SBS Resolution No. 0930-2006: Amendments to the Regulation of Financing Contracts with Credit Portfolio Guarantee

Lima, July 19, 2006

S.B.S. Resolution
No. 930-2006

The Superintendent of Banking, Insurance and Private Administrators of Pension Funds:

Whereas, pursuant to numeral 8 of Article 349 of the General Law of the Financial System and the Insurance System and Organic Law of the Superintendency of Banking and Insurance, Law No. 26702, hereinafter the General Law, it is the attribution of this Superintendency to establish the general rules that regulate the contracts and instruments related to the operations carried out by the companies of the financial system;

Whereas, this Superintendency, through SBS Resolution No. 1027-2001, approved the Regulation of Financing Contracts with Credit Portfolio Guarantee, regulating the execution of financing contracts in which it is agreed that, in support of such financings, the companies of the financial system must assign their credit portfolio or in some way dispose of it, in favor of the entities that granted them such financings, or in favor of third parties,

Whereas, said rule has the purpose of preventing that, through said contracting mechanism, the order of priority established in Article 117 of the General Law may be altered, as well as that the provisions of numeral 2 of Article 106 of the General Law may be infringed, which provides that the intervention of a company of the financial system determines the suspension of its operations;

Whereas, through SBS Resolution No. 455-99, the Regulation of Special Regimes and of the Liquidation of Companies of the Financial System and the Insurance System was approved,

Whereas, this Superintendency has considered it convenient to make clarifications for the treatment of the concepts excluded from the mass referred to in numeral 2 of Article 118 of the General Law, whose disposal as guarantee does not alter the order of priority of Article 117 of the General Law,

Whereas, in the case of the concepts referred to in numeral 2 of Article 118 of the General Law, it is necessary to regulate the liquidation process when there is exact identification of the assets that correspond to a certain liability and the resources obtained are greater or lesser than the identified claims;

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In view of the opinion of the Deputy Superintendencies of Banking and Microfinance, of Insurance, of Risks and of Legal Advisory, as well as of the Economic Studies Management; and,

In use of the attributions conferred by numeral 5 of Article 106, Article 114 and numerals 7, 8 and 9 of Article 349 of the General Law;

RESOLVES:

Article One.- Incorporate as the third paragraph of Article 3 of the Regulation of Financing Contracts with Credit Portfolio Guarantee, approved by SBS Resolution No. 1027-2001, the following text:

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

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

b) All assets must correspond to financings made 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 programs and issuance prospectuses. For this purpose, the amount committed in the specific guarantee must also be indicated.

If all the requirements indicated above are not met, the impediment indicated in the first paragraph shall apply."

Article Two.- Replace the second paragraph of Article 7 of the Regulation of Financing Contracts with Credit Portfolio Guarantee, approved by SBS Resolution No. 1027-2001, with the following text:

"The companies must report the credit portfolio granted as guarantee in a complementary annex to Annex No. 5 'Report of classification of debtors and provisions', which shall be called Annex No. 5-D 'Report of classification of the debtors of the credit portfolio, contingents and financial leases that back the financings or credit lines', without prejudice to said portfolio being included in Annex No. 5. Said annex must be presented at the close of each quarter for each of the financings, and at the end thereof, when applicable and only once, those credits that have been assigned in execution of guarantee must be detailed."

Article Three.- Incorporate as the Eighth Final Provision of the Regulation of Special Regimes and of the Liquidation of Companies of the Financial System and the Insurance System, approved by SBS Resolution No. 455-99, the following text:

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"EIGHTH.- Liquidation of the concepts of numeral 2 of Article 118 of the General Law when there is identification of assets and liabilities

In the case of the concepts referred to in numeral 2 of Article 118 of the General Law, when it is possible to identify with exactness which assets correspond to a certain liability of the company and the transfer to other companies of the financial system is proceeded with, in accordance with the provisions of the last paragraph of said article, the following rules must be taken into account:

a) When the value of the identified assets exceeds that of their corresponding liabilities, such remainder shall be destined to cover the rest of the claims excluded from the mass referred to in numeral 2 of Article 118 of the General Law.

b) When the value of the identified assets is less than that of their corresponding liabilities, the difference may only be covered to these creditors if there are funds available after the other claims of numeral 2 of Article 118 have been adequately covered."

Article Four.- This Resolution shall enter into force on the day following its publication in the official newspaper El Peruano

Register, communicate and publish.

JUAN JOSE MARTHANS LEON
Superintendent of Banking, Insurance and
Private Administrators of Pension Funds