Resolution No. 1027-2001: Approves Regulation of Financing Contracts with Credit Portfolio Guarantee

Lima, December 27, 2001
Superintendent Resolution
No. 1027–2001
The Superintendent of Banking and Insurance

CONSIDERING:

That, pursuant to item 8 of Article 349 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendence of Banking and Insurance, Law No. 26702 and its amendments, hereinafter the General Law, it is the authority of the Superintendence to establish the general regulations governing contracts and instruments related to the operations carried out by companies in the financial system;

That, this Superintendence has deemed it appropriate to establish regulations governing the execution of financing contracts in which it is agreed that, in support of such financing, companies in the financial system must assign their credit portfolio or otherwise dispose of it, in favor of the entities that granted such financing, or in favor of third parties;

That, the purpose of establishing specific regulation on the contracts mentioned in the preceding consideration is to prevent that, through this contracting mechanism, the order of priority established in Article 117 of the General Law could be altered, as well as to prevent infringement of item 2 of Article 106 of the General Law, which provides that the intervention of a company in the financial system determines the suspension of its operations;

Having heard the opinion of the Adjunct Superintendencies of Banking and Legal Advice; and,

In exercise of the powers conferred by item 5 of Article 106 and item 8 of Article 349 of the General Law;

RESOLVES:

Article First.- Approve the Regulation of Financing Contracts with Credit Portfolio Guarantee, which forms part of this Resolution.

Article Second.- This Resolution shall enter into force from the day following its publication in the Official Gazette El Peruano.

Register, communicate, and publish.

LUIS CORTAVARRIA CHECKLEY
Superintendent of Banking and Insurance

REGULATION OF FINANCING CONTRACTS WITH
CREDIT PORTFOLIO GUARANTEE

Scope

Article 1°1.- This Regulation establishes the provisions to which multiple operations companies included in items 1, 2, 3, 4, and 7 of letter A of Article 16 of the General Law, the National Bank, the Development Finance Corporation (COFIDE), the Agricultural Bank, and the MIVIVIENDA S.A. Fund, hereinafter companies, shall be subject when they enter into financing contracts guaranteed with their credit portfolio.

Contracts

Article 2°.- Companies that enter into financing contracts, such as credit lines or other modalities, with companies in the financial system of the country or abroad or with third parties, in which it is agreed that, in support of such financing, the companies must assign their credit portfolio in whole or in part or otherwise dispose of it, in favor of the entities that granted such financing, or in favor of third parties, must include in the contract the list of credits that will serve as collateral or, failing that, the mechanisms to identify them.

Impediments

Article 3°.- In the contracts referred to in the previous article, companies are prohibited from including clauses that establish that the assignment or disposal of their credit portfolio in favor of the entities that granted them the financing, or in favor of third parties, shall proceed in the event that such companies are subjected to an intervention or liquidation regime.

Likewise, in such contracts, it shall not be agreed to assign as collateral the placements and assets linked, proportionally, to the issuance of bonds referred to in item 2 of Article 118 of the General Law.

The impediment stated in the first paragraph shall not apply to those placements and financial leasing operations referred to in item 2 of Article 118 of the General Law, in which there is an exact identification of the liabilities to which the aforementioned assets are backing. In this regard, for such identification to exist, the following requirements must be met: 2

a) The term until which the resources of such liabilities will serve to grant financing must be clearly determinable;

b) All assets must correspond to financing carried out after the granting of the funds and within the term mentioned in a);

c) The amounts committed both on the side of the financing received and of the assets must be clearly identifiable;

d) Portfolio substitution shall not proceed; and,

e) There must be transparency of information to the other creditors of the companies in the notes to the financial statements and in the issuance programs and prospectuses. For this effect, the amount committed in the specific guarantee must also be indicated.

In the event that all the aforementioned requirements are not met, the impediment stated in the first paragraph shall apply.

Prudential Measures 3

1 Article substituted by SBS Resolution No. 3212-2023, published on September 29, 2023.
2 Paragraph incorporated by SBS Resolution No. 930-2006 of 07/19/2006 3 Article modified by SBS Resolution No. 4317-2009 of 05/22/2009

Article 4°.- In the contracts referred to in Article 2 of this Regulation, companies must ensure adequate matching in terms of term and currency between the financing received and the credit portfolio granted as collateral, in accordance with what is provided in Article 178 of the General Law.

Accounting Standards

Article 5°.- Without prejudice to maintaining the corresponding accounting records, companies must register the credit portfolio referred to in Article 2 of this Regulation in off-balance sheet accounts. For this effect, incorporate into the Accounting Manual for companies in the Financial System, approved by SBS Resolution No. 895-98, the sub-accounts, analytical accounts, analytical sub-accounts, and description detailed in Annex I (*) of this standard.

Likewise, companies that enter into or agree to the contracts referred to in this Regulation must, during their validity, disclose such contracts in the financial statements referred to in Article 135 of the General Law, through an annotation that must indicate, for each contract entered into, at least the amount of the credit portfolio assigned as collateral, the identification of the counterparty, the term of the contract, as well as the legislation and jurisdiction applicable to it. 4

For the purposes of what is provided in the last paragraph of the previous article, modify Annex A “Risk-Weighted Assets and Contingent Credits” and Annex A-I “Weighting of Assets Transferred in Trust” of Report No. 2 of the Accounting Manual for Financial System Companies, in accordance with what is stated in Annex II (*) of this Regulation.

Board Approval and Responsibilities

Article 6°.- The contracts referred to in Article 2 of this Regulation must be approved by the Board of Directors of the company, and the minutes must contain an explanation of the reasons motivating the signing of such contracts. In the event it is agreed that such contracts are subject to foreign legislation and/or jurisdiction, the Board of Directors must explain the grounds justifying that decision, duly recording it in the minutes.

Directors, managers, and other officials of the company who approve and sign, as appropriate, financing contracts with credit portfolio guarantee, exceeding the framework established by this Regulation or infringing any other provision issued by the Superintendence, shall be personally responsible for such acts, being subject to the corresponding sanctions, without prejudice to the sanctions that the companies they represent may incur.

Information to the Superintendence

Article 7°.- Companies that enter into contracts with the characteristics indicated in Article 2 of this Regulation must present to the Superintendence a copy of said contracts, as well as the minutes of the Board session in which they are approved, within five (5) calendar days of their signing. Additionally, in the event such contracts are subject to foreign legislation and/or jurisdiction, companies must present a certified copy by a notary or competent authority of the legislation applicable to the contract and/or the norms referred to the competence of the foreign jurisdiction.

Companies must report the credit portfolio granted as collateral in a complementary annex to Annex No. 5 “Report on classification of debtors and provisions”, which shall be called Annex No. 5-D (*) See Accounts referred to in Annex I of this norm in Accounting Manual (Chap. III and IV)

5 According to what is established in Article two of SBS Resolution No. 1882-2014 of 03-26-2014, the publication will be carried out in accordance with the instructions established in the Accounting Manual for Financial System Companies.
(*) See modifications referred to in Annex II of this norm, in Accounting Manual (Chap. V)

“Report on classification of debtors of the credit portfolio, contingent and financial leasing that back financing or credit lines”, without prejudice to said portfolio being included in Annex No. 5. This annex must be presented at the close of each quarter for each financing, and must detail at the end thereof, when applicable and only once, those credits that have been assigned in execution of the guarantee. 5

Without prejudice to what is stated in the previous paragraph, companies must communicate to the Superintendence the list of credits assigned in execution of the guarantee, within two (2) business days of the assignment occurring.

The Superintendence, with the aim of promoting transparency regarding this type of guarantees granted by companies, may order the publication of the information referred to in this article.

Internal and External Audit

Article 8°.- The Internal Audit Units of companies must incorporate into their Annual Work Plan the evaluation of compliance with what is provided in this standard. Likewise, External Audit Firms must include, in their report on the internal control system, an evaluation of the policies and procedures established by companies for compliance with what is provided in this Regulation.

Presentation and Renewal of Valid Contracts

Article 9°.- Companies that, upon the entry into force of this standard, have valid contracts that include clauses with the characteristics indicated in Article 2 of this Regulation, must present to the Superintendence a copy thereof within a term of five (5) calendar days counted from the entry into force of this standard, without prejudice to also complying with what is provided in the second paragraph of Article 7 preceding.

Companies that, upon the entry into force of this standard, have signed contracts that include clauses with the characteristics indicated in Article 3 of this Regulation, may only renew said contracts subject to what is established in this Regulation.

Dissemination of the Standard

Article 10°.- This Regulation must be read at the first Board session of the company held after the entry into force of this standard, with due record thereof in the corresponding minutes. For this purpose, the Board Secretary must deliver to each director, before the session and under oath, a copy of this Regulation.

The General Manager of the company must communicate to the Superintendence compliance with what is provided in this article, within two (2) days following the corresponding Board session.

5 Paragraph substituted by SBS Resolution No. 930-2006 of 07/19/2006