RegAlertRule · BCRA · 29 Nov 2018 · A 6605
Guarantees: Adjustments to Rules on Preferred Guarantees and Computation
Financial institutions must, for financing secured by real estate developments through trusts or construction companies, verify a notarized contract, a land-ownership certificate (or a public-deed purchase agreement no older than 6 months showing at least 60% of the land value paid), a work permit, and clauses directing loan funds to the work; purchase-and-sale agreements must state fiduciary ownership and, where the full price is paid, deliver possession and an irrevocable notarized power of attorney. Contracts financing horizontal-property units must follow point 1.2.9's penultimate paragraph, and uncovered portions of preferred guarantees are treated as debts without preferred guarantees. Effective 30/11/2018, replacing points 1.2.8 and 3.1.22.
2018 - YEAR OF THE CENTENARY OF THE UNIVERSITY REFORM
COMMUNICATION “A” 6605
29/11/2018
TO FINANCIAL INSTITUTIONS:
Ref.: Circular
LISOL 1 - 815
Guarantees. Adjustments.
We address you to inform you that this Institution adopted the following resolution:
“1. Replace points 1.2.8. and 3.1.22. of the rules on “Guarantees” with the following:
“1.2.8. Pledge or assignment as guarantee –including fiduciary– of the purchase-sale agreement on:
1.2.8.1. land, lots or parcels –whether urban or rural–, or of warehouses, premises, offices, garages and already constructed dwellings with respect to which a mortgage cannot be constituted because the property is not registered in the real estate registry of the corresponding jurisdiction. This, to the extent that the full price of the property is paid, possession is delivered to the acquirer and there is an irrevocable power to execute the deed –with signature certified by a public notary– in favor of the latter;
1.2.8.2. future functional units to be constructed or under construction, with respect to which possession cannot be exercised, duly registered in the real estate registry of the corresponding jurisdiction under the terms of article 1170 of the Civil and Commercial Code of the Nation.
Likewise, contracts instrumenting financing on constructed or projected units under the horizontal property regime must comply with the provisions of the penultimate paragraph of point 1.2.9.”
“3.1.22. Purchase-sale agreement of land, lots or parcels or other already constructed properties, or of a functional unit to be constructed or under construction (point 1.2.8.):
3.1.22.1. On properties intended for housing: 75 % of the appraisal value of the property (land plus construction progress, where applicable).
3.1.22.2. On properties whose use is other than housing: 50 % of the appraisal value of the property (land plus construction progress, where applicable).”
2. Incorporate as points 1.2.11. and 3.1.25. of the rules on “Guarantees” the following:
“1.2.11. Naval mortgage or pledge, registered in first degree on vessels or naval artifacts –enabled or under construction–, in accordance with the provisions of Law 20.094 (and its amendments).”
“3.1.25. Naval mortgage or pledge, registered on vessel or naval artifact (point 1.2.11.):
3.1.25.1. Enabled: 40 % of the appraisal value of the asset.
3.1.25.2. Under construction: 50 % of the appraisal value of the asset.”
Likewise, point 1.1.5. of the referenced rules is updated in order to incorporate the provisions disclosed through Communication “A” 6124.
On the other hand, we send you in annex the sheets that, in replacement of those previously provided, should be incorporated into the referenced rules. Likewise, it is recalled that on the page of this Institution www.bcra.gob.ar, accessing “Financial System – LEGAL AND REGULATORY FRAMEWORK - Compilations and summaries - Ordered texts of general regulations”, you will find the modifications made with texts highlighted in special characters (strikethrough and bold).
We greet you attentively.
CENTRAL BANK OF THE ARGENTINE REPUBLIC
Darío C. Stefanelli
Principal Manager of Issuance and Regulatory Applications Agustín Torcassi General Deputy Manager of Regulations
ANNEX
GUARANTEES
B.C.R.A.
Section 1. Classes.
CENTRAL BANK OF THE ARGENTINE REPUBLIC
1.1. Preferred “A”.
They are constituted by the assignment or security of rights with respect to securities or documents of any nature that, duly instrumented, ensure that the entity may dispose of the funds for the cancellation of the obligation contracted by the client, without the need to previously require payment from the debtor since the effectiveness depends on solvent third parties or on the existence of markets in which the aforementioned securities or documents, or the effects they represent, can be settled directly, whether their maturity coincides with or is subsequent to the maturity of the loan or the committed periodic payments or whether the proceeds are applied to the cancellation of the debt or transferred directly to the entity for that purpose.
Included in this category, as a taxative enumeration, are the following:
1.1.1. Guarantees constituted in cash, in pesos, or in the following foreign currencies: US dollars, Swiss francs, pounds sterling, yen and euros, taking into account permanently their quotation value.
1.1.2. Guarantees constituted in gold, taking into account permanently their quotation value.
1.1.3. Security of fixed-term deposit certificates issued by the financial entity itself, constituted in the currencies referred to in point 1.1.1.
1.1.4. Automatic reimbursements of export operations, charged to the Central Bank of the Argentine Republic (BCRA), in accordance with the respective regimes of bilateral or multilateral agreements, whatever the term of the operation.
1.1.5. Guarantees or securities of national public securities or of monetary regulation instruments of the BCRA, which have normal and habitual quotation for significant amounts in markets of the country, or of fixed-term deposit certificates issued by the financial entity itself constituted in those instruments.
1.1.6. Avales and letters of credit issued by foreign banks or multilateral development banks that comply with the provisions of point 3.1. of the rules on “Credit evaluations” –requiring for that purpose an international risk rating of “A” or higher–, that are not the parent or controlling company and its subsidiaries and branches, or controlled or branches of the local entity, or that maintain other forms of linkage, whatever the term of the operation, to the extent that they are unrestricted and that the accreditation of the funds is made immediately upon simple request of the beneficiary entity.
Version: 11a. COMMUNICATION “A” 6605
Effective:
01/01/2018
Page 1
B.C.R.A.
GUARANTEES
Section 1. Classes.
1.2.7.7. In the purchase and sale agreement for the goods resulting from the development, whose model shall be included in an annex forming part of the trust agreement for guarantee, it must be stated by means of a specific clause that there is fiduciary ownership over the property on which the construction is being developed, in which the identification data of the trustee of the trust for guarantee shall be recorded.
1.2.8. Pledge or assignment in guarantee –including the fiduciary one– of the purchase and sale agreement over:
1.2.8.1. land, lots or parcels –whether urban or rural–, or of warehouses, premises, offices, parking spaces and already constructed dwellings with respect to which a mortgage cannot be constituted because the property is not registered in the real estate registry of the corresponding jurisdiction. This, to the extent that the full price of the property is paid, possession is delivered to the acquirer and there is an irrevocable power of attorney to execute the deed –with signature certified by a public notary– in favor of the latter.
1.2.8.2. future functional units to be constructed or under construction, with respect to which possession cannot be exercised, duly registered in the real estate registry of the corresponding jurisdiction in the terms of article 1170 of the Civil and Commercial Code of the Nation.
Likewise, the contracts that instrument financings on constructed or projected units under the horizontal property regime must comply with the provisions of the penultimate paragraph of point 1.2.9.
1.2.9. Pledge or assignment in guarantee of rights over real estate developments implemented through trusts –in the terms of article 1666 and following of the Civil and Commercial Code of the Nation– or construction companies, provided that the existence of the following elements is verified:
1.2.9.1. Copy authenticated by notary of the corresponding contract instrumented by public deed, from which the obligation of the trustee or of the company –as applicable– to carry out the work to whose financing the guarantee is allocated arises.
1.2.9.2. Certificate of ownership of the land issued by the corresponding Real Estate Registry, from which the ownership in favor of the trustee or the construction company arises. Failing that, purchase and sale agreement instrumented by public deed with an age no greater than 6 months, through which the trustee or the construction company has paid, at a minimum, 60 % of the purchase value of the land.
1.2.9.3. Work permit or authorization, granted by the corresponding jurisdictional authority for the start of construction.
1.2.9.4. The contract, whose rights are the object of the pledge or assignment, must contemplate clauses through which the borrowers authorize or grant a mandate to the lending financial entity so that the funds granted in loan are contributed or entrusted, as the case may be, for the purpose of carrying out the work.
Version: 12a. COMMUNICATION “A” 6605
Effective date:
30/11/2018
Page 7
GUARANTEES
B.C.R.A.
Section 1. Classes.
The contracts that instrument the financings must clearly establish that the failure to contract insurance in favor of the acquirers of the projected functional units, in accordance with the provisions of article 2071 of the Civil and Commercial Code of the Nation, shall not deprive the financial entity of any right arising from the financing granted.
When it concerns the pledge or assignment in guarantee of rights over functional units for financings granted directly to the acquirers, in addition to the requirements previously mentioned, the following shall be required: i) the presentation of a copy authenticated by notary of the instruments by which those rights were constituted in favor of the respective acquirers and ii) copy of the work plan approved by the competent authority in which it is observed that all the projected functional units that will be subdivided appear.
1.2.10. Pledge or assignment in guarantee of the debt instruments referred to in point 3.2.10. of the rules on “Financing to the non-financial public sector”.
1.2.11. Naval mortgage or pledge, registered in first degree over vessels or naval artifacts –enabled or under construction–, in accordance with the provisions of Law 20.094 (and its amendments).
1.3. Remaining guarantees.
The guarantees not explicitly included in the preceding points, such as the mortgage in a degree other than first and the pledge or surety of shares or commercial documents and the liens constituted abroad in accordance with legislations other than the local one –except in the cases expressly provided for–, shall be considered non-preferred.
1.4. Reference amount.
The amount to be considered shall be the maximum level of the total annual sales value for the “Micro” category corresponding to the “Commerce” sector determined by the application authority of Law 24.467 (and its amendments).
Version: 16a. COMMUNICATION “A” 6605
Effective date:
30/11/2018
Page 8
GUARANTEES
B.C.R.A.
Section 3. Computation.
3.1.19. Credits for financial leases (point 1.2.5.):
3.1.19.1. Real estate for the lessee's own housing –only, family and permanent occupation–, in the case of new financings of up to the equivalent of 11 % of the reference amount established in point 1.4. and it is not a renegotiation of the contract: 100 % of the value of the asset.
3.1.19.2. Real estate for the lessee's own housing –only, family and permanent occupation–, in the case of new financings greater than the equivalent of 11 % of the reference amount established in point 1.4. and up to the equivalent of 17 % of that established in point 1.4. and it is not a renegotiation of the contract: 90 % of the value of the asset.
3.1.19.3. Real estate for the lessee's housing not included in the preceding point: 75 % of the appraisal value of the asset.
3.1.19.4. Other real estate: 50% of the appraisal value of the asset.
3.1.19.5. Motor vehicles and agricultural machinery: 75% of the appraisal value of the asset.
3.1.19.6. Road and industrial machinery: 60% of the appraisal value of the asset.
3.1.20. Credit insurance (points 1.1.16. and 1.2.6.): 100%.
3.1.21. Trusts of guarantee on real estate transferred to the trust (point 1.2.7.):
3.1.21.1. On residential real estate: 75% of the appraisal value of the real estate (land plus construction progress).
3.1.21.2. On real estate for uses other than housing transferred to the trust: 50% of the appraisal value of the real estate (land plus construction progress).
3.1.22. Purchase-sale agreement for land, lots or parcels or other already constructed real estate, or of a functional unit to be constructed or under construction (point 1.2.8.):
3.1.22.1. On real estate intended for housing: 75% of the appraisal value of the real estate (land plus construction progress, when applicable).
3.1.22.2. On real estate whose use is other than housing: 50% of the appraisal value of the real estate (land plus construction progress, when applicable).
3.1.23. Trusts or other rights over real estate developments (point 1.2.9.):
3.1.23.1. On real estate intended for housing: 75% of the value of that right.
3.1.23.2. On real estate whose use is other than housing: 50% of the value of that right.
Version: 12th. COMMUNICATION “A” 6605
Effective date:
30/11/2018
Page 4
GUARANTEES
B.C.R.A.
Section 3. Computation.
3.1.24.Debt instruments referred to in point 3.2.10. of the rules on “Financing to the non-financial public sector” (point 1.2.10.): 100%.
3.1.25. Naval mortgage or pledge, registered on a vessel or naval artifact (point 1.2.11.):
3.1.25.1. Enabled: 40% of the appraisal value of the asset.
3.1.25.2. Under construction: 50% of the appraisal value of the asset.
3.2. Partial coverage with preferred guarantees.
When the existing preferred guarantees do not cover the entirety of the assistance to the client, the portion not reached with that coverage will have the treatment established for debts without preferred guarantees.
For these purposes, the market value of those assets that have a quotation must be permanently taken into account, as contemplated in points 1.1.1., 1.1.2., 1.1.5. and 1.1.13.
Version: 3rd. COMMUNICATION “A” 6605
Effective date:
30/11/2018
Page 5
B.C.R.A.
ORIGIN OF THE PROVISIONS CONTAINED IN THE RULES ON “GUARANTEES”
| TEXT AS AMENDED | SOURCE RULE | OBSERVATIONS | |||||
|---|---|---|---|---|---|---|---|
| Section | Point | Paragraph | Com. | Annex | Point | Paragraph | |
| 1. | 1.1. | “A” 2932 | sole | 1.1. | According to Com. “A” 4242 and 6374. | ||
| 1.1.1. | “A” 2216 | I | 1. | 3rd, a) | According to Com. “A” 2443, 2932, 3918, 4242 and 6374. | ||
| 1.1.2. | “A” 2216 | I | 1. | 3°, a) | According to Com. “A” 2443, 2932 and 3918. | ||
| 1.1.3. | “A” 2216 | I | 1. | 3°, b) | According to Com. “A” 2932, 3918, 4242 and 6374. | ||
| 1.1.4. | “A” 2216 | I | 1. | 3°, c) | According to Com. “A” 2932 and 4242. | ||
| 1.1.5. | “A” 2216 | I | 1. | 3°, d) | According to Com. “A” 2932, 4741, 6091, 6124, 6327 and 6605. | ||
| 1.1.6. | “A” 2216 | I | 1. | 3°, e) | According to Com. “A” 2932, 3918, 4242, 5671, 5740, 6328 and 6374. | ||
| 1.1.7. | “A” 2216 | I | 1. | 3°, g) | According to Com. “A” 2932. | ||
| 1.1.8. | “A” 2216 | I | 1. | 3°, h) | According to Com. “A” 2932. | ||
| 1.1.9. | “A” 2216 | I | 1. | 3°, i) | According to Com. “A” 2932. | ||
| 1.1.10. | “A” 2932 | único | 1.1.11. | According to Com. “A” 3104, 4242, 4522, 4957, 5998, 6531 and 6558. | |||
| 1.1.11. | “A” 2932 | único | 1.1.12. | According to Com. “A” 4141, 5671, 5740 and 6374. | |||
| 1.1.12. | “A” 2932 | único | 1.1.13. | According to Com. “A” 4242 and 6374. | |||
| 1.1.13. | "A" 2932 | único | 1.1.14. | According to Com. "A" 3918, 5671 and 5740. Includes interpretive clarification. | |||
| 1.1.14. | "A" 3114 | 1. | |||||
| 1.1.14.1. | 1° | "A" 3114 | According to Com. "A" 3918, 4055, 5671, 5740, 5998 and 6531. Includes interpretive clarification. | ||||
| 1.1.14.2. | "A" 3114 | 1. | According to Com. "A" 3918, 4055, 5671, 5740, 5998 and 6531. | ||||
| 1.1.15. | "A" 3141 | According to Com. "A" 3307, 3918, 4465 and 5275. | |||||
| 1.1.16. | "A" 3314 | According to Com. "A" 4529, 5671, 5740 and 6558. | |||||
| 1.2. | "A" 2932 | único | 1.2. | According to Com. "A" 3104 and 6374. | |||
| 1.2.1. | "A" 2419 | 1. | 1° | According to Com. "A" 2563 (points 1. and 2.), 2932, 3314, 6250 and 6297. | |||
| 1.2.2. | "A" 2448 | Statement of debtors' situation (point 6.1.2.2.2.). According to Com. "A" 2932, 3918 and 6162. | |||||
| 1.2.3. | "A" 6162 | 4. | |||||
| 1.2.4. | "A" 2448 | Statement of debtors' situation (point 6.1.2.2.2.). According to Com. "A" 2932, 3918 and 5275. | |||||
| "A" 2410 | 7. | According to Com. "A" 3141. |
CENTRAL BANK OF THE ARGENTINE REPUBLIC
| GUARANTEES | |||||||
|---|---|---|---|---|---|---|---|
| CONSOLIDATED TEXT | SOURCE RULE | OBSERVATIONS | |||||
| Section | Point | Paragraph | Com. | Annex | Point | Paragraph | |
| 1. | 1.2.5. | "A" 3259 | 1. | According to Com. "A" 3314, 5067 and 6250. | |||
| 1.2.6. | "A" 3314 | According to Com. "A" 4529 and 6558. | |||||
| 1.2.7. | "A" 4491 | 1. | According to Com. "A" 4501, 5998 and 6250. | ||||
| 1.2.8. | "A" 6250 | According to Com. "A" 6297 and 6605. | |||||
| 1.2.9. | "A" 6250 | According to Com. "A" 6297. | |||||
| 1.2.10. | "A" 6449 | 2. | |||||
| 1.2.11. | "A" 6605 | 2. | |||||
| 1.3. | "A" 7 | Specifications of the "other guarantees received" items, amended by Com. "A" 2932. | |||||
| 1.4. | "A" 5998 | 1. | According to Com. "A" 6528. | ||||
| 2. | 2.1. | 1° | "A" 2448 | Statement of debtors' position (point 6.1.2.2.2.). | |||
| 2° | "A" 2932 | sole | 2.1. | 2° | |||
| 2.2. | "A" 2216 | I | 1. | 4° | According to Com. "A" 6374. | ||
| 3. | 3.1. | "A" 2932 | sole | 3.1. | According to Com. "A" 6374. | ||
| 3.1.1. | "A" 2932 | sole | 3.1.1. | According to Com. "A" 3918. | |||
| 3.1.2. | "A" 2932 | sole | 3.1.2. | ||||
| 3.1.3. | "A" 2932 | sole | 3.1.3. | According to Com. "A" 3918. | |||
| 3.1.4. | "A" 2932 | sole | 3.1.4. | ||||
| 3.1.5. | "A" 2932 | sole | 3.1.5. | According to Com. "A" 3918, 4242 and 4741. | |||
| 3.1.6. | "A" 2932 | sole | 3.1.6. | According to Com. "A" 3918 and 6328. | |||
| 3.1.7. | "A" 2216 | I | 1. | 3°, g) | According to Com. "A" 2932. | ||
| 3.1.8. | "A" 2216 | I | 1. | 3°, h) | According to Com. "A" 2932. | ||
| 3.1.9. | "A" 2216 | I | 1. | 3°, i) | According to Com. "A" 2932. | ||
| 3.1.10. | "A" 2932 | sole | 3.1.11. | According to Com. "A" 3104 and 4522. | |||
| 3.1.11. | "A" 2932 | sole | 3.1.12. | According to Com. "A" 3918. | |||
| 3.1.12. | "A" 2932 | sole | 3.1.13. | ||||
| 3.1.13. | "A" 2932 | sole | 3.1.14. | ||||
| 3.1.14. | "A" 2419 | 1. | 1°, ii) | According to Com. "A" 2932, 3314, 3918, 4551 (point 2.), 4559 (point 3.), 5998 and 6297. | |||
| 3.1.15. | "A" 2932 | sole | 3.1.18. | According to Com. “A” 3918 and 6162. | |||
| 3.1.16. | “A” 6162 | 4. | |||||
| 3.1.17. | “A” 2932 | sole | 3.1.19. | According to Com. “A” 3141, 3918, 4242, 4465 and 5275. | |||
| 3.1.18. | “A” 3114 | 2. | According to Com. “A” 4242. | ||||
| 3.1.19. | “A” 3259 | 2. | According to Com. “A” 5067. | ||||
| 3.1.19.1. | “A” 4559 | 5. | According to Com. “A” 5998. | ||||
| 3.1.19.2. | “A” 4559 | 5. | According to Com. “A” 5998. | ||||
| 3.1.19.3. | “A” 3259 | 2. | According to Com. “A” 3314, 3918 and 4559 (point 5.). | ||||
| 3.1.19.4. | “A” 3259 | 2. | According to Com. “A” 3918 (point 4.). | ||||
| 3.1.19.5. | “A” 3259 | 2. | According to Com. “A” 3314 (point 3.). | ||||
| 3.1.19.6. | “A” 3314 | 6. |
GUARANTEES
| ORDERED TEXT | SOURCE STANDARD | OBSERVATIONS | |||||
| Section | Point | Paragraph | Com. | Annex | Point | Paragraph | |
| 3. | 3.1.20. | “A” 3314 | According to Com. “A” 6558. | ||||
| 3.1.21. | “A” 4491 | 1. | According to Com. “A” 4501 and 6453 | ||||
| 3.1.22. | “A” 6250 | According to Com. “A” 6453 and 6605. | |||||
| 3.1.23. | “A” 6250 | According to Com. “A” 6297 and 6453. | |||||
| 3.1.24. | “A” 6449 | 2. | |||||
| 3.1.25. | “A” 6605 | 2. | |||||
| 3.2. | “A” 2216 | II | 5° | According to Com. “A” 3918. | |||
| 4. | 4.1. | “A” 5975 | 7. |
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