to borrowers and lenders in structuring a security package for loan facilities, offshore lenders should be aware that it does not mean consideration in taking security over cash deposits under PRC law is equivalent to taking security over cash deposits under English law (where many different forms of security, such as fixed or floating charge, may be created depending primarily on control by the secured creditor over the cash deposits).

10. Key implication #7: Unified registration system in connection with security over onshore movable assets and rights

In the past, security over different types of movable assets and rights were required to be registered with different registration authorities in the PRC. This usually led to delays in fulfilling conditions precedent under loan facility agreements and increased legal and other costs. The PRC Civil Code abolished these complex rules and made way for a unified registration system for movable assets and rights[5].

Under the new regime, the Credit Reference Centre of the People's Bank of China (the "PBOC Registry") operates a nationwide electronic uniform registration system for the registration of security over movable assets and rights. All registrations can be completed online by registrants.

Specifically, security over the following types of assets can be registered at the PBOC Registry:

manufacturing equipment, raw materials, semi-finished products and finished products;
accounts receivables;
certificates of deposit, warehouse receipts and bills of lading;
finance leases;
factoring;
retention of ownership, and
other registrable security interest over movable assets and rights.

However, security over the following types of assets are still subject to separate registration systems, namely, motor vehicles, ships, aircraft, bonds, fund units, equity interest and intellectual property rights.

Offshore lenders should familiarise themselves with the new streamlined registration system when dealing with security over movable assets and rights in the PRC.

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This Alert sets out selected issues from the PRC Civil Code and SPC Interpretation on Security which are relevant to offshore lenders and is not meant to be exhaustive.

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[1] In the context of the SPC Interpretation on Security, taking "security" (担保) includes the taking of both asset security and guarantees.

[2] In this Alert, "onshore" means Mainland PRC (namely, the People's Republic of China, excluding, for the purpose of this Alert only, Hong Kong and Macau Special Administrative Regions, and Taiwan), and "offshore" means any geographical location outside of Mainland PRC.

[3] Triodos Bank NV v. Dobbs [2005]; IMC Raffles Offshore (Singapore) Ltd v Schahin Holding SA [2013]

[4] Such exceptions include letters of credit issued by financial institutions, pursuant to the Notice by the Supreme People's Court of Issuing the Minutes of the National Courts' Civil and Commercial Trial Work Conference (最高人民法院关于印发《全国法院民商事审判工作会议纪要》的通知).

[5] Please also refer to the Decision of the State Council of the People's Republic of China on the Implementation of Uniform Registration of Security Interests in Movable Assets and Rights (国务院关于实施动产和权利担保统一登记的决定), which became effective on 1 January 2021.