Resolution modifying the General Provisions applicable to credit institutions

DOF: 04/09/2018

RESOLUTION modifying the General Provisions applicable to credit institutions

A seal bearing the National Coat of Arms appears at the margin, which reads: United Mexican States.- Ministry of Finance and Public Credit.- National Banking and Securities Commission.

The National Banking and Securities Commission, with the agreement of its Board of Directors, based on articles 50, first and fifth paragraphs of the Credit Institutions Law, as well as 4, fractions XXXVI and XXXVIII, and 16, fraction I of the National Banking and Securities Commission Law, having received the prior favorable opinion of the Bank of Mexico, and

CONSIDERING

That it is necessary to make clarifications to the regime applicable to credit institutions regarding capitalization requirements when dealing with credit operations assigned to concessionaires that have service provision contracts with dependencies, federative entities, municipalities and their decentralized or deconcentrated bodies, as well as other entities in the public sector, and where the financing is secured by a guarantee in the form of trusts with federal revenue participations, in order for the assigned risk weighting to precisely correspond to the coverage of said guarantees, has resolved to issue the following:

RESOLUTION MODIFYING THE GENERAL PROVISIONS APPLICABLE TO

CREDIT INSTITUTIONS

SINGLE.- Article 2 Bis 19, fraction I, subsection c) is REFORMED and Annex 24 of the "General Provisions applicable to credit institutions", published in the Official Gazette of the Federation on December 2, 2005, and modified by resolutions published in said Official Gazette on March 3 and 28, September 15, December 6 and 8, 2006; January 12, March 23, April 26 and November 5, 2007; March 10, August 22, September 19, October 14 and December 4, 2008; April 27, May 28, June 11, August 12, October 16, November 9, December 1 and 24, 2009; January 27, February 10, April 9 and 15, May 17, June 28, July 29, August 19, September 9 and 28, October 25, November 26 and December 20, 2010; January 24 and 27, March 4, April 21, July 5, August 3 and 12, September 30, October 5 and 27 and December 28, 2011; June 19, July 5, October 23, November 28 and December 13, 2012; January 31, April 16, May 3, June 3 and 24, July 12, October 2 and December 24, 2013; January 7 and 31, March 26, May 12 and 19, July 3 and 31, September 24, October 30, December 8 and 31, 2014; January 9, February 5, April 30, May 27, June 23, August 27, September 21, October 29, November 9 and 13, December 16 and 31, 2015; April 7 and 28, June 22, July 7 and 29, August 1, September 19 and 28 and December 27, 2016; January 6, April 4 and 27, May 31, June 26, July 4 and 24, August 29, October 6 and 25, December 18, 26 and 27, 2017; January 22, March 14, April 26, May 11, June 26 and July 23, 2018, as well as that issued on August 24, 2018, to read as follows:

TITLES FIRST to FIFTH

...

Annexes 1 to 23

...

Annex 24

Requirements that real guarantees and other assimilable instruments must meet, in order to be considered by Institutions for purposes of determining the capital requirement for credit risk and for the classification of commercial and consumer credit portfolios

Annexes 25 to 71

...

" Article 2 Bis 19 .- ...

...

...

I.

...

a) and b)

...

c)

The obligation indicated in the previous subsection b) is secured with federal revenue participations, or with the federal budget through a trust, provided that such guarantee complies with Annex 24 of these provisions, or by means of a contingent credit line granted by development banks to the dependencies, entities or organizations referred to.

II. and III.

... "

TRANSITORY

SINGLE.- This Resolution shall enter into force the day following its publication in the Official Gazette of the Federation.

Respectfully,

Mexico City, August 27, 2018. - The President of the National Banking and Securities Commission, José Bernardo González Rosas.- Signature.

ANNEX 24

REQUIREMENTS THAT REAL GUARANTEES AND OTHER ASSIMILABLE INSTRUMENTS MUST MEET, IN ORDER TO BE CONSIDERED BY INSTITUTIONS FOR PURPOSES OF DETERMINING THE CAPITAL REQUIREMENT FOR CREDIT RISK AND FOR THE CLASSIFICATION OF COMMERCIAL AND CONSUMER CREDIT PORTFOLIOS

I.

Institutions, in order to use real guarantees for purposes of risk coverage as established in Section E of Section Second, of Chapter III of Title First Bis of these provisions, for purposes of the classification and constitution of reserves for consumer credit portfolio loans referred to in Section First of Chapter V, of Title Second of these provisions, as well as the commercial credit portfolio referred to in Section Third of Chapter V, of Title Second of these provisions, must have at the disposal of the Commission evidence that accredits the following:

a)

The signing of contracts or other instruments documenting the constitution of the guarantees, in which the causes of default that generate the Institution's right to execute said guarantees are stated.

b)

In the case of Movable Guarantees provided for in article 32 bis 1 of the Commerce Code, the consultation or, if applicable, the certification obtained from the Unified Registry of Movable Guarantees and, regarding deposit certificates and pledge bonds, the consultation or, if applicable, the certification obtained from the Unified Registry of Certificates, Warehouses and Merchandise known by its acronym "RUCAM", referred to in article 22 Bis 6 of the General Law of Organizations and Auxiliary Activities of Credit, in order that with the information derived from said consultations or certifications, it is verified that the Movable Guarantee in question is not previously registered in the Unified Registry of Movable Guarantees, nor covered by deposit certificates and pledge bonds registered in the RUCAM.

Regarding pledge bonds, Institutions must have evidence that they complied with what is established in article 236 of the General Law of Titles and Credit Operations. In the event that Institutions take endorsed deposit certificates as collateral, they must notify the general deposit warehouses of such situation and have evidence thereof.

c)

The adoption of necessary measures to ensure the conservation of the assets subject to the guarantees, which includes their registration in the Public Property Registry corresponding; in the case of Movable Guarantees provided for in article 32 bis 1 of the Commerce Code, registration in the Unified Registry of Movable Guarantees and in the case of participations in federal revenues, federal contributions and other own revenues of states and municipalities, in the Local Registry of Obligations and Loans and in the Registry of Obligations and Loans of Federative Entities and Municipalities of the Ministry, as well as those necessary to exercise the right to compensation based on the transfer of ownership of real guarantees.

Institutions that take deposit certificates and pledge bonds must exercise the right stipulated in the second paragraph of article 22 Bis 6 of the General Law of Organizations and Auxiliary Activities of Credit and have the certification of the electronic file of the deposit certificate obtained in the RUCAM stating that the corresponding annotations were made regarding the taking of said deposit certificates and pledge bonds as collateral.

d)

The existence of risk management processes that, in addition to what is stipulated by Chapter IV of Title Second of these provisions, explicitly consider the legal, operational, liquidity and market risks derived from the use of real guarantees.

Such processes must comply with the requirements indicated in section VI of this annex.

e)

The incorporation into credit policies and derived manuals of guidelines and procedures for the administration of real guarantees in general and of elements for the reduction of reserve requirements specifically. Regarding this, Institutions must have policies to ensure that:

1.

A frequent valuation of real guarantees is carried out, in accordance with what is indicated in section VII of this annex, including tests and scenario analyses under unusual or extreme market conditions.

2.

They have updated information regarding the situation, location and state of the real guarantees received, as well as potential liquidation problems.

3.

There is adequate diversification of risks with respect to real guarantees.

4.

Proper administration of guarantees is carried out, in order to contemplate the differences in maturity dates and the consequent exposure periods, once the real guarantees expire.

5.

The monitoring and attention of risks derived from external factors, which could affect the ability of real guarantees to face credit risk (for example, liquidity behavior in the real guarantee market).

6.

Authorities and the public know the policies related to the management and administration of risks derived from the use of real guarantees as coverage for credit risk.

f)

The establishment of methods and internal controls that ensure:

1.

That the real guarantees granted are not securities issued by the same Common Risk Group to which the borrower belongs.

2.

The observance of the conditions and terms established in the contracts, as well as identifying any default by the counterparty and, consequently, being able to request the execution of the real guarantees. For the purposes of the above, the default event defined in the contracts must at least meet the conditions established in Article 2 Bis 68 of these provisions.

3.

The taking of necessary measures to ensure the separation of real guarantees from other assets when the real guarantee is under the custody of a third party or the borrower itself.

II.

Real guarantees or other assimilable instruments to be admissible must correspond to one of the following types:

a)

Financial Guarantees:

1.

Cash or securities and payment instruments with a maturity of less than 7 days in favor of the Institution, when the debtor constitutes a money deposit in the Institution itself and grants it an irrevocable mandate to apply the respective resources to the payment of credits, or when it concerns negotiable credit titles of immediate realization and wide circulation whose value sufficiently covers the guaranteed amount and, in case of default, are available without any legal restriction for the Institution and from which the debtor or any other person distinct from the Institution cannot dispose while the obligation subsists.

2.

Deposits, securities and credits held by the Bank of Mexico.

3.

Securities issued or guaranteed by the Federal Government.

4.

Securities, titles and documents, held by the IPAB, as well as obligations guaranteed by this Institute.

5.

Debt instruments issued by sovereign governments or by their central banks that have a credit rating issued by a recognized Rating Institution, equal to or better than risk grade 3 of Annex 1-B of these provisions.

6.

Debt instruments issued by Institutions, brokerage houses and other entities that have a credit rating issued by a recognized Rating Institution, equal to or better than risk grade 3 of Annex 1-B of these provisions.

7.

Short-term debt instruments that have a credit rating issued by a recognized Rating Institution, equal to or better than risk grade 3 of Annex 1-B of these provisions.

8.

Debt instruments issued by Institutions that lack a credit rating issued by a recognized Rating Institution, provided that they comply with all of the following points:

i)

The instruments trade on a recognized market in accordance with applicable provisions and are classified as senior debt.

ii)

All rated issuances of the same seniority made by the issuing Institution enjoy a credit rating issued by a recognized Rating Institution of at least risk grade 3 of Annex 1-B of these provisions.

iii)

The Institution holding the securities as real guarantees does not possess information indicating that the issuance corresponds to a rating lower than risk grade 3 of Annex 1-B of these provisions.

9.

Equity titles that are part of an Index of a Stock Exchange in Mexico or of Main Indices of other exchanges, as well as subordinated obligations convertible into such titles.

10.

Securities and credits guaranteed with the instruments related to the operations indicated in numerals 1, 2 and 4, of this subsection II, as well as in fractions II and III of Article 46 of the Law, provided that the guarantee is constituted with liabilities owed by the Institution itself regardless of their term, the latter cannot be withdrawn on a date prior to the maturity of the Operation they are guaranteeing and it is agreed that the resources corresponding to said liabilities will be applied to the payment of the own operation in case of default.

11.

Investments in investment funds that trade daily and whose investment assets are limited to the instruments indicated in numerals 1 to 10 above.

12.

Equity titles and subordinated obligations convertible into such titles that trade on the Mexican Stock Exchange or in other recognized Exchanges.

13.

Investments in investment funds whose investment assets are included in the instruments indicated in the previous numeral 12.

b)

Non-Financial Guarantees and assimilable instruments:

1.

Commercial or residential real estate that meet the following requirements:

i)

That the value of the guarantee does not depend on the economic situation of the borrower, including those assets granted under lease where there is no purchase option at the end of the contract term.

ii)

That the guarantee is considered in an amount that does not exceed the current reasonable value at which the property could be sold through a private contract between a seller and a buyer.

When institutions request authorization to use Internal Methodologies, the references in this subsection b) will only be admissible as guarantees to constitute the reserves of the Commercial Credit Portfolio and calculate the capital requirements for operations subject to credit risk referred to in fractions I, II and III of Article 2 Bis 69 of these provisions, provided they meet the requirements established in this subsection.

2.

Movable goods or other guarantees provided for in article 32 bis 1 of the Commerce Code, registered in the Unified Registry of Movable Guarantees, including those assets granted under lease, regarding which there is no purchase option at the end of the contract term. The guarantee must be considered in an amount that does not exceed the current reasonable value, at which the asset could be sold through a private contract between a seller and a buyer.

The guarantees provided for in article 32 bis 1 of the Commerce Code cannot be previously registered in the Unified Registry of Movable Guarantees or covered by deposit certificates and pledge bonds issued by general deposit warehouses and registered in the RUCAM.

3.

Receivables and fiduciary rights, understood as such securities whose liquidation must be carried out through the flows derived from the underlying assets, regarding which the Institution must have ownership and disposal of the cash flows derived from the receivables, in any foreseeable circumstance.

Self-liquidating debts arising from the sale of goods or services linked to commercial operations are included within this concept, as well as amounts of any nature owed by buyers, suppliers, the Federal or Local Public Administration, State productive companies, as well as other independent third parties not related to the sale of goods or services linked to a commercial operation. Admissible receivables and fiduciary rights do not include those related to securitizations, sub-participations or credit derivatives.

When the debtor makes payments directly to the assignor of the receivables, trust or collection administrator, the Institution must periodically verify that these payments are forwarded to the Institution within the terms included in the contract.

4.

Participations in federal revenues or Federal Contributions or both, which correspond to the federative entities or municipalities, which may be granted through:

i)

Guarantee or administration trusts or both.

ii)

Irrevocable instructions or guarantee mandate contracts, or both.

5.

Own revenues corresponding to the federative entities or municipalities, which may be granted through:

i)

Guarantee or administration trusts or both.

ii)

Irrevocable instructions or guarantee mandate contracts or both.

6.

Deposit certificates and pledge bonds registered in the RUCAM, provided that the Institution notifies the issuing general deposit warehouse of said titles that they were taken by the Institution as collateral and has the certification of the electronic file of the deposit certificate obtained from the RUCAM stating that the corresponding annotations were made regarding the taking of said certificates and pledge bonds as collateral by the Institution.

For the purposes of this annex, other assimilable instruments are understood to be those provided for in subsections i) and ii) of numeral 4 and i) and ii) of numeral 5, of this subsection.

III.

The guarantees and assimilable instruments referred to in subsection II above, to ensure their legal certainty must at least:

a)

Be duly constituted in favor of the Institution in question.

1.

In the case of participations in federal revenues, federal contributions and other own revenues of the States and Municipalities they must:

i)

Have authorization from local legislatures, in accordance with what is established in the corresponding local debt laws.

ii)

Accredit that the Institution has rights as first trustee of the guarantee or administration trust or both referred to in numerals 4 and 5 of subsection b) of fraction II of this annex.

iii)

Be registered in the Unified Public Registry, in accordance with Chapter VI of Title Third of the Financial Discipline Law of the Federative Entities and Municipalities, referred to in the first paragraph of article 9 of the Fiscal Coordination Law.

iv)

Be registered in the Registry of Obligations and Loans of Federative Entities and Municipalities of the Ministry.

v)

Have clear mechanisms for channeling resources in favor of Institutions for the payment of financing, such as: valid letter of irrevocable instruction to the Treasury of the Federation, or through trusts or other structured vehicles.

vi)

Institutions must have the opinion of an independent specialized legal firm or that of the legal area of the Institution itself, regarding the validity of the backing of the participations and contributions in federal revenues based on the documents supporting the obligations of the federative entity or municipality with the bank.

vii)

Institutions must have the opinion of an independent specialized legal firm or that of the legal area of the Institution itself, in the case of credits guaranteed with own revenues, regarding the validity of the backing of said revenues.

2.

In the case of real estate they must:

i)

Be legally enforceable in all relevant jurisdictions and be duly constituted.

ii)

Be registered in the Public Registry of Property and Commerce in question.

iii)

Have agreements or clauses documenting the guarantees and allowing the Institution their execution.

4.

In the case of receivables and fiduciary rights, the documents or legal instruments in which they appear must:

i)

Ensure the enforceability of their yields.

ii)

Be binding on all parties and legally enforceable in all relevant jurisdictions. Institutions must monitor compliance with their terms, for which they must have the necessary mechanisms to allow such verification.

iii)

Establish certain and clearly defined procedures that allow the rapid collection of cash flows generated by the guarantee. In all cases, the procedures available to Institutions must guarantee the observance of all pertinent conditions in the legal sphere for the declaration of client default and the rapid adjudication of the guarantee. Likewise, the documents or legal instruments in which the guarantees appear must provide for the possibility of selling or assigning the receivables to third parties without the prior consent of the debtors in cases where there are financial difficulties or default by the borrower.

b)

Be free of encumbrances with third parties, or in case otherwise that the institution appears in first place in the payment priority, considering for such effect the capacity of the guarantee.

c)

Be easily realizable.

IV.

In the administration of movable and immovable assets, Institutions must clearly document the characteristics that must be met to be accepted as real guarantees and the policies for their administration; ensure that assets accepted as collateral are insured in favor of the Institution in case of damage or defects and carry out continuous monitoring of the existence and degree of any preferential right over the property.

V.

In the risk management of the guarantees referred to in the previous section II, Institutions shall:

a)

In the case of real estate, have a documentary report evidencing their real existence and current physical state, as well as tracking the existence and degree of any preferential right over the property.

b)

In the case of receivables and fiduciary rights:

1.

Have a clear process to determine the credit risk of receivables. This process shall, among other aspects, include the analysis of the credit applicant's business and the economic sector in which it operates, considering the effects of the economic cycle, as well as the type of clients with whom it negotiates. In the event that they use information provided by the credit applicant to evaluate the credit risk of clients, Institutions shall examine the credit history of the applicant to corroborate its solidity and credibility.

2.

Ensure that the margin between the position value and the value of the receivables shall reflect all timely factors including the cost of adjudication, the degree of concentration of receivables from a single applicant, and the concentration risk with respect to the total positions of the Institution.

3.

Carry out a continuous and adequate monitoring process for each type of risk, whether immediate or contingent, attributable to the guarantee used as coverage. This process shall include reports on age, control of commercial documents, certificates of indebtedness base, frequent audits of the guarantee, account confirmation, control of income from credited accounts, dilution analysis, and periodic financial analyses of both the applicant and the issuers of the receivables, especially in the case that the guarantee is formed by a reduced number of high-value receivables. Likewise, they shall observe the concentration limits that the Institution establishes for its guarantees in receivables, as well as the agreements relating to the loan in question.

4.

Ensure that receivables pledged by an applicant shall be diversified. In the event that such receivables depend predominantly on the credit quality of the guarantor, the corresponding risks shall be taken into consideration when establishing margins for the set of guarantees. Receivables from persons related to the applicant, including subsidiaries and employees, shall not be recognized as risk coverages.

5.

Have a documented process for collecting receivables in situations of difficulty, including the necessary services to carry it out, even if the collection work is usually performed by the applicant.

VI.

Appraisals shall be carried out in accordance with what is established in the regulation issued by the Commission on this matter and shall be updated according to the policies of the Institution in question.

In the case of commercial real estate, they shall be appraised:

a)

For credits whose PI is or has been greater than 15% in the last twenty-four months, an appraisal shall be available at least every two years or with greater frequency when market conditions are unstable at the judgment of the Commission.

If, as a result of applying value estimates of the assets, assets are identified whose value has decreased and require new valuations, the appraisal shall be updated.

b)

When available information suggests that its value may have been significantly reduced, with respect to general market prices or when any default occurs.

VII.

Assets granted under financial lease may be recognized receiving the same treatment as admissible real guarantees when Institutions are not subject to residual value risk, which consists of the Institution's exposure to a potential loss derived from the fall of the fair value of the asset below its estimated residual value at the beginning of the lease. Institutions shall comply with the minimum requirements for the type of admissible real guarantee in question and, in addition, shall observe the following criteria:

a)

The lessor shall carry out adequate risk management in accordance with the location of the asset, its use, its age, and its expected life cycle.

b)

The lessor shall have ownership of the asset, as well as the capacity to exercise its rights as owner in a timely manner.

c)

The difference between the depreciation rate of the fixed asset and the amortization rate included in the lease payments shall not be significant, in order to avoid overestimating the credit risk coverage attributed to the leased assets.

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