スペイン政府は、銀行の不良債権を処理するために、悪(不良債権?)銀行を企画立案中
El ‘banco malo’ será una sociedad anónima con poderes excepcionales
El Banco de España decidirá qué activos dañados se transmiten y su valoración
La futura firma está exenta de lanzar opas
Amanda Mars / Ramón Muñoz Madrid 28 AGO 2012 - 22:17 CET
The 'bad bank' is a limited company with exceptional powers
The Bank of Spain will decide which assets are transferred and damaged its valuation
The firm is exempt from future bids launched
Amanda Mars / Ramon Muñoz Madrid 28 AGO 2012 - 22:17 CET
The Government has already decided the legal structure called bad bank. It will be a limited company and have your hands free to buy and sell all types of assets, as well as for debt issues. His powers are very broad. For this, the government exempts the company's compliance with many of the controls and conditions which are subject to limited liability companies. This is stated in the draft royal decree sent to Brussels, and seen by this newspaper.
Such exemptions include that the bad bank is not obliged to launch a public offer (IPO) of shares when taking control of a company may issue bonds for any amount and sell assets without need for the report an independent valuator or have the consent of the shareholders.
Legislative changes
The articles of Royal Decree that regulates the bad bank created a series of "special conditions" to strengthen the powers of this society when managing assets, streamline operations and prevent claims or lawsuits. In practice, introducing a number of exemptions from various laws. These are the most important:
■ Elimination of limits to issue debt. The bank is regulated by Royal Decree and "supplementary" by the Companies Act but with several exceptions. The most important is that the company may issue all kinds of obligations without being legal maximum limit applies established in section 405 in the Act. This limit requires that the total amount of emissions may not exceed the share capital plus reserves.
■ It ignores the independent expert. The Companies Act provides in Articles 67 and 72 which in certain operations such as constitution, capital gains of corporations, non-cash contributions, purchases, and other "must be subject of a report by one or more independent experts with professional competence. " This requirement is waived for making bad bank leeway to assign the value of the assets to the Bank of Spain, as one of the items.
■ Revocation of operations. The Bankruptcy Act in its Article 71 provides that if you declare the contest will be terminable acts detrimental to creditors made by the debtor within two years preceding the date of the statement, but there is no fraudulent intent existed. This possibility is eliminated in the case of the transfer of assets by the society created by the decree.
■ Voting rights. The corporation may vote at meetings of creditors when buying credits immersed in bankruptcy proceedings, and that this acquisition is considered as "forced", according to the decree seen by this newspaper. Article 122 of the Insolvency Act 2003, which governs the suspension of payments, states that are not entitled to vote at meetings "after the declaration of bankruptcy" except as a result of a forced realization.
■ disputed claims. When transmitting a credit litigious society shall not apply Article 1535 of the Civil Code which provides that the debtor has the right to extinguish it by reimbursing the assignee the price you paid.
■ No need to bid. The decree exempts the company from having to launch a takeover bid (OPA) when acquiring control of a company. The current legislation requires a bid for the total capital when acquired 30% of the capital or transactions that would entail in practice control of the acquired company.
The other big news of the decree are the powers that are attributed to the Bank of Spain in the whole process of setting up the bad bank. The supervisory body will be responsible for each entity to decide what assets are integrated into the bad bank and, more importantly, the valuation of these assets before they are transmitted to society.
The document sent to Brussels detailed in two papers, which did not appear in the previous draft, the general characteristics of the bad bank. The process begins with the decision of Orderly Bank Restructuring Fund (FROB) to require financial institutions and the bank decides to transmit bad "certain assets especially damaged or whose stay in the institution's balance sheet can be particularly harmful to creditworthiness, to unbind those assets and to manage independently its realization. "
In order to implement this process, previously a regulation be developed which will determine the affected asset classes depending on the activity to which they were bound, their length of balance and qualification criteria as supervisors of the Bank of Spain. "Based on those criteria, the Bank of Spain for each entity specify what are the assets to be transferred to an asset management company."
Once created, the management company may set up or take stakes in all kinds of companies, which may transfer assets. We also have the capacity to promote the creation of all types of funds: investment trust or estate, venture capital, asset securitization and mortgage securitization, among others. The form may also issue debt through "all obligations" that is applicable without the legal limit of Companies Act, which prevents emissions that exceed the capital and reserves.
The transfer of the assets to the Company may be made either by purchase, permitted or non-monetary contribution to social capital and the transfer value will depend on what the Bank of Spain said. "Prior to the transfer to the company, the entity valuation adjustments of assets to be transmitted according to the criteria determined by regulation and as appropriate for each entity by the Bank of Spain." The decree clarifies that such endpoints "are homogeneous and apply to all entities on a non-discriminatory" and replace that assessment by the independent experts.
In order to avoid lawsuits and streamline the process, the decree provides that the transfer of assets to the company is subject to a number of "special conditions" that, in practice, represent exceptions to Bankruptcy Act, the Civil Code and the Takeover Act.
So, if that affects transmission assets subject to bankruptcy law may not be revoked by any debtor in the two years prior to that statement, as required by the Act.
The Company may also vote at meetings of creditors when credit becomes involved in bankruptcy proceedings, and that this acquisition is considered to be "forced" according to the decree.
Nor the bad bank will be required "in any way" to make a bid when it reaches the control of a listed company as provided for in Royal Decree 1006/2007, known as the Takeover Act.
Furthermore, the transfer of assets or outsourcing their management is not in any way constitute a case of succession or extension of tax liability or Social Security, or the extension of liability for labor obligations.
The important thing is the price
Inigo Barron, Madrid
The key to what will work or not the bad bank is the price at which assets to buy entities. Since the beginning of the housing crisis investors have doubted the internal valuation at which Spanish banks have assets on their balance sheets brick. Now estimated to have applied an average reduction of 35% on the maximum prices of 2007. The public will buy bad bank with a greater reduction, but 55%, 60%, 65%? This is what we are hoping to meet executives of the entities that are doing it the future. So it is very significant that supports Brussels, says the royal decree, it is the opinion of the Bank of Spain prevail.
If the state buys the land or promotions with a low discount, you can say is "subsidizing" entities. If a bank has a promotion valued at 20 million and the Government pays 10 million, may be good news for an entity that could be considered is giving you money because it has little chance of getting rid of those floors for that amount. It is good news for the company, but bad for the state, which also will have to wait a long time to sell without incurring losses.
By contrast, if the government applies a big cut in prices, it is easier to recover the taxpayers' money and in less time. But it has two negative effects: the entity that receives little money for their promotions should increase supplies, if you have not already paid. This situation could lead to some healthy banks have come into losses or capital deficit, so they would have to ask for aid.
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