UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20 - F
ANNUAL REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2003
COMMISSION FILE NUMBER 000-30852
GRUPO FINANCIERO GALICIA S.A.
(Exact name of Registrant as specified in its charter)
GALICIA FINANCIAL GROUP
(Translation of Registrant's name into English)
REPUBLIC OF ARGENTINA
(Jurisdiction of incorporation or organization)
GRUPO FINANCIERO GALICIA S.A.
TTE. GRAL. JUAN D. PERON 456
C1038 AAJ-BUENOS AIRES, ARGENTINA
(Address of principal executive offices)
SECURITIES REGISTERED OR TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES REGISTERED OR TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Class B Ordinary Shares, Ps. 1.00 par value, ten shares of which are
represented by American Depositary Shares
SECURITIES FOR WHICH THERE IS A REPORTING OBLIGATION PURSUANT TO SECTION 15(d)
OF THE ACT:
None
Indicate the number of outstanding shares of each of the issuer's classes of capital or common stock as of the close of the period covered by the annual report:
Class A Ordinary Shares, Ps. 1.00 par value . . . . . . . . 281,221,650 Class B Ordinary Shares, Ps. 1.00 par value . . . . . . . . 811,185,367 |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark which financial statement item the registrant has elected to follow.
Item 17 [ ] Item 18 [X]
TABLE OF CONTENTS
Page ---- PRESENTATION OF FINANCIAL INFORMATION....................................................................... 1 PART I...................................................................................................... 4 ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS......................................... 4 ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE....................................................... 4 ITEM 3. KEY INFORMATION............................................................................... 4 Selected Financial Data....................................................................... 4 Exchange Rate Information..................................................................... 8 Risk Factors.................................................................................. 8 ITEM 4. INFORMATION ON THE COMPANY.................................................................... 19 Organization.................................................................................. 19 Organizational Structure...................................................................... 19 History....................................................................................... 21 Capital Investments and Divestitures.......................................................... 21 Our Strategy.................................................................................. 23 Business Overview............................................................................. 23 Competition................................................................................... 44 Sales and Marketing........................................................................... 46 Property...................................................................................... 47 Selected Statistical Information.............................................................. 48 Government Regulation......................................................................... 90 Minimum Capital Requirements of Nonbanking Companies.......................................... 90 Main Regulatory Changes in 2002 and 2003...................................................... 91 Argentine Banking System and Regulation....................................................... 99 ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS.................................................. 114 ITEM 5A. OPERATING RESULTS............................................................................. 114 General....................................................................................... 114 Inflation Accounting Adjustments.............................................................. 114 Currency Composition of Our Balance Sheet..................................................... 114 Argentine Economy in 2003..................................................................... 116 Argentine Financial System.................................................................... 117 Results of Operations of Grupo Galicia for the Fiscal Years Ending December 31, 2003, December 31, 2002 and December 31, 2001................................................................ 118 U.S. GAAP and Argentine Banking GAAP Reconciliation........................................... 135 Results by Segments........................................................................... 142 Consolidated Assets........................................................................... 149 Exposure to the Argentine Public Sector....................................................... 152 Off-Balance Sheet Arrangements................................................................ 152 Securitization of Assets...................................................................... 154 Funding....................................................................................... 155 Contractual Obligations....................................................................... 158 Other Commitments............................................................................. 160 Critical Accounting Policies.................................................................. 161 ITEM 5B. LIQUIDITY AND CAPITAL RESOURCES............................................................... 167 Liquidity..................................................................................... 167 Capital....................................................................................... 172 Capital Expenditures.......................................................................... 173 ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES.................................................... 174 Our Board of Directors........................................................................ 174 Functions of Our Board of Directors........................................................... 175 |
TABLE OF CONTENTS
(continued)
Page ---- Our Supervisory Committee..................................................................... 176 Compensation of Directors..................................................................... 177 Management of Grupo Galicia................................................................... 177 Board of Directors of Banco Galicia........................................................... 178 Functions of the Board of Directors of Banco Galicia.......................................... 180 Banco Galicia's Executive Officers............................................................ 181 Banco Galicia's Supervisory Committee......................................................... 183 Compensation of Banco Galicia's Directors..................................................... 184 Compensation of Banco Galicia's Officers...................................................... 184 Employees..................................................................................... 185 Share Ownership............................................................................... 186 ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS............................................. 187 Major Shareholders............................................................................ 187 Related Party Transactions.................................................................... 189 ITEM 8. FINANCIAL INFORMATION......................................................................... 190 Legal Proceedings............................................................................. 190 Dividend Policy and Dividends................................................................. 191 Significant Changes........................................................................... 192 ITEM 9. THE OFFER AND LISTING......................................................................... 193 Shares and ADSs............................................................................... 193 Argentine Securities Market................................................................... 197 Market Regulations............................................................................ 197 ITEM 10. ADDITIONAL INFORMATION........................................................................ 198 Description of Our Bylaws..................................................................... 198 Shareholders' Meetings........................................................................ 202 Exchange Controls............................................................................. 206 Taxation...................................................................................... 206 Material Contracts............................................................................ 212 Documents on Display.......................................................................... 212 ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.................................... 213 General....................................................................................... 213 Interest Rate Risk............................................................................ 214 Foreign Exchange Rate Risk.................................................................... 218 ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES........................................ 219 PART II...................................................................................................... 220 ITEM 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES............................................... 220 ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS.................. 220 ITEM 15. CONTROLS AND PROCEDURES....................................................................... 220 ITEM 16. [RESERVED].................................................................................... 221 ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT.............................................................. 221 ITEM 16B. CODE OF ETHICS................................................................................ 221 ITEM 16C. PRINCIPAL ACCOUNTANTS' FEES AND SERVICES...................................................... 221 PART III..................................................................................................... 223 ITEM 17. FINANCIAL STATEMENTS.......................................................................... 223 ITEM 18. FINANCIAL STATEMENTS.......................................................................... 223 ITEM 19. EXHIBITS...................................................................................... 223 |
PRESENTATION OF FINANCIAL INFORMATION
Our consolidated financial statements consolidate the accounts of Grupo Financiero Galicia S.A. and its subsidiaries. Therefore, our consolidated financial statements include the accounts of:
- Grupo Financiero Galicia S.A., the holding company;
- Sudamericana Holding S.A. and its subsidiaries;
- Galicia Warrants S.A.;
- Net Investments S.A. and its subsidiaries; and
- Banco de Galicia y Buenos Aires S.A., its wholly-owned subsidiary, Banco Galicia Uruguay S.A ("Galicia Uruguay") and its subsidiaries and other subsidiaries and affiliated companies required to be consolidated under Argentine Banking GAAP (collectively, the "Bank" or "Banco Galicia").
In this annual report, references to "we," "our," "us," the "Group" and "Grupo Galicia" are to Grupo Financiero Galicia S.A. and its consolidated subsidiaries.
We were formed on September 14, 1999, as a financial services holding company to hold all of the shares of capital stock of Banco Galicia held by members of the Escasany, Ayerza and Braun families. As a result, our only significant asset as of December 31, 1999, was our interest in Banco Galicia. In July 2000, we conducted an exchange offer in which we offered to exchange shares of Banco Galicia for shares of Grupo Galicia. As a result of the exchange offer, our only significant asset was our 93.23% interest in Banco Galicia. As of December 31, 2002, and December 31, 2003, our interest in Banco Galicia was 93.59% as a result of open-market purchases.
For periods prior to July 1, 2000, the financial statements of Banco Galicia, as our predecessor, have been presented for fiscal years ended June 30. From July 1, 2000, the financial statements of Grupo Galicia have been presented for the six-month fiscal year ended December 31, 2000, and for the fiscal years ended December 31, 2001, 2002 and 2003.
Grupo Galicia and Banco Galicia maintain their financial books and records in Argentine pesos and prepare their financial statements to conform to the accounting rules of the Argentine Central Bank, which prescribes the generally accepted accounting principles for all banks in Argentina. This annual report refers to those accounting principles as "Argentine Banking GAAP." Argentine Banking GAAP differs in certain relevant respects from generally accepted accounting principles in Argentina ("Argentine GAAP"). Argentine Banking GAAP also differs in certain significant respects from generally accepted accounting principles in the United States ("U.S. GAAP"). See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- U.S. GAAP and Argentine Banking GAAP Reconciliation" and note 38 to our consolidated audited financial statements included in this annual report for a description of the principal differences between Argentine GAAP and Argentine Banking GAAP and note 39 to our financial statements for reconciliation of the principal differences between Argentine Banking GAAP and U.S. GAAP for the periods up to December 31, 2003. A reconciliation to U.S. GAAP of Grupo Galicia's net income and total shareholders' equity is presented for the three fiscal years ending December 31, 2003.
In this annual report, references to "US$," "U.S. dollars," and "dollars" are to United States dollars and references to "Ps." or "pesos" are to Argentine pesos. Unless this annual report states otherwise, through December 31, 2001, the exchange rate used to convert foreign currency amounts into pesos on our balance sheets and income statements (as well as those of Banco Galicia) was the exchange rate quoted as of each relevant date or period end by Banco de la Nacion Argentina ("Banco Nacion"). In the case of dollars, until December 31, 2001, the Banco Nacion quotes for such exchange rates had been Ps. 1.0 per US$1.00, the peso-dollar parity introduced in 1991 by Law No. 23,128 (the "Convertibility Law").
On January 7, 2002, Argentina abandoned fixed peso-dollar parity. After devaluing the peso and setting the official exchange rate at Ps. 1.4 per US$1.00, on February 11, 2002, the government allowed the peso to float. Argentine Central Bank Communique "A" 3671, dated July 25, 2002, required that its published reference exchange rate be used by banks to value all foreign currency accounts instead of the exchange rate quoted by Banco Nacion. We began to use the reference exchange rate quoted by the Argentine Central Bank to value our foreign currency assets and liabilities in July 2002. Unless stated otherwise, in this annual report, references to the exchange rate since that time are to the reference exchange rate published by the Argentine Central Bank.
The exchange rates used in the December 31, 2003, and December 31, 2002, consolidated financial statements were Ps. 2.93 per US$1.00, and Ps. 3.36 per US$1.00, respectively, as quoted by the Argentine Central Bank. As of June 25, 2004, the exchange rate, as quoted by the Argentine Central Bank, was Ps. 2.95 per US$1.00. Since Argentina has not been servicing its sovereign debt since the end of 2001, this rate may not accurately reflect the real value of the peso compared to that of the dollar.
On August 22, 1995, the government of Argentina published Decree No. 316/95, which eliminated the requirement that financial statements be restated for inflation (beginning with financial statements prepared after September 1, 1995). In compliance with this decree and applicable regulations of the Comision Nacional de Valores (the National Securities Commission or the "CNV"), Banco Galicia discontinued adjusting its financial statements for inflation. Therefore, Banco Galicia's financial statements were not adjusted for inflation for any fiscal year ended after September 1, 1995, through December 31, 2001. Since we were formed in 1999, our financial statements have not been adjusted for inflation for the fiscal years ended December 31, 1999, 2000 and 2001.
Mainly as a result of the abandonment in 2002 of the fixed exchange rate, Argentina experienced a high rate of inflation. Wholesale prices, as measured by the wholesale price index ("WPI") published by the Instituto Nacional de Estadistica y Censos (National Institute of Statistics and Census or "INDEC"), increased approximately 118.44% in 2002. In accordance with then applicable accounting rules, starting January 1, 2002, we began to adjust our financial statements and those of Banco Galicia for inflation based on changes in the WPI. On July 17, 2002, the Argentine government published Decree No. 1269/02, repealing Decree No. 316/95 and reestablishing the policy of restating financial information to account for inflation for periods beginning on or after January 1, 2002. Consequently, inflation accounting was reintroduced in accordance with Argentine Central Bank Communique "A" 3702, Resolution No. 415/02 of the CNV and Resolution No. 240/02 of the Argentine Federation of Professional Councils of Economic Sciences ("FACPCE"), the body that establishes Argentine GAAP.
Primarily as a result of the stabilization of the WPI during the first half of 2003, the Argentine government published Decree No. 664/03 and the Argentine Central Bank issued Communique "A" 3921, dated April 8, 2003, which eliminated the requirement that financial statements be prepared in constant currency. These rules became effective for financial periods ending on or after March 1, 2003. Likewise, on April 8, 2003, the CNV issued Resolution No. 441/03 discontinuing inflation accounting as of March 1, 2003. Under professional accounting standards, application of that method remained in effect until September 30, 2003, when the Professional Council of Economic Sciences of the Autonomous City of Buenos Aires (C.P.C.E.C.A.B.A.) discontinued the recognition of changes in the purchasing power of currency effective October 1, 2003. From March 2003 to September 2003, prices fell on average approximately 2%.
In this annual report and in the financial statements included in this annual report, unless stated otherwise, our figures and Banco Galicia's figures as of and for the fiscal year ended December 31, 2003, include the effects of inflation accounting through February 28, 2003. (The WPI increased 0.87% between January 1, 2003 and February 28, 2003.) Figures for periods prior to December 31, 2002, have been restated in constant Argentine pesos as of February 28, 2003, applying the approximately 120.35% change in the WPI for the period from January 1, 2002, to February 28, 2003. In addition, for comparison purposes and unless stated otherwise, we have restated in constant pesos of February 28, 2003, all other financial data as of and for periods prior to February 28, 2003, included in this annual report.
Throughout this annual report, "asymmetric pesification" refers to the compulsory asymmetric conversion in January 2002 of most dollar-denominated assets and certain liabilities of Argentine financial institutions into peso-denominated assets and liabilities at different exchange rates. This is more fully described in Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003."
Unless otherwise indicated, we have derived all market share and other industry information from information published by the Argentine Central Bank.
This annual report contains forward-looking statements that involve substantial risks and uncertainties, including, in particular, statements about our plans, strategies and prospects under the captions Item 4. "Information on the Company -- Business Overview -- Banco Galicia's Strategy," Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results" and Item 5. "Operating and Financial Review and Prospects -- Item 5B.
Liquidity and Capital Resources." All statements other than statements of historical fact contained in this annual report (including statements regarding our future financial position, business strategy, budgets, projected costs and management's plans and objectives for future operations) are forward-looking statements. In addition, forward-looking statements generally can be identified by the use of such words as "may," "will," "expect," "intend," "estimate," "anticipate," "believe" or "continue" or similar terminology. Although we believe that the expectations reflected in these forward-looking statements are reasonable, we do not provide any assurance with respect to these statements. Because these statements are subject to risks and uncertainties, actual results may differ materially and adversely from those expressed or implied by such forward-looking statements. Factors that could cause actual results to differ materially and adversely include but are not limited to:
- changes in general economic, business, political, legal, social or other conditions in Argentina or elsewhere in Latin America;
- changes in capital markets in general that may affect policies or attitudes toward lending to Argentina or Argentine companies;
- our inability to obtain additional debt or equity financing on attractive terms, which may limit our ability to fund existing operations and to finance new activities; and
- the other factors discussed under Item 3. "Key Information -- Risk Factors" in this annual report.
You should not place undue reliance on forward-looking statements, which speak only as of the date that they were made. Moreover, you should consider these cautionary statements in connection with any written or oral forward-looking statements that we may issue in the future. We do not undertake any obligation to release publicly any revisions to forward-looking statements after completion of this annual report to reflect later events or circumstances or to reflect the occurrence of unanticipated events.
PART I
ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
Not applicable.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
ITEM 3. KEY INFORMATION
SELECTED FINANCIAL DATA
- The following table presents summary historical financial and other information about us and Banco Galicia as of the dates and for the periods indicated. The financial statements for the fiscal year ending December 31, 2003, include the effects of inflation accounting through February 28, 2003. The financial statements as of and for the fiscal year ended December 31, 2002, and the financial data for prior periods have been restated in constant pesos of February 28, 2003.
- The selected consolidated financial information as of December 31, 2003, and 2002, and for the fiscal years ending December 31, 2003, 2002 and 2001, has been derived from our audited consolidated financial statements included in this annual report.
- The selected consolidated financial information as of December 31, 2001 and 2000, June 30, 2000 and 1999, and for the six-month period ended December 31, 2000, and for the fiscal years ended June 30, 2000 and 1999, has been derived from our audited consolidated financial statements not included in this annual report.
- We prepare our financial statements in accordance with Argentine Banking GAAP, which differs from Argentine GAAP and U.S. GAAP. Our audited consolidated financial statements contain a description of the principal differences between Argentine GAAP and Argentine Banking GAAP and a reconciliation to U.S. GAAP of our shareholders' equity as of December 31, 2003, 2002 and 2001, and our net income for the three years ended December 31, 2003. See notes 38 and 39 to our audited consolidated financial statements included in this annual report.
- You should read this data in conjunction with Item 5. "Operating and Financial Review and Prospects" and our audited consolidated financial statements.
GRUPO FINANCIERO GALICIA --------------------------------------------------------------------------- 6 MONTHS FISCAL YEAR ENDED ENDED --------------------------------------------------------------------------- DECEMBER 31, DECEMBER 31, --------------------------------------------------------------------------- 2003 2003 2002 2001 2000 --------------------------------------------------------------------------- (in millions of U.S. dollars, (in millions of except as pesos, except as (in millions of February 28, 2003, noted)(1) noted)(1) constant pesos, except as noted)(1) CONSOLIDATED INCOME STATEMENT IN ACCORDANCE WITH ARGENTINE BANKING GAAP Financial Income............................ US$573.4 Ps. 1,681.9 Ps.5,797.7 Ps. 3,586.8 Ps. 1,807.3 Net Financial Income (2).................... 61.0 179.0 1,237.3 1,460.7 831.7 Provision for Losses on Loans and Other Receivables............................... 97.6 286.4 1,648.5 1,008.5 272.4 Income before Taxes......................... (73.8) (216.5) (2,775.1) 423.7 313.5 Income Tax.................................. (0.2) (0.6) (66.4) (159.1) (115.4) Net Income before the Absorption............ (74.0) (217.1) (2,841.5) 264.6 198.1 Absorption subject to the Approval of the Annual Shareholders Meeting........... - - 1,370.0 - - Net Income after the Absorption............. (74.0) (217.1) (1,471.5) 264.6 198.1 Adjusted Net Income per Share (in Pesos) (**)............................... (0.068) (0.199) (1.347) 0.242 0.194 Cash Dividends per Share (in Pesos)......... - - - - - Book Value per Share (in Pesos)............. 0.457 1.339 1.500 2.841 2.843 Stock Dividends per Share (in Pesos)........ - - - - - AMOUNTS IN ACCORDANCE WITH U.S. GAAP Net Income (loss)........................... US$249.3 Ps. 731.3 Ps. 422.5 Ps. (8,638.4) Ps. 216.6 Adjusted Net Income (loss) per Share........ 0.228 0.669 0.386 (7.907) 0.212 Book Value (deficit) per Share.............. (1.390) (4.077) (4.964) (5.390) 2.629 Financial Income............................ 938.3 2,752.0 2,613.1 3,569.3 1,813.5 Net Financial Income ....................... 425.9 1,249.1 (1,947.3) 1,444.2 837.7 Provision for Losses on Loans and Other Receivables .............................. 93.6 274.6 928.8 4,731.0 261.2 Income Tax.................................. (13.1) (38.4) 66.5 212.9 102.5 CONSOLIDATED BALANCE SHEET IN ACCORDANCE WITH ARGENTINE BANKING GAAP Cash and Due from Banks..................... US$281.7 Ps. 826.2 Ps. 576.9 Ps. 1,139.9 Ps. 1,366.4 Government Securities, Net.................. 988.4 2,898.9 1,826.9 273.3 170.1 Loans, Net ................................. 3,744.9 10,983.8 10,682.1 20,107.2 20,363.1 Total Assets................................ 7,805.9 22,894.7 23,904.5 27,877.6 36,888.4 Deposits.................................... 1,903.9 5,584.0 5,209.3 13,502.8 19,619.2 Other Funds (3)............................. 5,403.4 15,848.4 17,056.5 11,271.3 14,358.8 Total Shareholders' Equity.................. 498.6 1,462.3 1,638.7 3,103.5 2,910.4 Average Total Assets (4).................... 7,681.7 22,530.3 29,500.9 31,967.4 33,430.0 PERCENTAGE OF PERIOD-END BALANCE SHEET ITEMS DENOMINATED IN DOLLARS: Loans, Net of Allowances.................... - 6.40% 9.11% 86.34% 79.85% Total Assets................................ - 36.43 43.30 80.05 75.65 Deposits.................................... - 29.67 40.08 81.15 70.61 Total Liabilities........................... - 36.82 43.97 74.07 79.06 AMOUNTS IN ACCORDANCE WITH U.S. GAAP Trading Securities.......................... US$112.1 Ps. 328.8 Ps. 35.5 Ps. 141.9 Ps. 228.7 Available-for-Sale Securities............... 549.4 1,611.5 1,380.6 2,914.3 4,377.4 Total Assets................................ 5,082.5 14,907.1 14,862.4 21,061.8 32,797.3 Total Liabilities........................... 6,600.9 19,360.4 20,284.7 26,949.6 30,105.2 Shareholders' Equity (Deficit).............. (1,518.4) (4,453.3) (5,422.3) (5,887.8) 2,692.1 BANCO GALICIA ------------------------- FISCAL YEAR ENDED ------------------------- JUNE 30, ------------------------- 2000 1999 ------------------------- (in millions of February 28, 2003, constant pesos, except as noted)(1) CONSOLIDATED INCOME STATEMENT IN ACCORDANCE WITH ARGENTINE BANKING GAAP Financial Income............................ Ps. 3,303.9 Ps. 2,796.4 Net Financial Income (2).................... 1,593.1 1,261.4 Provision for Losses on Loans and Other Receivables............................... 549.8 475.9 Income before Taxes......................... 507.9 491.6 Income Tax.................................. (163.5) (159.7) Net Income before the Absorption............ 344.4 331.9 Absorption subject to the Approval of the Annual Shareholders Meeting........... - - Net Income after the Absorption............. 344.4 331.9 Adjusted Net Income per Share (in Pesos) (**)............................... 0.294 0.284 Cash Dividends per Share (in Pesos)......... 0.4 0.2 Book Value per Share (in Pesos)............. 2.285 2.277 Stock Dividends per Share (in Pesos)........ - 0.4 AMOUNTS IN ACCORDANCE WITH U.S. GAAP Net Income (loss)........................... Ps. 361.4 Ps. 329.2 Adjusted Net Income (loss) per Share........ 0.309 0.282 Book Value (deficit) per Share.............. 2.281 1.917 Financial Income............................ 3,297.3 2,781.4 Net Financial Income ....................... 1,586.5 1,246.5 Provision for Losses on Loans and Other Receivables .............................. 514.1 507.3 Income Tax.................................. 146.0 94.7 CONSOLIDATED BALANCE SHEET IN ACCORDANCE WITH ARGENTINE BANKING GAAP Cash and Due from Banks..................... Ps. 1,378.0 Ps. 1,746.3 Government Securities, Net.................. 906.0 1,490.2 Loans, Net ................................. 20,551.3 18,611.4 Total Assets................................ 35,435.5 30,233.3 Deposits.................................... 19,266.2 17,298.1 Other Funds (3)............................. 13,234.0 10,267.4 Total Shareholders' Equity.................. 2,935.3 2,667.8 Average Total Assets (4).................... 30,767.8 28,047.2 PERCENTAGE OF PERIOD-END BALANCE SHEET ITEMS DENOMINATED IN DOLLARS: Loans, Net of Allowances.................... 77.55% 75.70% Total Assets................................ 74.20 72.08 Deposits.................................... 69.43 65.81 Total Liabilities........................... 78.56 75.20 AMOUNTS IN ACCORDANCE WITH U.S. GAAP Trading Securities.......................... Ps. 858.2 Ps. 981.9 Available-for-Sale Securities............... 3,658.8 3,995.3 Total Assets................................ 32,180.9 28,883.4 Total Liabilities........................... 29,509.6 26,637.9 Shareholders' Equity (Deficit).............. 2,671.3 2,245.5 |
GRUPO GALICIA BANCO GALICIA ---------------------------------------------- ---------------- 6 MONTHS FISCAL YEAR ENDED ENDED FISCAL YEAR ENDED ---------------------------------------------- ----------------- DECEMBER 31, DECEMBER 31, JUNE 30, ---------------------------------------------- ----------------- 2003 2002 2001 2000 2000 1999 ---------------------------------------------------------------------- (in millions of pesos, except as (in millions of February 28, 2003, constant noted)(1) pesos, except as noted)(1) SELECTED RATIOS RATIOS IN ACCORDANCE WITH ARGENTINE GAAP PROFITABILITY AND EFFICIENCY Net Yield on Interest Earning Assets (5)(*)............ 0.89% 3.66% 6.54% 5.98% 6.18% 5.80% Financial Margin (6)(*)................................ 0.86 4.59 5.36 5.88 6.07 5.22 Return on Assets (7)(*)................................ (0.92) (5.90) 0.90 1.27 1.12 1.18 Return on Shareholders' Equity (8)(*).................. (14.19) (60.51) 8.67 14.68 12.41 13.32 Net Income from Services as a Percentage of Operating Income (9)............................................ 68.72 24.30 39.22 33.64 32.13 33.94 Efficiency ratio (10).................................. 107.11 59.97 57.00 53.09 57.04 64.82 CAPITAL Shareholders' Equity as a Percentage of Total Assets.. 6.39% 6.86% 11.13% 7.89% 8.28% 8.82% Total Liabilities as a Multiple of Shareholders' Equity................................................ 14.66x 13.59x 7.98x 11.68x 11.07x 10.33x Total Capital Ratio (11)............................... - - 17.18% 15.26% 17.34% 13.08% LIQUIDITY Cash and Due from Banks as a Percentage of Total Deposits.............................................. 14.80% 11.07% 8.44% 6.96% 7.15% 10.10% Loans, Net as a Percentage of Total Assets............. 47.98 44.69 72.13 55.21 58.00 61.56 QUALITY CREDITS Past Due Loans (12) as a Percentage of Total Loans .... 8.35% 9.93% 4.96% 3.46% 3.40% 3.67% Non Accrual Loans (13) as a Percentage of Total Loans 10.73 13.08 6.74 4.04 3.95 4.51 Allowance for Loan Losses as a Percentage of Nonaccrual Loans (13)................................. 90.61 104.45 73.94 70.40 69.07 68.24 Net Charge-Offs (14) as a Percentage of Average Loans.. 1.98% 1.89% 2.20% 2.20% 2.80% 2.44% RATIOS IN ACCORDANCE WITH U.S. GAAP Capital Shareholders' Equity (deficit) as a Percentage of Total Assets.......................................... (29.87)% (36.48)% (27.96)% 8.21% 8.30% 7.77% Total Liabilities as a Multiple of Total Shareholders' Equity.................................. (4.35)x (3.74)x (4.58)x 11.18x 11.05x 11.86x Liquidity Loans, Net as a Percentage of Total Assets............. 57.33% 54.88% 61.11% 62.07% 63.79% 64.23% Credit Quality Allowance for Loan Losses as a Percentage of Nonaccrual Loans........................................ 190.43% 179.55% 413.51% 72.99% 73.07% 76.21% INFLATION AND EXCHANGE RATE Inflation (Deflation) (15) (16)........................ 2.03% 118.44% (4.30)% (0.55)% 4.51% (5.14)% Currency Devaluation Rate (16) (%)..................... (12.79) 236.30 - - - - CER (17)............................................... 3.66 40.53 - - - - CVS (18)............................................... 15.85 0.83 - - - - |
(*) Annualized for the six-month period ended December 31, 2000.
(**) Before the loss absorption mechanism established by Argentine Central Bank Communique "A" 3800, net income per share for fiscal year 2002 was Ps. (2.601).
(1) The exchange rate used to convert the December 31, 2003, amounts into U.S. dollars was Ps. 2.933 per US$1.00. For fiscal year 2003, the amounts include the effects of inflation accounting through February 28, 2003. For prior periods, they have been restated in constant pesos of February 28, 2003. All amounts are stated in millions of pesos, except inflation, percentages, ratios, multiples and per-share data.
(2) Net financial income represents mainly income from interest on loans and other receivables from financial brokerage plus net income from government and corporate debt securities, including gains and losses, less interest on deposits and other liabilities from financial intermediation and monetary loss from financial brokerage. For fiscal years 2002 and 2003, it also includes the CER adjustment.
(3) Includes mainly liabilities with the Argentine Central Bank, other banks and international entities.
(4) The average balances of assets and liabilities, including the related interest receivable and payable are calculated on a daily basis for Banco Galicia and for Galicia Uruguay and on a monthly basis for us and our nonbanking subsidiaries as well as for Tarjetas Regionales S.A. (the regional credit card company in which the Bank holds majority interest), us and our nonbanking subsidiaries as well as for Tarjetas Regionales S.A. (the regional credit card company in which the Bank holds a majority interest).
(5) Net interest earned divided by interest-earning assets. For a description of net interest earned, see Item 4. "Information on the Company -- Selected Statistical Information -- Interest-Earning Assets -- Net Yield on Interest-Earning Assets."
(6) Financial margin represents net financial income divided by average interest-earning assets.
(7) Net income plus minority interest plus unrealized valuation difference as
a percentage of average total assets. Before the loss absorption mechanism
allowed by Argentine Central Bank Communique "A" 3800, this ratio was
(10.55)% for fiscal year 2002.
(8) Net income plus unrealized valuation difference as a percentage of average shareholders' equity. Before the loss absorption mechanism allowed by Argentine Central Bank Communique "A" 3800, this ratio was (116.84) % for fiscal year 2002.
(9) Operating income is defined as net financial income plus net income from services plus monetary loss from financial intermediation plus the unrealized valuation difference. Excluding from the calculation the unrealized valuation difference (in accordance with Argentine Central Bank Communique "A" 3703), this ratio was 214.52% for fiscal year 2002.
(10) Administrative expenses net of the monetary gain (loss) from operating expenses as a percentage of operating income as defined above. Excluding from the calculation the unrealized valuation difference (in accordance with Argentine Central Bank Communique "A" 3703), this ratio was 529.39% for fiscal year 2002.
(11) Compliance with the capital adequacy rules of the Argentine Central Bank was suspended during 2002 and 2003 (including December 31, 2002, and December 31, 2003).
(12) Past-due loans consist of amounts of entire loan principal and interest receivable for those loans for which either the principal or any interest payment is 91 days or more past due.
(13) Nonaccrual loans are defined as those loans falling into the following categories under the Argentine Central Bank's classification system: (a) consumer: defective fulfillment, difficulty in recovery, uncollectible or uncollectible for technical reasons and (b) commercial: with problems, high risk of insolvency, uncollectible or uncollectible for technical reasons.
(14) Charge-offs plus direct charge-offs minus bad debts recovered.
(15) As measured by changes in the wholesale price index (WPI) in Argentina.
(16) Source: INDEC.
(17) The "CER" is the coeficiente de estabilizacion de referencia, an adjustment coefficient based on changes in the consumer price index, which became effective February 3, 2002. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003."
(18) The "CVS" is the coeficiente de variacion salarial, an adjustment coefficient based on the variation of salaries, which became effective October 1, 2002. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003."
EXCHANGE RATE INFORMATION
On January 7, 2002, the Argentine Congress enacted Law No. 25,561 (the Public Emergency and Foreign Exchange System Reform Law, the "Public Emergency Law"), abandoning over 10 years of fixed U.S. dollar - peso parity. After devaluing the peso and setting the official exchange rate at Ps. 1.4 per US$1.0, on February 11, 2002, the government allowed the peso to float. The shortage of dollars and their heightened demand caused the peso to devalue significantly in the first half of 2002. Since June 30, 2002, the peso has appreciated versus the dollar from an exchange rate of Ps. 3.80 per U.S. dollar to an average exchange rate of Ps. 2.96 per U.S. dollar for the month of June 2004 (through June 25). There can be no assurance that the peso will not depreciate in the future, particularly while the restructuring of a substantial portion of Argentina's foreign debt remains unresolved.
The following table sets forth the annual high, low, average and period-end exchange rates for U.S. dollars for the periods indicated, expressed in pesos per dollar and not adjusted for inflation.
EXCHANGE RATE (1) ------------------------------------------------------------------ HIGH LOW AVERAGE (2) PERIOD-END ------------------------------------------------------------------ 1999.................................... 1.0000 1.0000 1.0000(3) 1.0000 2000.................................... 1.0000 1.0000 1.0000(3) 1.0000 2001.................................... 1.0000 1.0000 1.0000(3) 1.0000 2002.................................... 3.9000 1.0000 3.0724(3) 3.3630 2003.................................... 3.3625 2.7485 2.9491(3) 2.9330 December 2003 2.9898 2.9330 2.9606 2.9330 January 2004............................ 2.9428 2.8567 2.8928 2.9327 February 2004........................... 2.9613 2.9165 2.9319 2.9235 March 2004.............................. 2.9387 2.8550 2.8976 2.8550 April 2004.............................. 2.8633 2.8037 2.8359 2.8452 May 2004................................ 2.9642 2.8438 2.9197 2.9642 June 2004 (through June 25, 2004) 2.9743 2.9378 2.9601 2.9543 |
(1) Until June 2002, asked closing quotations as quoted by Banco Nacion. Since July 2002, closing reference exchange rate as published by the Argentine Central Bank.
(2) Daily average of closing quotations, unless otherwise noted.
(3) Based on monthly averages.
RISK FACTORS
YOU SHOULD CAREFULLY CONSIDER THE RISKS DESCRIBED BELOW IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS ANNUAL REPORT. WE ALSO MAY FACE RISKS AND UNCERTAINTIES THAT ARE NOT PRESENTLY KNOWN TO US OR THAT WE CURRENTLY DEEM IMMATERIAL, WHICH MAY IMPAIR OUR BUSINESS. IN GENERAL, YOU TAKE MORE RISK WHEN YOU INVEST IN THE SECURITIES OF ISSUERS IN EMERGING MARKETS SUCH AS ARGENTINA THAN WHEN YOU INVEST IN THE SECURITIES OF ISSUERS IN THE UNITED STATES AND CERTAIN OTHER MARKETS.
RISK FACTORS RELATING TO GRUPO GALICIA
WE ARE A HOLDING COMPANY, AND OUR ABILITY TO PAY CASH DIVIDENDS DEPENDS ON THE PROFITABILITY OF OUR SUBSIDIARIES
We are a holding company, and as such we conduct all of our operations through our subsidiaries. As a holding company, we expect dividends or other intercompany transfers of funds from our subsidiaries to be our primary source of funds to pay our expenses and dividends. Banco Galicia is our most significant subsidiary. As of December 31, 2003, Banco Galicia accounted for 99.2% of our consolidated assets and 91.7% of our consolidated net loss. While we do not anticipate conducting operations at the holding company level, any expenses we incur, in excess of minimum levels, will reduce amounts available to be distributed to our shareholders. The ability of our subsidiaries to pay dividends and make other payments to us will depend on their results of operations and financial
condition and may be restricted by, among other things, applicable corporate and other laws and regulations and agreements of our subsidiaries. In addition, our ability to pay dividends will be subject to legal and other requirements at the holding company level.
During 2003 and 2002, due to Banco Galicia's adverse financial condition, we did not receive any dividends from Banco Galicia. Banco Galicia is prohibited from paying any cash dividends or making any advances, loans or capital contributions to us, its other affiliates or subsidiaries for so long as amounts are due to the Argentine Central Bank for liquidity support assistance. Furthermore, Banco Galicia is restricted in paying dividends since under Argentine Central Bank regulations it must reduce its retained earnings available to be distributed as cash dividends by the difference between the market value and the carrying value of the compensatory and hedge bonds, after netting the legal reserve and other reserves established by Banco Galicia's bylaws. Consequently, our ability to distribute cash dividends to our shareholders has been, and continues to be, materially and adversely affected.
Last, the loan agreements entered into by Banco Galicia as part of its foreign debt restructuring limit its ability to pay dividends on its capital stock. See Item 8. "Financial Information -- Dividend Policy and Dividends -- Dividend Policy."
WE MAY OPERATE FINANCE-RELATED BUSINESSES THAT HAVE LITTLE OR NO REGULATORY SUPERVISION
We may operate finance-related businesses outside of Banco Galicia that are not regulated by the Argentine Central Bank. These businesses will be subject only to those regulatory limitations that may be applicable to them. We cannot assure you that we will not enter into businesses that have little or no regulatory supervision or that entail greater risks than our existing businesses.
GALICIA RETIRO COMPANIA DE SEGUROS S.A., OUR INDIRECT SUBSIDIARY, COULD FACE ADVERSE FINANCIAL CONSEQUENCES IN THE EVENT THAT SOME OF ITS CUSTOMERS SEEK AND SUBSEQUENTLY OBTAIN DISADVANTAGEOUS JUDICIAL RELIEF
Our indirect insurance subsidiary, Galicia Retiro Compania de Seguros S.A. ("Galicia Retiro"), could face adverse financial consequences if certain of its customers who did not participate in its restructuring plan described below seek and subsequently obtain disadvantageous judicial relief.
In order to address the adverse financial consequences caused by asymmetric pesification of the dollar-denominated liabilities and assets of Galicia Retiro and, in particular, in order to avoid a potential liquidity shortfall in the repayment of its affected dollar-denominated liabilities, Galicia Retiro submitted to the Argentine Superintendency of Insurance a plan to reprogram the repayment schedule of its dollar-denominated annuities. The Argentine Superintendency of Insurance approved this plan on June 12, 2003. On June 30, 2003, Galicia Retiro launched an exchange offer for the reprogramming of these dollar-denominated annuities. The exchange offer expired on August 31, 2003, and resulted in 69% of its customers participating in the voluntary reprogramming (31% of its customers did not participate).
We cannot assure you that a significant number of the customers that abstained from the reprogramming plan will not initiate legal actions and obtain subsequent judgments that could result in adverse financial consequences to Galicia Retiro. Sudamericana Holding S.A., one of our subsidiaries and the controlling shareholder of Galicia Retiro, has committed to make capital contributions to Galicia Retiro of up to Ps. 6.2 million in the event that Galicia Retiro experiences liquidity shortfalls in connection with the satisfaction of its payment obligations under the plan.
ADVERSE MARKET CONDITIONS ARE ALSO HAVING A NEGATIVE IMPACT ON OUR NONBANKING BUSINESSES
In addition to the negative impact that the package of economic measures adopted during 2002 has had on Banco Galicia, such measures have profoundly affected the general business environment in Argentina and its level of activity. Although each of our subsidiaries has been affected differently by the difficult financial conditions in Argentina (and the region as a whole), depending on its particular business activity, some effects have been
experienced by all and all of these effects have been adverse. For a discussion on the negative impact of these economic measures on Banco Galicia, see " -- Risk Factors Relating to the Bank."
WE ARE SUBJECT TO CORPORATE DISCLOSURE AND ACCOUNTING STANDARDS THAT MAY LIMIT THE INFORMATION AVAILABLE TO OUR SHAREHOLDERS
A principal objective of the securities laws of the United States, Argentina and other countries is to promote full and fair disclosure of all material information of companies issuing securities. However, there may be less publicly available information about us than is regularly published by or about listed companies in certain countries with highly developed capital markets, such as the United States. While we are subject to the periodic reporting requirements of the Securities Exchange Act of 1934, the periodic disclosure required of non-U.S. issuers under the U.S. Exchange Act is more limited than the periodic disclosure required of U.S. issuers. Furthermore, Grupo Galicia is not required to comply with the U.S. Securities and Exchange Commission ("SEC") proxy rules in connection with shareholders' meetings.
We maintain our financial books and records in pesos and prepare our financial statements in conformity with Argentine Banking GAAP, which differs in certain respects from Argentine GAAP and U.S. GAAP.
OUR SHAREHOLDERS MAY BE SUBJECT TO LIABILITY FOR CERTAIN VOTES OF THEIR SECURITIES
Our shareholders are not liable for our obligations. Instead, shareholders are generally liable only for the payment of the shares they subscribe. However, shareholders who have a conflict of interest with us and who do not abstain from voting may be held liable for damages to us. Also, shareholders who willfully or negligently vote in favor of a resolution that is subsequently declared void by a court as contrary to Argentine law or our bylaws may be held liable for damages to us or to other third parties, including other shareholders.
U.S. HOLDERS OF OUR CLASS B SHARES MAY NOT BE ABLE TO EXERCISE PREEMPTIVE AND ACCRETION RIGHTS
Under Argentine law, holders of our class B shares have preemptive and accretion rights with respect to those shares (including shares underlying our ADSs). United States holders of our class B shares may not be able to exercise those rights unless a registration statement under the Securities Act of 1933 is effective with respect to those rights or an exemption from the registration requirements of the Securities Act is available. We are not obligated to file a registration statement with respect to those rights or the shares related to those rights. We cannot assure you that we will file such a registration statement or that an exemption from registration will be available. Unless those shares are registered or an exemption from registration applies, a United States holder of class B shares (including those underlying our ADSs) may receive only the net proceeds from those preemptive rights if those rights can be sold.
AN ACTIVE PUBLIC MARKET FOR OUR CLASS B SHARES MAY NOT CONTINUE TO EXIST
Although our class B shares are currently traded on the Buenos Aires Stock Exchange, the Cordoba Stock Exchange and the Nasdaq SmallCap Market (in the case of our ADSs), we cannot assure you that these public markets for our shares will continue to exist in the future.
RISK FACTORS RELATING TO ARGENTINA
Substantially all of our operations, property and customers are located in Argentina. Accordingly, the quality of our loan portfolio and our financial condition and results of operations depend to a significant extent on macroeconomic and political conditions prevailing from time to time in Argentina. The political and economic crisis of late 2001 and early 2002 in Argentina and the Argentine government's actions to address this crisis, which are described in greater detail below and under Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003," have had and could continue to have a material adverse effect on our business, financial condition and results of operations.
THE CURRENT GROWTH AND STABILIZATION MAY NOT BE SUSTAINABLE, WHICH COULD ADVERSELY AFFECT THE ECONOMY AND THE FINANCIAL SYSTEM
During 2001 and 2002, Argentina went through a period of great political, economic and social instability, leading to the early resignation of President de la Rua in December 2001, the default on part of Argentina's sovereign debt and the devaluation of the Argentine peso in January 2002 after more than 10 years of fixed exchange-rate parity with the U.S. dollar. Following the appointment of Eduardo Duhalde as president in early 2002, the Argentine government undertook a number of far-reaching initiatives that radically changed the monetary and foreign exchange regime of the country and the regulatory environment for doing business in Argentina for all sectors of activity, including the financial sector. The impact of these measures on the Argentine economy was significant and remains uncertain in the long run.
The Duhalde administration succeeded in stabilizing the main macroeconomic variables in the second half of 2002. After a virtual collapse as a result of the crisis, Argentina's gross domestic product ("GDP") has grown substantially since the second half of 2002, in the broader context of a favorable world economy. The current president, Nestor Kirchner, while highly critical of certain policies followed in the 1990s, has not yet unveiled a comprehensive economic program. The economic policy of the government has consisted mainly of administering the crisis through monetary and fiscal policies and has not included structural reforms considered necessary to support long-term economic growth. In addition, while in September 2003 and June 2004, the government made public announcements regarding possible terms for a restructuring of its foreign debt with private creditors, the final terms of the restructuring and the timing of that restructuring remain uncertain.
If the Kirchner administration is not capable of implementing economic policies needed to turn the economic growth Argentina is experiencing into sustainable development in the long run, there is considerable risk that political and economic instability will increase. This would likely have a negative impact on the Argentine economy and on the financial system, including us and Banco Galicia. In addition, we cannot assure you that the economy will not suffer additional shocks, especially if political pressure in Argentina inhibits the implementation of economic policies designed to generate growth and enhance consumer and investor confidence.
ARGENTINA'S INSOLVENCY AND FAILURE TO RESTRUCTURE ITS SOVEREIGN DEBT COULD PREVENT ECONOMIC GROWTH
On December 23, 2001, Argentina declared the suspension of payments on its sovereign debt, except for debt owed to multilateral credit agencies. Although Argentina did not default on its debt with multilateral agency creditors, during most of 2002 and the beginning of 2003, it had numerous rounds of negotiations with the International Monetary Fund (the "IMF") regarding Argentina's economic program and the medium-term refinancing of its debt with the IMF. In spite of the medium-term agreement reached by the Argentine government with the IMF in September 2003, the lack of a strong IMF program may adversely affect Argentina's ability to restructure its approximately US$100 billion of defaulted debt with private creditors. Argentina's access to the voluntary international credit market is generally viewed as dependent on the satisfactory resolution of this restructuring.
Uncertainties regarding the government's debt restructuring and the adoption of certain measures affecting key sectors of the economy such as the utility companies and the financial system have a significant impact on the private sector's ability to grow and invest. If the inability of the Argentine government and the private sector to complete the restructuring of outstanding claims and to access foreign financing continues, the fiscal situation of the country could be severely affected, undermining the ability of the government to implement adequate economic policies (including structural reforms) and preventing the private sector from reembarking on a positive investment cycle. If economic growth fails to materialize in the medium and long term, political and economic volatility are likely to recur. This would most likely negatively and materially impact the different entities operating in Argentina, including the financial system, us and Banco Galicia.
VOLATILITY OF THE REGULATORY ENVIRONMENT COULD CONTINUE TO BE HIGH AND FUTURE ARGENTINE GOVERNMENTAL POLICIES COULD AFFECT THE ECONOMY AS A WHOLE AS WELL AS FINANCIAL INSTITUTIONS AND BANCO GALICIA
The Argentine government has historically exercised significant influence over the economy, and financial institutions in particular have operated in a highly regulated environment for extended periods of time. Since
December 2001, the Argentine government has promulgated numerous, far-reaching and not always consistent laws and regulations affecting the economy in general as well as financial institutions in particular. Laws and regulations currently governing the economy or the financial sector may continue to change in the future, particularly given that important structural reforms have not been undertaken. We cannot assure you that future changes in the regulatory environment and government policies will not adversely affect financial institutions in Argentina, including Banco Galicia, as well as its business, financial condition or results of operations or its ability to honor its foreign currency-denominated debt obligations. The lack of a clear and stable regulatory environment imposes significant limitations on the operation of the banking system, including Banco Galicia, and creates uncertainties as to our future financial condition and results of operations.
INFLATION MAY RISE FROM CURRENT LEVELS AND FURTHER UNDERMINE THE ECONOMY
Following the decision in January 2002 to abandon the fixed exchange rate regime set forth in the Convertibility Law, the devaluation of the peso created pressure on the domestic price system and generated inflation in 2002 after several years of price stability and, in prior years, price deflation. During 2002, wholesale inflation reached a rate of approximately 118.4% and consumer prices rose 40.95%, although the rate of inflation decreased during the second half of the year. In 2003, consumer prices increased 3.7%, and wholesale prices increased 2.0%. In the first five months of 2004, consumer prices increased 2.7% and wholesale prices 3.9%.
Given the uncertainties regarding the government's future policies, we can give no assurance that the value of the peso will remain stable or that inflation will not recur. In the past, inflation has materially undermined the Argentine economy and the government's ability to create conditions that would permit growth. In addition, high inflation or high volatility in inflation rates would negatively and materially affect the business volume of the financial system and preclude it from resuming financial intermediation activities. This could be expected in turn to negatively affect the level of economic activity and employment. High inflation would also undermine Argentina's foreign competitiveness by diluting the effects of peso devaluation, with the same negative effects on the level of economic activity and employment. We cannot assure you that higher rates of inflation will not negatively affect the Argentine economy in the future.
SIGNIFICANT FLUCTUATION IN THE VALUE OF THE PESO WOULD ADVERSELY AFFECT THE ARGENTINE ECONOMY
The devaluation of the peso on January 7, 2002, resulted in a 240% increase in the nominal exchange rate of the peso versus the U.S. dollar during 2002. In 2003, the peso appreciated and the exchange rate decreased 12.8%. Despite the positive effects of the real depreciation of the peso on the competitiveness of certain sectors of the Argentine economy, the depreciation has had far-reaching negative impacts on the Argentine economy and on businesses, and individuals' financial condition. The devaluation of the peso has had a negative impact on the ability of Argentine businesses to honor their foreign debt, led to very high inflation in 2002, strongly reduced real wages, had a negative impact on businesses whose activity is dependent on the domestic market demand, such as utilities and the financial industry and adversely affected the government's ability to honor its foreign debt obligations.
During 2003 and 2004, the peso recovered a part of its value versus the dollar. Among other reasons, this appreciation was the result of reduced imports and the lack of local demand for dollars resulting in the government's continued default on part of its foreign debt as well as the default by numerous private-sector companies on their payments to foreign creditors. If imports were to remain low and the restructuring of the Argentine sovereign and private-sector debt currently in default were not to occur or were substantially delayed, the combination of a strong trade surplus and controls over the foreign exchange market (still outstanding even if substantially relaxed) could result in a further real appreciation of the peso. In the short term, a significant real appreciation of the peso would adversely affect exports and reduce the Argentine public sector's revenues by reducing tax collection in real terms, given the strong reliance of the public sector on taxes on exports. The government would have to identify other sources of revenues or reduce spending to close the fiscal gap resulting from decreasing export tax receipts and could turn to printing money. Tax increases and/or inflation could prompt recessionary pressures. See " -- Inflation may rise from current levels and further undermine the economy."
In addition, the appreciation of the peso against the U.S. dollar negatively impacts the financial condition of entities with long foreign currency positions (i.e., where the amount of foreign currency-denominated assets exceeds
foreign currency-denominated liabilities), such as Banco Galicia. See " -- Risk Factors Relating to the Bank -- For the foreseeable future, the Bank could have limitations on its ability to manage effectively its assets and liabilities so as to minimize risks resulting from mismatches in terms of currencies, maturities and yields."
Therefore, significant fluctuations in the value of the peso would have significant adverse effects on the Argentine economy and on our financial condition and results of operations. We cannot assure you that future polices of the Argentine government will be successful in stabilizing the value of the peso.
THE FOREIGN EXCHANGE MARKET IS SUBJECT TO CONTROLS THAT COULD PREVENT CERTAIN FINANCIAL INSTITUTIONS FROM HONORING THEIR DEBT WITH FOREIGN CREDITORS
On December 3, 2001, most transfers of funds abroad to effect payment of financial indebtedness began to require the prior authorization of the Argentine Central Bank. Foreign exchange controls, which were maintained with certain variations throughout all of 2002, were tightened at the beginning of the second semester of 2002. The existence of such controls and the prevailing significant surplus in the country's trade balance (which resulted in greater availability of foreign currency) contributed to the appreciation of the peso. Beginning in November 2002 and throughout 2003, the Argentine Central Bank progressively eased most of the restrictions imposed on the foreign exchange market.
We cannot assure you that the Argentine Central Bank will continue to ease restrictions on the foreign exchange market or that it will not implement more restrictive rules in the future. If the Argentine Central Bank maintains the current restrictions or if it reinstates more restrictive rules, financial institutions, including the Bank, may face difficulties in making transfers of U.S. dollars abroad for payment of their financial obligations.
DUE TO THE CURRENT SOCIAL AND POLITICAL CRISIS, INVESTING IN ARGENTINA ENTAILS MANY OTHER RISKS
Investing in Argentina also involves the following risks:
- civil unrest, rioting, looting, nationwide protests, widespread social unrest and strikes;
- expropriation, nationalization and forced renegotiation or modification of existing contracts;
- taxation policies, including royalty and tax increases and retroactive tax claims; and
- changes in laws and policies of the United States affecting foreign trade, taxation and investment.
FINANCIAL MARKETS IN ARGENTINA COULD BE ADVERSELY AFFECTED BY DEVELOPMENTS IN OTHER EMERGING MARKETS
Financial and securities markets in Argentina are influenced, to varying degrees, by economic and market conditions in other emerging market countries. Although economic conditions vary from country to country, investors' reactions to the events occurring in one country may substantially affect securities from issuers in other countries, including Argentina. We cannot assure you that Argentina's economy will not be adversely impacted by events affecting other emerging markets. The political and economic events that occurred in Mexico in 1994 and the collapse of several Asian economies between 1997 and 1998, to cite two well-known downturns of the 1990s, both adversely impacted the Argentine economy. These and similar developments can be expected to affect the Argentine economy in the future.
RISK FACTORS RELATING TO THE ARGENTINE FINANCIAL SYSTEM
THE RECOVERY OF THE FINANCIAL SYSTEM IS DEPENDENT UPON THE ABILITY OF FINANCIAL INSTITUTIONS TO REGAIN THE CONFIDENCE OF DEPOSITORS
The massive withdrawal of deposits experienced by the Argentine financial system and the Bank during 2001 and the first half of 2002 were largely due to the lack of confidence of depositors in the Argentine government's ability to repay its debt (including its debt within the financial system) and to maintain peso-dollar
parity in the context of its solvency crisis. The range of measures implemented by the Argentine government in the last quarter of 2001 and during the first half of 2002 further undermined the confidence of depositors and investors in the Argentine financial system and in all financial institutions. In addition, the measures taken by the government to protect the solvency of the banking system generated significant opposition among depositors frustrated by losses incurred on their savings.
The recovery of the financial system and the Bank depends in part on the ability of Argentine financial institutions to regain the confidence of depositors. Although the financial system as a whole has seen a substantial recovery in deposits (mostly transactional deposits) in 2002 and 2003, we cannot assure you that this trend will continue or that the deposit base of the Argentine financial system, including the Bank's, will not be affected in the future by adverse economic, social and political events. Such volatility will have a direct impact on the manner in which financial institutions within the financial system, including the Bank, conduct their business and on their ability to operate as financial intermediaries.
RECENT ARGENTINE ECONOMIC POLICIES CREATE UNCERTAINTY AS TO THE FUTURE PROFILE AND ACTIVITIES OF THE BANKING SYSTEM
As a result of the 2001 and 2002 crisis, the financial system practically ceased acting as an intermediary between savings and credit. The depth of the crisis and the effect of the crisis on depositors' confidence in the financial system create significant uncertainties as to the likelihood that the financial system will fully recover its ability to act as an intermediary between savings and credit in the short or medium term. Despite certain signs that loan origination has begun to resume, the period of time in which banking activity in Argentina will most likely be limited to providing a narrow range of commercial banking services remains uncertain.
Even though deposits in the financial system and with the Bank resumed growth in mid-2002, most of these new deposits are either sight or very short-term time deposits. The increase in deposits, particularly longer term time deposits, would have to persist over time to allow financial institutions to rely on deposits as a source of funding capable of supporting an adequate level of financial intermediation activity. This would require the public to regain confidence in the Argentine financial system. At the same time, it would also require an increase in the public's demand for credit, which is in turn dependent on the removal of uncertainty regarding Argentina's economic future. We cannot assure you that these trends will materialize (or, if they do, that these developments will occur at the requisite pace) so as to allow financial intermediation activities to resume and attain the volume necessary to improve the income generation capacity of Argentine financial institutions, including the Bank.
Under these circumstances, for an undetermined period of time, the scale of operations of Argentine-based financial institutions, including the Bank, their business volume, the amount of their assets and liabilities and their income generation capacity will be much lower than precrisis levels. We cannot assure you that this will change in the future.
DETERIORATION OF FINANCIAL INSTITUTIONS' ASSET QUALITY DUE TO THE ECONOMIC CRISIS MAY AFFECT THEIR FINANCIAL CONDITION AND THEIR INCOME GENERATION CAPACITY
The capacity of Argentine public- and private-sector debtors to repay their loans, already impaired by the deep and persistent recession that began in the second half of 1998, deteriorated significantly in 2002 as a result of the economic crisis. The Bank established allowances for loan losses for significant amounts in 2002 to cover the risks inherent to its portfolio of loans to the private sector. In 2003, the quality of the Bank's loan portfolio improved from 2002 levels as a result of high GDP growth and a better overall economic environment. However, this improvement did not fully offset the deterioration caused by the crisis in the quality of the assets of financial institutions with a significant exposure to Argentine debtors. We cannot assure you that the current improvement of the quality of the financial system's private-sector loan portfolio will continue.
In addition, currently, the financial system's assets, as well as those of the Bank, include a substantial exposure to debt instruments of the Argentine public sector. The Argentine public sector is currently in default on part of its foreign debt, including the Argentine Republic External Notes held by the Bank. Argentine public-sector solvency in the long run is today uncertain, given that its defaulted foreign debt has not yet been restructured and that an economic policy with long-term objectives has not yet been defined. Although the Argentine government is
current on the Bonos del Gobierno Nacional due August 3, 2012, issued by the Republic of Argentina ("BODEN 2012") and promissory notes secured by tax collections known as prestamos garantizados ("secured loans") held by banks, we cannot assure you that the Argentine government will be able to service its internal and external debt over the medium and long terms. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Consolidated Assets."
Currently, to a large extent, the value of a large portion of the assets held by Argentine banks, as well as those banks' income generation capacity, is dependent on the Argentine public sector's repayment capacity, which is currently dependent on the Argentine government's ability to restructure its foreign debt and to establish an economic policy that is successful in promoting sustainable economic growth in the long run. See " -- Risk Factors Relating to Argentina -- Argentina's insolvency and failure to restructure its sovereign debt could prevent economic growth."
AN INCREASING NUMBER OF JUDGMENTS AGAINST FINANCIAL INSTITUTIONS, IN CONNECTION WITH THE CORRALON, MAY RESULT IN FURTHER DETERIORATION OF FINANCIAL INSTITUTIONS' DEPOSIT BASE AND LIQUIDITY, INCLUDING THOSE OF THE BANK
As a consequence of measures adopted by the government in connection with the pesification of deposits originally denominated in dollars and the restructuring of bank deposits, since the beginning of 2002, individuals and legal entities have initiated a significant number of legal actions against financial institutions, including the Bank, on the basis that these measures violated constitutional and other rights. These actions ("amparo claims") resulted in a significant withdrawal of deposits from the financial system and the Bank. Amparo claims have also resulted in significant losses for financial institutions, including the Bank, because financial institutions have had to reimburse restructured deposits (mostly dollar-denominated deposits before pesification) at the market exchange rate rather than at the Ps. 1.40 per U.S. dollar exchange rate (plus the CER adjustment and interest accrued) at which deposits were pesified and booked. These losses have been deferred, but Argentine Central Bank Communique "A" 3916 established that the deferred asset must be amortized. In addition, the government has not provided compensation for these losses, no regulations have been issued regarding such compensation and the Supreme Court has not yet resolved the constitutionality of the pesification measures.
Although restructured deposits have decreased significantly as depositors have exchanged restructured deposits for government bonds and although the peso has appreciated significantly in the recent months, we cannot assure you that an increasing number of judgments against financial institutions, including the Bank, will not be obtained, leading to additional erosion of the deposit base and imposing a further demand on the liquidity of financial institutions, including the Bank.
THE LACK OF COMPENSATION TO FINANCIAL INSTITUTIONS FOR CERTAIN LOSSES GENERATED BY THE GOVERNMENT'S ECONOMIC POLICY COULD BE DETRIMENTAL TO THEIR FINANCIAL CONDITION, INCLUDING THAT OF THE BANK
Certain measures taken by the Argentine government to address the economic crisis in 2002 resulted in significant losses to the financial system. In response, the Argentine authorities have provided that financial institutions can seek compensation from the government for some but not all of those losses. In fact, to date, the government has not recognized claims brought by financial institutions for losses resulting from amparo claims or for the effects of asymmetric pesification on the balance sheet of nonbanking subsidiaries with activities complementary to those of the parent financial institution (such as the regional credit card companies in which the Bank holds a controlling interest). See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003."
With respect to the differences generated by the payments by the Bank pursuant to amparo claims, as of December 31, 2003, the Bank had recorded an intangible asset amounting to Ps. 487.0 million, net of the amortization mandated by the Argentine Central Bank, on account of its right to receive compensation for having had to make payments pursuant to judicial orders relating to the amparo claims for amounts higher than those provided for by the pesification decrees. The decision by the government to provide compensation is still pending.
With respect to measures establishing the use of different indexes (the CER and the CVS) to adjust the principal of certain assets and liabilities of financial institutions ("asymmetric indexation"), on November 14, 2003, the Argentine government enacted Law No. 25,796, providing compensation for the negative effects on financial institutions' financial condition arising from these measures. Subsequently, through the issuance of different rules,
including Resolution No. 302/04 of the Ministry of Economy, the Ministry of Economy and the Argentine Central Bank have administered Law No. 25,796, in a way that, in the Bank's opinion, is contrary to its provisions. On May 6, 2004, the Bank presented a letter to the executive branch, the Ministry of Economy and the Argentine Central Bank reiterating the claim for compensation that it had made on December 30, 2003. On May 18, 2004, the deadline for financial institutions to opt into the compensation regime established by the government, the Bank did not request to do so but rather restated its right to be compensated for the negative effects of asymmetric indexation, formally challenging Resolution No. 302/04 of the Ministry of Economy. Based on the provisions of Law No. 25,769, as of December 31, 2003, the Bank had recorded Ps. 102.7 million under "Other Receivables Resulting from Financial Intermediation" on account of its right to receive compensation from the government for asymmetric indexation.
See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Compensation to Financial Institutions -- For Asymmetric Indexation and for Differences Related to Amparo Claims" and Item 4. "Information on the Company -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Treatment of Losses in Connection with Amparo Claims."
We cannot assure you that the government will provide compensation to financial institutions, such as the Bank, for any such potential losses. The failure of the government to compensate these potential losses would have a negative effect on our financial condition.
NEW LIMITATIONS TO CREDITORS' RIGHTS IN ARGENTINA AND TO THE ABILITY TO FORECLOSE ON CERTAIN GUARANTEES AND COLLATERAL MAY ADVERSELY IMPACT FINANCIAL INSTITUTIONS
In 2002, the Argentine government passed various laws and regulations limiting the ability of creditors to foreclose on collateral and to exercise their rights pursuant to guarantees and similar instruments upon the occurrence of a default by a debtor under a financing agreement. Such limitations have restricted Argentine creditors, such as the Bank, from initiating collection actions or lawsuits to recover on defaulted loans. Even if these rules ceased to be applicable, we cannot assure you that the Argentine government will not pass new rules and regulations restricting the ability of creditors to enforce their rights pursuant to debt agreements, guarantees and similar instruments.
RISK FACTORS RELATING TO THE BANK
FOR THE FORESEEABLE FUTURE, THE BANK COULD HAVE LIMITATIONS ON ITS ABILITY TO MANAGE EFFECTIVELY ITS ASSETS AND LIABILITIES SO AS TO MINIMIZE RISKS RESULTING FROM MISMATCHES IN TERMS OF CURRENCIES, MATURITIES AND YIELDS
In the course of implementing asymmetric pesification, the government modified the yields of the assets and the cost of the liabilities that were pesified. Fixed maximum and minimum interest rates were established for pesified assets and liabilities, respectively. In addition, the principal of those assets and liabilities was tied to either the CER or the CVS, and, in most cases, maturities were extended. The terms and conditions of peso-denominated assets with the public sector and certain peso-denominated deposits were also modified.
The amendments and modifications of the Bank's assets and liabilities resulting from the government measures to address the economic crisis have created mismatches between its assets and liabilities in terms of currency, maturity and yield. Even though the Bank has been successful in the restructuring of its foreign debt and its debt with the Argentine Central Bank, for the foreseeable future, it will have limitations on its ability to manage effectively its assets and liabilities so as to minimize risks resulting from mismatches in terms of currencies and yields. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Currency Composition of Our Balance Sheet" and Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003" in this annual report.
THE BANK'S NEW DEBT AGREEMENTS RESTRICT ITS ABILITY TO TAKE SOME ACTIONS
The new loan agreements and indenture entered into by the Bank as part of its foreign debt restructuring, include a number of significant covenants that, among other things, will restrict the Bank's ability to:
- pay dividends on stock or purchase its stock or the stock of its subsidiaries;
- make certain types of investments;
- use the proceeds of the sale of certain assets or the issuance of debt or equity securities;
- engage in certain transactions with affiliates; and
- engage in nonfinancial business activities.
Some of these agreements also require the Bank to maintain specified financial ratios. A breach of any of these covenants or the Bank's inability to maintain the required ratios could result in a default in respect of the related indebtedness. In the event of a default, the relevant lenders could elect, among other options, to declare the indebtedness, together with accrued interest and other fees, to be immediately due and payable.
A MAJORITY OF THE BANK'S ASSETS ARE CONCENTRATED IN ARGENTINE PUBLIC-SECTOR DEBT INSTRUMENTS
As of December 31, 2003, the Bank's exposure to the Argentine public sector, including the compensatory and hedge bonds (BODEN 2012 received or to be received by the Bank in accordance with applicable regulations as compensation for asymmetric pesification) amounted to Ps. 17,175.9 million, representing approximately 75.6% of total assets. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Exposure to the Argentine Public Sector" and Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Compensation to Financial Institutions" in this annual report. Consequently, the value of the Bank's assets, its income and cash flow generation capacity and future financial condition are heavily dependent on the Argentine government's ability to comply with its payment obligations. In turn, the ability of the Argentine government to comply with its payment obligations is dependent on, among other things, the successful outcome of the restructuring of the Argentine government's foreign debt, the result of which remains uncertain, and its ability to establish an economic policy that is successful in promoting sustainable economic growth in the long run.
In addition, although there is a trading market for the BODEN 2012, the Bank may be limited in its ability to dispose of many of its government assets.
THE BANK HAS RECORDED BODEN 2012 AND ITS RIGHTS TO RECEIVE OR ACQUIRE FUTURE BODEN 2012 AS ASSETS HAVING A VALUE EQUAL TO THE FACE AMOUNT OF THE BODEN 2012 RECEIVED OR TO BE RECEIVED AND ACQUIRED, WHICH DOES NOT REFLECT ITS ACTUAL MARKET VALUE
Although, in accordance with Argentine Central Bank accounting rules, the Bank has recorded the BODEN 2012 already received and its right to acquire BODEN 2012 in the future as assets having a value equal to 100% of the face value of such BODEN 2012, the market value of these assets is significantly lower. The BODEN 2012 are unsecured debt obligations of the Argentine government, which is currently in payment default on a substantial portion of its indebtedness. As of June 25, 2004, the BODEN 2012 were not rated and were trading in the secondary market at a price of approximately US$66.90 for every US$100 of face value.
THERE IS A POSSIBILITY THAT THE BANK WILL RECEIVE LESS BODEN 2012 FROM THE ARGENTINE GOVERNMENT THAN IT BELIEVES IT IS ENTITLED TO RECEIVE
As of December 31, 2003, the Bank had recorded Ps. 1,610.0 million on account of that part of the compensatory bond that was actually received from the Argentine Central Bank. In addition, in accordance with applicable rules, the Bank determined that it is entitled to receive Ps. 1,013.9 million of additional compensatory bond and Ps. 3,615.7 million of a hedge bond it is also entitled to acquire from the government with Argentine
Central Bank financing. The amount of compensatory and hedge bonds represented, as of December 31, 2003, 27.5% of the Bank's assets.
The Argentine Central Bank is required to approve the Bank's claim for compensatory and hedge bonds prior to their full delivery to the Bank. In 2003, the Argentine Central Bank reviewed the Bank's application for both compensatory and hedge bonds, and the Bank has made adjustments to the carrying value of its receivables for bonds to be received.
The actual amount of BODEN 2012 the Bank ultimately receives as compensation for the effects of asymmetric pesification and the actual amount of debt it ultimately incurs from the Argentine Central Bank to purchase the hedge bond remain subject to negotiation with the Argentine Central Bank. As a result, the amount of compensation the Bank ultimately receives and the related liabilities it incurs may differ from the amounts recorded on its balance sheet, and these differences could adversely affect our financial condition.
THE BODEN 2012 MAY BE SUBJECT TO SUBSEQUENT RENEGOTIATION
The Argentine government is in the process of restructuring most of its foreign debt. We cannot assure you that this process will not ultimately result in a requirement or decision by the Argentine government to restructure the BODEN 2012 on terms less favorable than those currently in place.
FAILURE BY GALICIA URUGUAY TO REPAY DEPOSITS RESTRUCTURED IN 2002 IN ACCORDANCE WITH THEIR TERMS COULD ADVERSELY AFFECT THE CONFIDENCE OF OUR DEPOSITORS
Galicia Uruguay completed the restructuring of its deposits during 2002. It expects to satisfy its obligations arising from the restructuring of its deposits with funds provided by payments in respect of its loan portfolio, repayment by the Bank of its debt with Galicia Uruguay and the BODEN 2012 pertaining to Galicia Uruguay on account of the pesification of some of its loans and recorded by the Bank in Argentina.
In early January 2003 and in September 2003, Galicia Uruguay paid the first and second installments, respectively, contemplated in its deposit restructuring agreement, and in September 2003 and March 2004, Galicia Uruguay completed two offers to exchange restructured deposits for cash, new negotiable obligations it issued and BODEN 2012. As a result, the amount of Galicia Uruguay's indebtedness to its depositors has declined substantially. In addition, Galicia Uruguay has received authorization from the Central Bank of Uruguay to create a trust that will receive its assets, including the BODEN 2012 referred to above, to secure the repayment of its indebtedness to its depositors.
The failure by Galicia Uruguay to honor its restructured liabilities on a timely basis would likely have a significant negative impact on the Bank's operations in Argentina, with a loss of reputation, customers and deposits, given that the two banks share their customer base to a large extent. In such an event, our financial condition and results of operations would likely be materially and adversely affected. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Galicia Capitalization and Liquidity Plan," Item 4. "Information on the Company -- Selected Statistical Information -- Composition of Deposits," and Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Contractual Obligations."
THE BANK'S FUTURE BUSINESS ACTIVITIES MAY BE SUBSTANTIALLY DIFFERENT THAN THOSE UNDERTAKEN BY THE BANK HISTORICALLY
As a result of the political and economic crisis in Argentina that began in late 2001 and the significant adverse effects that that crisis has had on the Bank and other financial institutions operating in Argentina, we cannot assure you that the Bank will be able to undertake the same type of business activities in the future or maintain the same level of market activity that it enjoyed in periods prior to December 2001. Therefore, the Bank's future business activities, as well as the levels of those business activities, and the Bank's market share may differ substantially from its business and levels at December 31, 2001, or in precrisis periods.
IT MAY BE DIFFICULT FOR THE BANK TO IMPLEMENT ITS BUSINESS STRATEGY SUCCESSFULLY
The current economic situation in Argentina makes it difficult to predict whether the Bank will be able to implement successfully its business strategy, including increasing fee income and loan origination so as to generate sufficient revenue to cover expenses. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Banco Galicia's Strategy." Demand for fee-related products and services as well as credit demand is increasing in Argentina, together with the improved situation of the economy, but the economy as a whole and the relevant markets have not stabilized enough to be certain that demand will continue to grow. Therefore, we cannot assure you that the Bank's business strategy will in fact be successful or that continuing or new events in Argentina will not adversely affect the Argentine economy so as to call into question the Bank's ability to implement its business strategy successfully and to regain full financial stability.
ITEM 4. INFORMATION ON THE COMPANY
ORGANIZATION
We were incorporated on September 14, 1999, as a stock corporation (sociedad anonima) under the laws of Argentina. Our domicile is in Buenos Aires, Argentina. Under our bylaws, our corporate duration is until June 30, 2100. Our duration can be extended by resolution taken at a general extraordinary shareholders' meeting. Our principal executive offices are located at Teniente General Juan D. Peron 456, Second Floor, (1038) Buenos Aires, Argentina. Our telephone number is (54-11) 4343-7528.
Our agent for service of process in the United States is C T Corporation System, presently located at 111 Eighth Avenue, 13th Floor, New York, New York 10011.
ORGANIZATIONAL STRUCTURE
The following chart illustrates our organizational structure as of December 31, 2003. Percentages indicate the ownership interests held. All of the companies shown in the chart are incorporated in Argentina, except for:
- Banco Galicia Uruguay S.A., incorporated in Uruguay;
- Galicia Pension Fund Ltd. and Banco de Galicia (Cayman) Ltd. ("Galicia Cayman"), incorporated in the Cayman Islands and currently in provisional liquidation;
- Net Investment BV (Netherlands), incorporated in the Netherlands; and
- Tradecom Holanda, incorporated in the Netherlands.
Since February 13, 2002, Galicia Uruguay's activities have been suspended. See " -- Business Overview -- Banco Galicia -- Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd."
[ORGANIZATIONAL STRUCTURE CHART DEPICTING OUR SUBSIDIARIES:
Galicia Warrants S.A.
Sudamericana Holding S.A.
Net Investment S.A.
Banco de Galicia y Buenos Aires S.A.
Banco Galicia Uruguay S.A.
Banco de Galicia (Cayman) Ltd. (In Provisional Liquidation)
Galicia Pension Fund Ltd.
Galicia Administradora de Fondos S.A.
Tarjetas Regionales S.A.
Tarjeta Naranja S.A.
Tarjetas Cuyanas S.A.
Tarjetas del Mar S.A.
Galicia Vida Compania de Seguros S.A.
Galicia Retiro Compania de Seguros S.A.
Instituto de Salta Compania de Seguros de Vida S.A.
Medigap Salud S.A.
Sudamericana Asesores de Seguros S.A.
Galicia Patrimoniales Compania de Seguros S.A.
Duenovende S.A. (In Liquidation)
B2 Agro S.A.
Net Investment BV (Netherlands)
Tradecom International (Netherlands)
Tradecom Argentina S.A.
Galicia Capital Markets S.A.
Galicia Valores S.A. Sociedad de Bolsa
Galicia Factoring y Leasing S.A.
Agro Galicia S.A.
Banelco S.A.
Galicia Immobiliaria S.A.
Privatized Companies(1)
Other Subsidiaries(2)]
1) Aguas Provinciales de Santa Fe S.A. 12.5%; Inversora Diamante S.A. 12.5%;
Electrigal S.A. 12.5%; Inversora Nihuiles S.A. 12.4991%; Correo Argentino
S.A. 11.77%; Aguas Cordobesas S.A. 10.833%; Aguas Argentinas S.A. 8.26%;
A.E.C. S.A. 6.965%, Caminos de las Sierras S.A. 2.4835%.
2) Coelsa 13.682%; Alfer S.A. 9.8024%; Corporacion Financiera S.A. 9.09%; Interbanking S.A. 8.33%; Seguros de Depositos S.A. ("Sedesa") 7.2296%; Finanban S.A. 6.67%; Ocye S.A. 6.0%; Argencontrol S.A. 5.766%; Visa 5.0%; Mercado Abierto Electronico S.A. 1.4851%; AIG-GE Capital Latin American Infrastructure Fund LP 1.396214%; Banco Latinoamericano de Exportaciones S.A. 0.22%; S.W.I.F.T. S.C. 0.02%.
When we refer to our business or when we use the terms "Grupo Galicia" or the "Group," we mean the businesses of Grupo Galicia, the holding company, Galicia Warrants S.A., Sudamericana Holding S.A. and its subsidiaries, Net Investments S.A. and its subsidiaries, and Banco Galicia consolidated with Galicia Uruguay and its subsidiaries, Tarjetas Regionales S.A. and its subsidiaries, and the following consolidated subsidiaries: Galicia Valores S.A., Sociedad de Bolsa, Galicia Capital Markets S.A. and its subsidiaries, Galicia Factoring y Leasing S.A. and AgroGalicia S.A. (collectively, the "Bank" or "Banco Galicia").
HISTORY
We were formed as a financial services holding company to hold all of the shares of capital stock of Banco Galicia held by members of the Escasany, Ayerza and Braun families. We were formed with an initial nominal capital of 24,000 common shares, 12,516 of which were designated class A shares and 11,484 of which were designated as class B shares. Following the formation of Grupo Galicia, the holding companies which held the shares in Banco Galicia on behalf of the Escasany, Ayerza and Braun families were merged into Grupo Galicia. Following the merger, we held 46.34% of the outstanding shares of Banco Galicia. Simultaneously with the merger, we increased our capital from 24,000 to 543,000,000 common shares, 281,221,650 of which were designated as class A shares and 261,778,350 of which were designated as class B shares. Following this capital increase, all of our class A shares were held by EBA Holding S.A., an Argentine corporation that is 100% owned by our controlling shareholders, and our class B shares were held directly by our controlling shareholders in an amount equal to their ownership interests in the holding companies that were merged into Grupo Galicia.
On May 16, 2000, we held an extraordinary shareholders' meeting during which the shareholders unanimously approved a capital increase of up to Ps. 628,704,540 and approved the public offering and listings of our class B shares. All of the new common shares were designated as class B shares, with a par value of Ps. 1.00. During this extraordinary shareholders' meeting, all of our existing shareholders waived their preemptive rights in order to establish the basis for the exchange offer of our shares for Banco Galicia shares. At the same shareholders' meeting, the shareholders determined that the exchange ratio for the exchange offer would be one class B share of Banco Galicia for 2.5 of our class B shares and one ADS of Banco Galicia for one of our ADSs. We completed the exchange offer in July 2000 with a capital increase of Ps. 549,407,017. At the completion of the exchange offer, our only significant asset was our 93.23% interest in Banco Galicia. By the end of 2003, our interest was 93.59% as a result of open-market purchases.
We are a holding company whose corporate purpose is exclusively related to financial services and investment. Under our bylaws, we may not carry out transactions described in the Financial Entities Law (Ley de Entidades Financieras). Therefore, it is not our intention to compete with Banco Galicia. Rather, we seek to broaden and complement Banco Galicia's operations and businesses through holdings in companies and undertakings whose objectives are related to financial activities. Consequently, we operate in financial and related activities that Banco Galicia cannot carry out or in which it can only participate in a limited way or in those activities that would not be profitable for the Bank due to current regulations.
In September 2000, we acquired 87.5% of the capital stock and voting rights of Net Investment S.A., a company in which Banco Galicia holds the remaining 12.5% interest.
In December 2000, we acquired 37.5% Sudamericana Holding S.A., while Banco Galicia purchased 12.5%.
In August 2001, we acquired 87.5% of the capital stock and voting rights of Galicia Warrants S.A., a company in which Banco Galicia holds the remaining 12.5% interest.
In September 2001, we made a new investment in the insurance business by acquiring from Hartford Life International Ltd. (U.S.A.) and Hartford Life Ltd. (Bermuda) 50% of the capital stock and voting rights of Sudamericana Holding S.A. As a result of this transaction, we increased our interest in that company to 87.5%, while the remaining 12.5% continues to belong to Banco Galicia.
CAPITAL INVESTMENTS AND DIVESTITURES
GRUPO GALICIA
During 2003, our only capital contribution was to Net Investment S.A. for Ps. 3.6 million. During 2002, we made capital contributions in the amount of Ps. 4.20 million to Net Investment. During 2001, Grupo Galicia made the following capital investments:
- invested Ps. 5.4 million in aggregate in Banco Galicia through open-market purchases of the Bank's common shares;
- made capital contributions of Ps. 5 million in Net Investment;
- contributed Ps. 0.6 million to BtoB Comercial S.A. and, along with Banco Galicia, assigned along our interests in BtoB Comercial to Net Investment so that the business could be carried out by Tradecom International N.V., in which Net Investment has a minority stake;
- invested Ps. 21.04 million in the insurance business by acquiring from Hartford Life International Ltd. (U.S.A.) and Hartford Life Ltd. (Bermuda) 50% of the capital stock and voting rights of Sudamericana Holding S.A., raising our stake to 87.50% (the remaining 12.50% was held by Banco Galicia).
For 2004, we have budgeted investments amounting to Ps. 0.8 million to be applied to Net Investment.
BANCO GALICIA
During 2003, the Bank's capital expenditures amounted to Ps. 21.2 million, distributed as follows:
- Ps. 2.6 million in fixed assets;
- Ps. 10.3 million in construction in progress; and
- Ps. 8.3 million in intangible assets.
During 2003 the Bank did not make any significant investments or divestitures. The Bank has budgeted capital expenditures for the fiscal year ended December 31, 2004, for the following purposes and amounts:
Construction of the Banco Galicia tower Ps. 48.0 million Hardware, software and system maintenance 29.5 million Other 5.5 million ---------------- Total Ps. 83.0 million |
Banco Galicia expects to finance its capital expenditures from the cash flow derived from operations.
During 2002, the Bank's capital expenditures totaled Ps. 56.2 million, distributed as follows:
- Ps. 12.9 million in fixed assets;
- Ps. 23.6 million in construction in progress; and
- Ps. 19.7 million in intangible assets.
During 2002 the Bank did not make any significant investments or divestitures.
During 2001, the Bank's capital expenditures totaled Ps. 226.9 million, distributed as follows:
- Ps. 79.1 million in fixed assets;
- Ps. 38.1 million in construction in progress; and
- Ps. 109.7 million in intangible assets.
On October 15, 2001, the Bank acquired the assets and liabilities of the retail division of ABN Amro Bank Argentina, principally deposits, mortgage loans, credit cards and insurance policies. The Bank paid US$46 million, of which US$42 million was paid in cash and the remaining US$4 million through an agreement to distribute ABN Amro's financial products. Banco Galicia acquired 22 branches and 270 employees in this transaction.
On March 21, 2001, the Bank's board of directors decided to sell the Bank's equity interest in Banco Barclays e Galicia S.A. (10,449,541 shares equivalent to a 22.71% interest) under the terms of a public tender offer,
which was conducted in Brazil by Barclays Bank plc, to purchase all of the
shares of Banco Barclays e Galicia. The price set by Barclays Bank plc was R$
5.77 (5.77 Brazilian reais) (equivalent to Ps. 2.67 per share at the March 19,
2001, exchange rate of R$ 2.165 per peso and equivalent to Ps. 5.88 per share in
constant pesos of February 28, 2003). The acquisition price was adjusted for
Brazilian inflation (as measured by the Monetary Correction Rate index) between
that date and the settlement date (August 2001). As of December 31, 2000, the
book value of the Bank's interest in Banco Barclays e Galicia S.A. had been Ps.
78.9 million.
OUR STRATEGY
Our main objective is to be one of Argentina's leading comprehensive financial services companies while continuing to strengthen Banco Galicia's position as one of Argentina's leading banks. Our holding company structure enhances the Bank's ability to compete more effectively and to enter into new finance-related businesses (that are restricted to banks by the applicable regulatory framework), and to profit from the trends in the financial industry worldwide. We can summarize our strategy in six main points:
- Establish a platform to enhance value for our shareholders and customers: By facilitating the creation of autonomous businesses, we will be able to leverage the experience and knowledge of the market of our various companies in a more targeted and efficient manner. Furthermore, this platform will provide us with greater flexibility to react to market trends and to respond rapidly to client needs with respect to new products, markets and distribution channels.
- Take advantage of maximum flexibility to enter into potential strategic alliances: By organizing certain of our business lines into separate subsidiaries, we will optimize the potential for strategic alliances in our businesses. This will provide additional flexibility to develop new businesses in the most effective manner.
- Obtain appropriate levels of participation in certain high-growth businesses and take advantage of the potential cross-selling opportunities: The Argentine Central Bank limits the ability of financial institutions to make investments in subsidiaries that develop activities that are considered "noncomplementary" to banking activity. We believe that some of these businesses have future growth potential in Argentina. Unlike Banco Galicia, we have no limits on our investments in noncomplementary businesses such as insurance. Moreover, we have established controlling interests in some of these businesses to leverage Banco Galicia's and other companies' customer bases into cross-selling opportunities.
- Establish a corporate structure by business units: We intend to create an appropriate corporate structure aligned to the evolution of our several business sectors. We expect that this will allow a more accurate assessment of sources of income and cost control, facilitate benchmarking of those businesses against other similar ones and therefore facilitate our commercial effectiveness and efficiency in the use of resources.
- Optimize the capital structure of our subsidiaries: With a structure of separate subsidiaries, we can allocate capital more effectively by designing optimal capital structures for our subsidiaries, thereby reducing their cost of capital and investment and further expanding their growth.
- Adapt the business to current economic conditions: Since January 1, 2002, economic, financial and business conditions have radically changed in Argentina. We are making our best efforts to finance the companies we control with their own respective cash flows and to minimize the need for any cash contributions. In addition, we have suspended the payment of any cash dividends in order to preserve an appropriate level of liquidity in order to fund our own expenses and existing projects.
BUSINESS OVERVIEW
BANCO GALICIA
Overview
In 2001 and 2002, the Bank operated in an economy that was experiencing significant economic difficulties including, among other things, several runs on the financial system's deposits and the deepening of a prolonged
recession. The Argentine economic and financial crisis was aggravated by significant political instability and in 2002 by a radical change in the regulatory framework for doing business in Argentina, both generally and for the financial system in particular. In addition, in 2002, the peso was devalued approximately 70.0%, the financial condition of the public and the private sectors (including businesses as well as individuals) deteriorated and inflation rose.
In 2003, the Bank's financial condition improved along with the overall economic situation in Argentina, and the macroeconomic environment stabilized. In addition, new government regulations were implemented, principally to deal with some of the impacts of the crisis on financial institutions, as more fully described in this annual report. Nevertheless, the improvements in the overall economic environment were not sufficient for large financial institutions such as the Bank to overcome all of the effects of the crisis on their financial condition. As a result, the Bank suffered a Ps. 199.0 million net loss in 2003, which was nonetheless substantially lower than the Ps. 1,184.9 million net loss for 2002. As of December 31, 2003, the Bank's shareholders' equity was Ps. 1,352.8 million, its consolidated assets amounted to Ps. 22,707.8 million, its consolidated net loans were Ps. 10,934.8 million and its consolidated deposits amounted to Ps. 5,595.1 million.
In May 2002, the Bank implemented the Galicia Capitalization and Liquidity Plan, which the Bank designed to address the liquidity shortage caused by the deposit run, the unavailability of other sources of funds and other negative impacts of the Argentine crisis on it. To date, the Bank has successfully implemented the measures contemplated by the Bank's capitalization and liquidity plan as described under " -- Galicia Capitalization and Liquidity Plan."
Following the implementation of its capitalization and liquidity plan, the Bank has seen its deposits in Argentina increase. Based on daily information published by the Argentine Central Bank, as of December 31, 2003, the Bank's estimated deposit market share of "voluntary" deposits in Argentina (i.e., deposits in current and savings accounts and voluntary time deposits) was 4.75% compared to 4.34% as of December 31, 2002.
The Bank is principally engaged in commercial banking and provides a wide variety of banking products and services to large corporations, medium- and small-sized companies and individuals. Depending on the type of customer, these services include personal and corporate loans, deposit-taking, credit and debit cards, residential mortgage loans, fiduciary and custodial services and electronic banking. The Bank is also involved in other finance-related businesses, such as investment banking, insurance distribution and asset management. During 2003, the Bank's lending activity was limited, but currently the Bank is increasingly originating new loans to individuals as well as to the commercial sector.
The Bank provides services through one of the most extensive and diversified distribution platforms of all private-sector banks in Argentina, with 226 full-service branches, 555 automated teller machines ("ATMs") and 524 self-service terminals as of December 31, 2003, along with other electronic banking facilities such as phone banking and e-banking. As of December 31, 2003, our branch network covered all of the Argentine provinces, except for Tierra del Fuego, and all the main cities of Argentina.
Banco Galicia's Strategy
In light of the effects that the 2001 - 2002 Argentine crisis had had on its financial condition and given that the crisis significantly impaired the financial system's ability to act as an intermediary between the public's savings and the supply of credit, the Bank directed its efforts in 2002 toward:
- implementing its capitalization and liquidity plan in order to restore the Bank's liquidity and solvency (explained in more detail below);
- dealing with its portfolio of nonperforming loans, which had increased significantly as a result of the crisis, including ensuring adequate provisions for loan losses;
- focusing more than in the past on the generation of fee income from a variety of transactional financial services;
- improving the efficiency of its operations through cost reductions;
- regaining deposit market share; and
- maintaining a high liquidity ratio after the immediate increase achieved through the capitalization and liquidity plan.
Facing a better overall Argentine economic and business environment in 2003, in order to generate revenue, the Bank:
- continued to concentrate on the provision of transactional financial services, supported by a more aggressive marketing strategy;
- resumed certain credit activities of a short-term nature, mainly through advances on current accounts, credit-card financing and the purchase of checks;
- concentrated on advancing the restructuring of its commercial loan portfolio;
- remained committed to strict cost controls;
- continued to increase its deposit market share; and
- maintained a high liquidity ratio.
In 2003, with respect to its capitalization and liquidity plan, the Bank continued the process of restructuring its foreign debt, mainly by focusing on renegotiation of the foreign debt of its head office in Argentina and its Cayman branch. This renegotiation was successfully concluded on May 18, 2004, marking the last of the measures set out in the Bank's capitalization and liquidity plan. In addition, in 2003, the Bank focused on restructuring its debt with the Argentine Central Bank into a long-term liability. This restructuring was successfully concluded on February 3, 2004. As a result of these developments, the Bank increased its capitalization to a level that management believes will assure capital availability for an extended period. See " -- Restructuring of the Foreign Debt of the Bank's Head Office in Argentina and its Cayman Branch" and " -- Capitalization."
In the restructuring of its liabilities, the Bank sought to create a new debt profile consistent with the expected cash flow of its assets and to prevent servicing of the restructured debt from affecting the growth prospects of its business. Based on this objective as well as several competitive strengths that were unaffected by the crisis, the Bank's current strategy is to:
- reposition the Bank as the leading Argentine bank;
- exploit fully the strengths represented by the Bank's extensive distribution platform and significant market penetration;
- continue to increase its deposit market share in order to recover its historical market share of approximately 10% over the next few years;
- increase significantly its peso-denominated lending in order to increase its financial income and reduce its asset and liability mismatches;
- maintain and develop further the Bank's leadership in transactional and electronic banking products;
- rebuild relationships with corporates and consolidate leadership in the agribusiness and middle-market sectors;
- maintain cost efficiency and expense control; and
- maintain an adequate capital base.
On a consolidated basis, including its regional credit card companies, the Bank has a large base of approximately 2.3 million customers. The Bank's competitive capacity remains intact and is based on the following strengths:
- its significant share of the financial system's deposits;
- its ability to retain customers (neither the streamlining of the Bank's distribution network in 2002 nor the deposit runs experienced during the crisis resulted in a significant loss of customers);
- its extensive and diversified distribution platforms within the Argentine financial system;
- its leading position as a provider of transactional and electronic banking services, which are, and are expected to continue to be over the medium term, the core of financial activity in the Argentine financial system
- its wide product offerings, which are constantly adapted to the new economic environment and which include technology-based services;
- its brand image;
- its asset and liability structure: the Bank has a lower level of currency mismatches and less exposure to amparo claims and judgments than most of its competitors;
- its considerable fee income, which provides the highest coverage of expenses and the lowest breakeven spread among its competition; and
- its level of capitalization (after completion of its foreign debt restructuring, the Bank is one of the most highly capitalized banks in the Argentine financial system).
Galicia Capitalization and Liquidity Plan
On March 21, 2002, the Bank submitted a capitalization and liquidity plan
to the Argentine Central Bank in order to restore its liquidity and solvency,
which plan was supplemented on March 22, 2002, and April 11, 2002. The main
objectives of the plan were (1) the immediate restoration of the Bank's
liquidity through raising cash in amounts sufficient to allow the Bank to
reimburse a significant portion of its demand deposits without having to rely on
financial assistance from the Argentine Central Bank; (2) an increase in the
Bank's capitalization in the context of the restructuring of its foreign debt;
(3) the orderly winding down of the Bank's operating units abroad; and (4)
streamlining of the Bank's operations and a reduction in its administrative
expenses in order to adapt to levels of financial activity significantly lower
than those experienced in the precrisis period. The board of directors of the
Argentine Central Bank approved the plan on May 3, 2002.
As of the date of this annual report, the Bank had accomplished all of the steps laid out in its capitalization and liquidity plan.
After the initial increase in the Bank's liquidity in May 2002, immediately after the launch of the Galicia capitalization and liquidity plan, the Bank continued to rebuild its liquidity position without requiring further financial assistance from the Argentine Central Bank. The initial increase in the Bank's liquidity was achieved through the securitization or sale of mortgage and commercial loan portfolios in exchange for cash and through loans from Sedesa (the entity that manages Argentina's deposit insurance fund) and the Fiduciary Fund for the Assistance of Financial Institutions and Insurance Companies (FFAEFyS). As of December 31, 2003, the Bank's liquid assets, on an unconsolidated basis, considering only those of the Argentine operation, amounted to 60.37% of
its transactional deposits (deposits in current and savings accounts) and 26.73% of its total deposits. Liquid assets include cash, the balance of the Bank's current account at the Argentine Central Bank, the balance of special escrow accounts held by the Bank at the Argentine Central Bank in favor of clearinghouses, holdings of Lebac (short-term Argentine Central Bank notes) and short-term placements in correspondent banks.
As part of the capitalization and liquidity plan, the Bank streamlined its operational structure and reduced its administrative expenses in order to adapt to the new economic and regulatory context that resulted from the crisis in 2002. Its strict cost-control policy has continued. See Item 5. "Operating and Financial Review and Prospects--Item 5A. Operating Results--Results of Operations of Grupo Galicia for the Fiscal Years Ending December 31, 2003, December 31, 2002 and December 31, 2001."
In accordance with its capitalization and liquidity plan, the Bank restructured the liabilities of its New York branch, which then totaled US$327.8 million, in 2002. This step was necessary to ensure the orderly winding down of the affairs of the New York branch, which was closed on January 30, 2003. As of the date of this annual report, US$115.8 million in aggregate principal amount of two negotiable obligations issued by the Bank's head office in Argentina to restructure the New York Branch debt remain outstanding.
Similarly, during 2002, the Bank restructured deposits at Galicia Uruguay. See "--Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd.--Galicia Uruguay."
In addition, in accordance with the capitalization and liquidity plan, the Bank's representative offices in Sao Paulo and London, as well as the Bank's securities business incorporated in the United Kingdom, Galicia y Buenos Aires Securities (UK) Ltd., were closed on September 30, 2002.
The sections below summarize the progress made by the Bank during 2003 and 2004 toward completing implementation of the capitalization and liquidity plan's measures, including restructuring the foreign debt of the Bank's head office in Argentina and its Cayman branch, the increase in the Bank's capitalization tied to the foreign debt restructuring and other developments regarding the Bank's subsidiary in Uruguay.
Restructuring of the Foreign Debt of the Bank's Head Office in Argentina and its Cayman Branch
Overview
On June 12, 2002, the Bank announced that it would not pay any principal or interest on its foreign debt effective as of May 1, 2002, and announced its intention to restructure all of the foreign debt of the Bank's head office in Argentina and its Cayman branch within the framework of the capitalization and liquidity plan. In this connection, the Bank hired an international investment bank as an adviser in the restructuring process, and negotiations to restructure the foreign debt began in June 2002. On November 25, 2003, the Bank announced that it had reached a nonbinding agreement in principle with the members of an ad hoc steering committee representing the Bank's principal bank and multilateral agency creditors regarding terms for the proposed restructuring. We refer to these bank and multilateral agency creditors as "bank creditors" below.
In December 2003, the Bank announced the restructuring terms to its bank creditors and bondholders. The Bank offered its bank creditors and bondholders instruments with substantially similar economic terms. The instruments delivered to the bondholders, however, were issued under an indenture, and the instruments issued to the bank creditors were issued under various loan facilities that contain additional covenants not included in the indenture.
On May 18, 2004, the Bank successfully closed the restructuring of US$1,320.9 million of the foreign debt of its head office in Argentina and its Cayman Branch. This amount represented 98.2% of the foreign debt eligible for restructuring.
Approval of the Bank's Foreign Debt Restructuring and Argentine Central Bank Debt Restructuring
In accordance with Argentine Central Bank Communique "A" 3940, in order for a bank to be eligible to restructure the financial assistance for liquidity support it received from the Argentine Central Bank into long-term debt under the terms established by Decree No. 739/03 and No. 1262/03, the Argentine Central Bank had to approve the terms and conditions of the bank's foreign debt restructuring proposal before December 5, 2003.
On November 28, 2003, the Financial System's Restructuring Unit (Unidad de Reestructuracion del Sistema Financiero), the regulatory body responsible for restructuring the Argentine financial system after the 2001-2002 crisis, informed the Bank that it had authorized the Argentine Central Bank to extend the maturity of the Bank's debt with the Argentine Central Bank for liquidity support by up to 120 monthly installments in accordance with the repayment schedule presented by the Bank to the Argentine Central Bank and in accordance with the provisions of Decree No. 1262/03. For a description of the restructuring of the financial assistance granted by the Argentine Central Bank to the Bank for liquidity support, see Item 5. "Operating and Financial Review and Prospects--Item 5A. Operating Results--Funding."
On December 3, 2003, the Argentine Central Bank informed the Bank that its board of directors had approved the terms and conditions of the proposed restructuring of the foreign debt of the Bank's head office and the Bank's Cayman branch.
On February 3, 2004, the Argentine Central Bank informed the Bank that it had approved the Bank's request to adhere to the regime (established by Decree No. 739/03 and modified by Decree No. 1262/03) for the repayment of the debt for liquidity support owed to the Argentine Central Bank, as well as the amortization schedule for that debt proposed by the Bank. The schedule was based on the minimum amortization set up by the applicable rules and on the proceeds of the assets eligible as collateral for such debt pursuant to these rules. Therefore, the schedule contemplates repayment of the restructured debt in 92 monthly installments beginning in March 2004.
By Resolution No. 152/04, dated May 14, 2004, the Argentine Central Bank approved the economic terms of the restructuring of the foreign debt of the Bank's head office in Argentina and its Cayman branch.
Terms of the Foreign Debt Restructuring
In the Bank's foreign debt restructuring, the Bank offered its bondholders and bank creditors the ability to exchange their existing debt for units comprised of a new long-term debt instrument maturing in 2014 and a new subordinated debt instrument maturing in 2019 in a par-for-par first step exchange offer. The bondholders and bank creditors were then given the option to participate in a second step to the exchange, in which they could receive for their units:
- cash (at a discount) (the "cash offer");
- BODEN 2012 (at a discount) (the "BODEN offer");
- new long-term debt instruments (at par); or
- new medium-term debt instruments (at par) and up to 149 million preferred shares of our preferred shares (or, instead of such shares, cash, if any, paid to us by existing shareholders electing to subscribe for our preferred shares in a preemptive rights offering) (the "equity participation option").
In addition, creditors that agreed to sign firm commitments to the Bank for new trade facilities in an aggregate principal amount up to US$35 million were permitted to elect to receive new medium-term debt instruments maturing in 2010 (at par) (the "new money option").
Each of the optional second-step offers was subject to proration.
By offering the units, which contained a subordinated component, in the par-for-par first step exchange offer, the Bank's main objective was to generate complementary regulatory capital for an extended period. The second step was intended to satisfy creditors' varying investment preferences.
To make the Bank's foreign debt restructuring possible:
- We approved a capital increase through the issuance of up to 149 million preferred shares, each of them mandatorily convertible into one of our class B shares on May 13, 2005, the first anniversary date of issuance (or, if earlier, on the occurrence of a change of control of Grupo Galicia). As a result of the exercises made by the existing shareholders in our preemptive rights offering, creditors opting for the equity participation offer received 87.8 million preferred shares and US$30 million in cash and we received approximately US$100 million of subordinated bonds in exchange for those shares and cash. We issued the 149 million preferred shares on May 13, 2004.
- Our controlling shareholders assigned part of their preemptive and accretion rights to a trust established for the benefit of the Bank's creditors.
- We entered into a registration rights agreement for the
benefit of the holders of our preferred shares in the United
States in which we agreed to (1) file a shelf registration
statement with the U.S. Securities and Exchange Commission
covering the resale of those restricted preferred shares
within 270 days of the expiration date of the exchange offer;
(2) use our reasonable best efforts to cause the shelf
registration statement to become effective within 360 days of
the offer's expiration date; and (3) use our reasonable best
efforts to keep the shelf registration statement effective
from on or before June 1, 2005, until the date on which all of
the restricted preferred shares have been sold under the shelf
registration statement or September 1, 2005, whichever comes
first.
- We entered into an agreement with the Bank's bank creditors in which we agreed to maintain certain corporate governance standards and to provide them with certain financial information and reports on a quarterly and annual basis.
In addition, in accordance with the terms of the Bank's foreign debt restructuring, the Bank made a US$15.5 million cash payment for interest accrued until April 30, 2002, and applied US$42.4 million not used in the cash offer to prepay at par (plus capitalized interest) long-term instruments to be delivered to creditors participating in the restructuring.
Based on the final amounts validly tendered, on May 18, 2004, the Bank:
- paid US$13.6 million to creditors participating in the cash offer;
- transferred US$36.9 million of nominal value of BODEN 2012 to creditors participating in the BODEN offer; and
- issued the following new debt instruments:
- US$648.5 million of long-term dollar-denominated debt instruments, of which US$464.8 million were dollar-denominated negotiable obligations due 2014 issued under the indenture.
- US$399.8 million of medium-term dollar-denominated debt instruments, of which US$352.8 million were dollar-denominated negotiable obligations due 2010 issued under the indenture.
- US$230.0 million of subordinated dollar-denominated debt instruments, of which US$218.2 million were dollar-denominated negotiable obligations due 2019 issued under the indenture.
The Bank also restructured trade debt for a principal amount of US$25.3 million in exchange for US$26.6 million of new trade debt to be repaid in 12 equal, consecutive monthly installments beginning in June 2004.
In addition, the Bank entered into a new trade facility agreement for US$35 million with creditors participating in the new money option.
The following table shows certain information on the Bank's debt restructuring:
PRINCIPAL AMOUNT OF: IN MILLIONS a) Old debt to be restructured as of December 31, 2003............................. U.S.$ 1,349.6 b) Old debt to be restructured as of April 27, 2004 (1)............................ 1,344.7 (2) c) Old debt participating in the restructuring as of April 27, 2004 (1)............ 1,320.9 d) New debt, including past due interest capitalized (3) (4)....................... 1,399.6 e) New debt issued (4) (5)......................................................... 1,278.3 f) Old debt not restructured as of May 18, 2004 (6)................................ 22.9 (7) |
(1) Expiration date of the exchange offer.
(2) The decrease in the principal amount of debt to be restructured as compared to December 31, 2003, resulted from the fact that, in accordance with Argentine law, borrowers that were also holders of certain of the Bank's debt instruments under restructuring used such holdings to repay past-due loans granted to them by the Bank.
(3) Interest past due between May 1, 2002, and December 31, 2003, was capitalized at 4.75% per annum, except for trade debt for a principal amount of US$25.3 million for which interest was capitalized at Libor plus 1%. Interest past due until April 30, 2002, was paid in cash.
(4) Excludes trade debt.
(5) After having applied US$42.4 million not used in the cash offer to prepay long-term debt instruments included in (d).
(6) Settlement date of the exchange offer.
(7) Between the expiration date and the settlement date, the amount of debt not restructured decreased by US$0.9 million as a result of the repayment by borrowers that were also holders of debt subject to restructuring of past-due loans made to them by the Bank by using their holdings of such debt and, to a lesser extent, as a result of the renegotiation of debt not restructured under the terms of the restructuring.
Capitalization
The Bank's capitalization and liquidity plan considered the Bank's capitalization as an integral part of the restructuring of its foreign debt. Accordingly, as part of that plan, the Bank proposed to the Argentine Central Bank a capitalization increase of up to US$300 million.
The Bank's shareholders' meeting held on September 30, 2003, approved the establishment of a global debt program under Argentine law for the issuance of the Bank's new debt, in order to consummate the Bank's foreign debt restructuring through the public offering of securities issued pursuant to such program, which securities were not to be convertible into shares of the Bank. In addition, the Bank's shareholders resolved that securities issued under the global debt program could be subordinated in order to be computed as capital solely for Argentine Central Bank regulatory purposes and not as capital stock.
As a result of the restructuring of the foreign debt of the Bank's head office in Argentina and its Cayman branch, the Bank increased its capitalization by US$278.9 million. Specifically, this capital increase resulted from:
- the exchange of debt subject to restructuring for cash and BODEN 2012 at a discount and the capitalization of interest at a rate lower than the contractual rate recorded in the Bank's books, which generated in aggregate a US$48.9 million increase in shareholders' equity; and
- the issuance of US$230.0 million of subordinated debt computable as supplemental capital in accordance with the Argentine Central Bank's capital adequacy rules.
As a result of the earlier restructuring of the debt of the Bank's New York branch in 2002, the Bank had increased its capitalization by US$42.6 million by exchanging the old debt for new debt or cash at a discount.
Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd.
Galicia Uruguay
As of December 31, 2003, Galicia Uruguay was intervened and its activities were suspended. The Central Bank of Uruguay had imposed this status in early 2002 as a result of the effects of the Argentine crisis on Galicia Uruguay, but postponed its effect until May 31, 2004. As discussed below, the Central Bank of Uruguay has again postponed Galicia Uruguay's intervention and suspension of activities until the measures agreed upon between Galicia Uruguay and the Uruguayan and Argentine regulatory authorities mentioned below in the last paragraph of this section are implemented.
As a result of the intervention of Galicia Uruguay by the Central Bank of Uruguay, during 2002 and in early 2003, audited financial statements prepared in accordance with Argentine Banking GAAP were not available for Galicia Uruguay. As disclosed in the Bank's financial statements for the fiscal year ended December 31, 2002, prepared in accordance with Argentine Banking GAAP, the Bank decided to fully provision its investment in Galicia Uruguay and its subsidiary Banco de Galicia (Cayman) Ltd. for the amounts recorded in its books as of December 31, 2001. Likewise, the Bank deemed it appropriate to discontinue line-by-line consolidation of both subsidiaries' financial statements with those of the Bank for as long as these circumstances continue. However, the Bank established a reserve, under the liability account "Provisions--Other Contingencies" on its unconsolidated balance sheet to cover the estimated negative consolidated shareholders' equity of the two subsidiaries.
Subsequent to the preparation, in accordance with Argentine Banking GAAP, of our consolidated financial statements for the fiscal year ended December 31, 2002, we received additional information related to the consolidated financial information of Galicia Uruguay. Therefore, the December 31, 2002, audited consolidated financial statements included in this annual report include line-by-line consolidation of the consolidated financial statements of Galicia Uruguay. Beginning September 30, 2003, the Bank's access to financial information for Galicia Uruguay and its subsidiaries was regularized. The Bank has therefore resumed line-by-line consolidation of the consolidated financial statements of Galicia Uruguay.
As of December 31, 2003, Galicia Uruguay's shareholders' equity was US$(244.8) million.
On December 23, 2002, Galicia Uruguay restructured its deposits with a high degree of participation by its depositors (participation exceeded the legal majority required under Uruguayan law). The restructuring became binding on all creditors once approved by a court in Montevideo on that date. The restructuring provided for an initial cash payment in dollars equivalent to 3% of the credit balance of each creditor. The remaining balances were to be paid, at the particular creditor's election, in time deposits or negotiable obligations issued by Galicia Uruguay, both maturing in September 2011, with principal amortization in nine annual installments in September of each year (each of the first two installments representing 15% of the remaining balance, with each of the other seven installments 10% of the balance) at a 2% fixed annual interest rate, payable annually each September. On June 20, 2002, the Bank offered a pledge of Galicia Uruguay's commercial loan portfolio as guarantee of payment of the restructured deposits.
On January 9, 2003, Galicia Uruguay made payment of the first installment under the extrajudicial agreement.
On June 17, 2003, Galicia Uruguay opened a period in which it received expressions of interest from customers for different options to exchange deposits restructured in 2002 (as time deposits or negotiable obligations) for different proportions of BODEN 2012 and/or new negotiable obligations to be issued by Galicia Uruguay and cash. The objective of this exchange was to reprofile on a voluntary basis the already restructured deposit base, both to satisfy differing depositors' liquidity-return preferences and to improve the distribution of cash flows over time. This voluntary exchange period ended on July 24, 2003. Galicia Uruguay received expressions of interest from customers for an aggregate amount of US$185 million, which reflected customers' choice to receive BODEN 2012
in an aggregate amount of US$137 million, together with new negotiable obligations to be issued by Galicia Uruguay in an aggregate amount of US$44 million.
On August 14, 2003, the Argentine Central Bank approved the terms and conditions for the restructuring of the Bank's US$399.5 million debt with Galicia Uruguay through its Cayman branch as well as the transfer to Galicia Uruguay through the Cayman branch of cash for US$72.1 million and BODEN 2012 for a nominal amount of US$137 million, corresponding to the first principal amortization of the Bank's debt with Galicia Uruguay and to interest due as of August 15, 2003, on such debt. This debt corresponds to deposits made by Galicia Uruguay in the Cayman branch and later placed with the Bank by means of credit lines. The Argentine Central Bank must preapprove future payments of principal and interest. As of December 31, 2003, this debt amounted to US$221.6 million.
In September 2003, as scheduled, Galicia Uruguay paid the second installment due under the original restructuring schedule (as modified by the results of the exchange offer) and settled the exchange offer.
On December 9, 2003, Galicia Uruguay commenced a period in which it solicited expressions of interest from its customers to participate in a second voluntary exchange of all restructured deposits and negotiable obligations or certificates issued by Galicia Uruguay or its subsidiary Banco de Galicia (Cayman) Ltd. (in provisional liquidation) to restructure deposits. The consideration offered consisted of a cash payment for 17.5% of the principal amount owed (equivalent to paying in advance the installment due in September 2004) and BODEN 2012 for the remaining balance. The exchange was limited to an aggregate amount of US$300 million. On March 15, 2004, the exchange offer was settled for an aggregate amount of US$206 million.
As of December 31, 2003, compensation to the Bank for the effects of asymmetric pesification on a consolidated basis (but excluding domestic subsidiaries with complementary activity) was determined to be US$2.2 billion of BODEN 2012 (nominal value). This amount, which as of the date of this annual report is under review by the Argentine Central Bank, has been recorded in the books of the Bank's head office in Argentina and includes compensation for Galicia Uruguay's pesified loans.
On June 1, 2004, the Bank announced the decision by the Central Bank of Uruguay and Argentine regulatory authorities to authorize the creation of a trust to hold assets of Galicia Uruguay, the proceeds of which will be used for the repayment of Galicia Uruguay's obligations under the restructuring agreement reached with its depositors in 2002. The creation of the trust does not alter the rights of Galicia Uruguay's depositors in connection with the 2002 agreement or in connection with subsequent exchanges of restructured deposits. The Central Bank of Uruguay also resolved that, concurrently with the implementation of the trust, Galicia Uruguay's intervention will be lifted and Galicia Uruguay's board of directors will be restored. Given that the license to operate as a domestic commercial bank, which is granted by the Central Bank of Uruguay, is not necessary to such effects, such license will be revoked. However, Galicia Uruguay will retain the authorization that had been granted to it by the Executive Branch of the Uruguayan government.
Banco de Galicia (Cayman) Ltd.
Galicia Uruguay's situation affected its subsidiary Galicia Cayman. As a consequence, on July 18, 2002, at the request of Galicia Cayman, the Cayman Islands courts designated two joint provisional liquidators in order to allow a voluntary debt restructuring agreement to be reached between Galicia Cayman and its creditors. By late May 2003, Galicia Cayman together with the provisional liquidators, completed a debt restructuring proposal and, with the authorization of the Cayman Islands court, presented it to all Galicia Cayman creditors for their consideration.
On May 29, 2003, the restructuring proposal made to creditors was
submitted before the Cayman Islands court. Galicia Cayman proposed to pay to its
class A creditors an initial cash payment equivalent to 5% of the amount owed
for principal and interest accrued through July 18, 2002, plus a transferable
certificate equivalent to 95% of the amount owed for principal and interest
accrued through July 18, 2002. The terms of the certificate are the following:
(1) principal amortization in nine annual installments (the first two for 15% of
principal and the remaining for 10%), payable each September; (2) a 2% annual
interest rate (plus 1% if after the payment of all creditors pursuant to the
proposal and repayment of the subordinated loan, as described below, any assets
remain);
(3) the certificate will bear interest beginning the effective date of the agreement; and (4) interest will be payable annually, together with principal, and calculated on the remaining debt balance. Once all class A creditors are paid, the remainder of the assets of Galicia Cayman will be applied to the payment of the claim of its class B creditor, Galicia Pension Fund Ltd. (a subsidiary of Galicia Cayman) for US$2.9 million, which has been subordinated to the payment of all class A creditors. In addition, Grupo Galicia made a US$1.2 million subordinated loan in favor of Galicia Cayman, which will accrue interest at an annual rate of 2% and will be repaid once all creditors of Galicia Cayman have been paid in accordance with the restructuring.
By a vote of creditors representing in number and debt held, 99.7% of the votes issued, Galicia Cayman's restructuring proposal was approved in whole on July 10, 2003. The degree of acceptance exceeded the legal majority required. With the approval of the restructuring proposal by the Cayman Islands court and its filing with the Cayman Islands Corporate Record, both on July 16, 2003, the restructuring plan became effective and mandatory on that same date for all creditors. The initial cash payment was made on August 8, 2003.
In accordance with the restructuring plan, Galicia Cayman commenced voluntary liquidation and surrendered its banking license effective December 31, 2002.
Banco Galicia's Operations
Retail Banking
The retail banking division oversees all of the areas that provide financial services to individuals and manages distribution channels. Banco Galicia provides a wide range of financial products and services to individuals, covering both transactions and investments. On the transactions side, Banco Galicia offers customers checking and savings accounts, credit and debit cards, foreign exchange brokerage and payroll direct deposit. On the investments side, its products and services include certificates of deposit, mutual funds and insurance products. In addition, Banco Galicia provides credit for the acquisition of consumer goods and housing through personal loans, residential mortgages, pledge and credit card loans. During 2002 and 2003, credit provision was not significant.
Consumer Banking
Deposits and Accounts - During fiscal year 2003, the Bank's efforts were aimed at strengthening relations with its customers having investment products based on individualized professional advice. In this way, the Bank succeeded in increasing the portfolio of retail-sector deposits by 86% during the fiscal year, outperforming the overall development of the financial system, which grew 53%. With respect to retail time deposits, 105% growth was recorded, which was also higher than the 67% growth experienced by the system as a whole. In April 2003, the Argentine government offered a voluntary mechanism to reimburse restructured deposits (known as CEDROS, for the initials in Spanish of "Certificates of Restructured Deposits"). Adherence to this mechanism reached 40% of the Bank's CEDROS, and there was a high level of reinvestment of released funds.
Beginning in June 2003, the number of current accounts reversed the decreasing trend present in the early part of 2003, ending the fiscal year with a reduction of only 1.9% compared to December 2002. The number of account closings dropped 60%, while sales progressively recovered. New account openings grew 188%, which was influenced by promotional campaigns of product packages carried out in April and May that targeted the Bank's customers who did not have current accounts. The number of savings accounts decreased 14%, in part due to the closing of accounts with no activity. However, monthly balances deposited in these accounts grew 80%, while average balance per account increased 100% over the period.
Loans - In 2003, the credit market showed slightly increasing demand while the supply of credit started to recover. Consistent with this trend, the Bank has launched new credit lines aimed at meeting the needs of its existing customer base and also resumed prequalifying customers for personal loans.
The Bank's portfolio of loans to individuals (excluding the regional credit-card companies' portfolio) only decreased 2% in 2003, compared to the sharp reduction in 2002. This was the result of lower prepayments made by customers, the reactivation of credit supply and the launching of new credit lines.
Credit and Debit Cards - During 2003, the Bank maintained its leadership in the credit card business. At the end of the fiscal year, the Bank was ranked first in credit card use in the Visa system, with a market share of 15.8%. The Bank has a 10.8% share of the total cards managed by financial institutions. The Bank's share in American Express amounted to 31.9% as measured by credit card use and 22.5% as measured by the number of cards managed. Purchases made with Visa cards during 2003 increased over 24% and those made with American Express cards grew 30% compared with the prior year. This increase was favored by plans for the repayment of purchases in installments, beginning mainly in the second half of the year. Other factors that acted as an incentive to channeling purchases through credit cards were the 3% VAT refund provided for by the government beginning in October 2003, as well as the Felices Compras ("happy shopping") campaign launched by the Bank at the end of the year, in which more than 39,500 customers were awarded a prize for purchases made with their credit and debit cards.
With respect to debit cards, the Bank's market share reached 12.4% at the end of the year, measured by debit card use and 15.6% measured by number of cards. In addition, the Bank has launched continuous consumption incentive plans for this portfolio, encouraging customers to replace cash with the use of debit cards even for small purchases. In addition to these plans, the government provided for a 5% VAT refund. As a result, debit card use increased 9% during 2003 compared with the prior year.
Foreign Exchange Brokerage - During 2003, the Bank continued to operate actively in the consumer segment of the foreign exchange market. Beginning in June 2003, the Bank introduced, as part of its services, foreign exchange transactions in euros in its branches located in the Federal Capital, the Buenos Aires metropolitan area and the main cities of Argentina's provinces. Moreover, the Bank promoted this service among its customers by direct marketing and advertising campaigns aimed at noncustomers. The monthly average amount of transactions conducted at the Bank's branches increased 19% with respect to the volume in December 2002.
Regional Credit Card Companies - The Banks pursues the consumer finance business aimed at the lower-income segment of the population through subsidiaries of Tarjetas Regionales S.A., a holding company. These companies (the "regional credit cards companies") issue credit cards in certain regions of Argentina and provide financing through these credit cards as well as personal loans.
As of December 31, 2003, Banco Galicia held 68.22% of Tarjetas Regionales while Galicia Cayman holds the remaining 31.78%. At the same date, the Bank held directly or indirectly (through Tarjetas Regionales) majority interests in the following regional credit card and consumer finance companies:
- 80.0% in Tarjeta Naranja S.A., a company operating in central and southern Argentina. In March 2001, Tarjetas del Sur S.A., a regional credit card company that operated in the southern part of Argentina that was directly and indirectly controlled by the Bank, was merged into Tarjeta Naranja.
- 60.0% in Tarjetas Cuyanas S.A., a company operating in the provinces of the Cuyo region.
- 60.0% in Tarjeta Comfiar S.A., a company operating mostly in the province of Santa Fe. Tarjeta Naranja acquired a 40.0% equity interest in Tarjeta Comfiar in July 2000. As a result, as of December 31, 2003, Tarjetas Regionales controlled, directly or indirectly, 92.0% of Tarjeta Comfiar.
- 99.99% in Tarjetas del Mar S.A., a company operating in the city of Mar del Plata and the surrounding area.
Along with the purchase of 40% of the shares of Tarjeta Comfiar, Tarjeta Naranja took over management of this company.
The performance of the regional credit card companies showed a significant improvement in 2003 as a result of the overall improvement experienced by the Argentine economy, low competition and higher operating efficiency.
Greater activity levels led to an increase in the number of credit card statements issued, and these companies experienced a strong increase in their customer base, in credit card purchases and in the financing of these purchases. All of this contributed to 71% growth in the operating companies' income. In terms of expenses, the restrictive staffing and general cost-control policies initiated in mid-2001 were maintained, and projects on operating concentration were resumed. Moreover, debtor delinquency decreased throughout the fiscal year. At year-end, the nonaccrual portfolio represented 3.9% of the total portfolio, the lowest level reached in the history of these companies. The reduction in the exchange rate during 2003 had a favorable effect on these companies' results in view of their short foreign-currency position. In aggregate, in 2003, the regional credit card companies showed net income of Ps. 88.5 million, of which Ps. 59.2 million pertained to the Bank.
With respect to their obligations denominated in foreign currency and obtained through the issuance of dollar-denominated negotiable obligations prior to the 2001-2002 crisis, in early 2002, these companies offered their creditors the payment in accordance with the pesification provisions established by the government (i.e., pesification at the Ps. 1.0 per US$1.00 exchange rate with principal adjustment by the CER index) or, alternatively, their restructuring by means of agreements for the settlement of the negotiable obligations and the subscription by its holders of new debt certificates secured by a trust. Tarjeta Naranja, Tarjetas Cuyanas and Tarjetas del Mar invited holders of their negotiable obligations to exchange those obligations for debt certificates issued under a trust, assigning a percentage of their cash flows to secure the payment of their obligations through this trust. By means of these payment alternatives, at the close of fiscal year 2003, 98.5% of the original negotiable obligations issued had been settled.
As of December 31, 2003, Tarjeta Comfiar and Tarjetas del Mar recorded negative shareholders' equity and their accumulated losses exceeded 50% of their capital stock and of the shareholders' irrevocable contributions. Tarjetas Regionales was in the same condition. Decree No. 1293/03, published on December 23, 2003, in the Official Gazette, extended to December 10, 2004, the suspension of the applicability of the sections of the Argentine Companies Law that require that a company be liquidated due to the loss of its capital stock and that a mandatory capital reduction be made when losses exceed the company's reserves and 50% of the capital stock.
On September 15, 2003, the boards of directors of Tarjeta Comfiar and Tarjeta Naranja approved a preliminary agreement for the merger of these companies, whereby Tarjeta Naranja would absorb Tarjeta Comfiar with management of the two companies to be unified as of January 1, 2004. This preliminary agreement was approved by both Tarjeta Comfiar's and Tarjeta Naranja's extraordinary shareholders' meetings held on October 2, 2003. The final agreement was approved November 14, 2003.
After the close of fiscal year 2003, the debt of Tarjeta Naranja, Tarjeta Comfiar and Tarjetas del Mar with the Bank and its Cayman branch for an aggregate amount of Ps. 255 million was restructured. The principal terms of the plan for this restructuring were as follows:
- Debt of Tarjeta Naranja and Tarjeta Comfiar (which has been merged into Tarjeta Naranja): The Bank and Tarjeta Naranja's minority shareholders made irrevocable contributions for future share issues for a total amount of Ps. 25 million. The debt remaining (in the amount of Ps. 167 million) was restructured through the creation of a trust that issued, for an equal amount, peso-denominated notes secured by a fiduciary guarantee with a 6 1/2-year maturity and a floating interest rate. The fiduciary guarantee consists of the higher of 2% of Tarjeta Naranja's monthly cash flow and 1.28205% of the trust notes' face value plus interest. Trust notes amounting to Ps. 100 million were transferred to the Bank in exchange for Tarjeta Naranja's and Tarjeta Comfiar's past-due and unpaid loans. Debt owed by Tarjeta Comfiar to the Bank's Cayman branch, amounting to US$22.4 million plus interest, was canceled: the Bank granted Tarjeta Naranja a Ps. 67 million peso-denominated loan, which was canceled through the delivery of trust notes for a total amount of Ps. 67 million.
- Debt of Tarjetas del Mar: Tarjetas del Mar restructured its debt with the Bank and its Cayman branch through a Ps. 51 million irrevocable contribution for future share issuances and restructured its remaining Ps. 12 million debt with the Bank with a four-year loan with principal amortization of 5%, 10%, 15% and 70% per year, payable in quarterly equal installments each year, at an interest rate equal to the Tasa Encuesta Corregida (an interest rate published daily by the Argentine Central Bank) plus 2%. As part of this agreement, Tarjeta Naranja, together with Tarjetas del Mar, assumed this new debt.
In this way, on January 30, 2004, these companies' debt with the Bank and its Cayman branch was regularized, and Tarjeta Comfiar S.A. was absorbed by Tarjeta Naranja S.A. on January 1, 2004.
Insurance - In 1996, Banco Galicia established a joint venture with Hartford Life International, creating Galicia Vida Compania de Seguros S.A. to sell life insurance and annuities. The Bank's interest in Galicia Vida was 12.5%. Toward the end of 1996, Galicia Vida began to market products specifically designed for distribution through the Banco Galicia network. In December 2000, the Bank sold its interest in Galicia Vida Compania de Seguros S.A. and purchased 12.5% of Sudamericana Holding S.A., a life and retirement insurance holding company. The other shareholders of Sudamericana Holding were Hartford Life International Corp. (U.S.) and Hartford Life Limited (Bermuda) (with a 50% stake) and Grupo Galicia (with the remaining 37.5%). In September 2001, we acquired the Hartford Life International Corp. (U.S.) and Hartford Life Limited (Bermuda) stakes, raising our interest to 87.5%, while Banco Galicia continued to hold the remaining 12.5%.
The Bank markets Sudamericana's life and life-related insurance products through its own distribution network. Sudamericana's subsidiaries also sell their products through the company's own distribution capabilities. The Bank also sells through its distribution network property and casualty insurance from other companies.
During 2003, the Bank continued consolidating its position as an insurance provider with a wide offering of products and greater functional integration with insurance companies and achieved improvements in efficiency ratios as well as in business volume. Income derived from the bank assurance business amounted in 2003 to Ps. 22.0 million. Insurance policies not related to credit operations grew 46% in comparison to the previous year, while credit-related policies showed a 33% reduction. This decline was the result of prepayments and the slow increase in the Bank's loan portfolio. Promotional actions taken during the period resulted in a 30% increase in the number of policies managed by the Bank, with an increase from 16% to 22% in the share of insurance products in the Bank's customer database. At the close of fiscal year 2003, the Bank managed approximately 300,000 insurance policies, 30% higher than at the end of 2002.
Within the Bank, the branch network continues to lead in sales of insurance products. However, nontraditional channels have shown significant sales growth.
Traditional distribution channels - Due to its extensive and broad geographic distribution, the branch network is one of the Bank's most important competitive advantages. This is reinforced by a unified management system through the use of the Bank's Intranet, modern systems and communication technology and a service model that is continuously being improved.
Fiscal year 2003 was characterized by the branch network's strong focus on sales activities.
At the end of 2003, the Bank's branch network in Argentina totaled 226 branches, one branch less than in December 2002. These branches are located in all of the Argentine provinces except Tierra del Fuego.
Automated Banking - The alternative channels department is responsible for managing those customer service, transactions and sales channels that differ from traditional branches. Its operations cover both individual and corporate customers and are mainly carried out through the Customer Contact Center, e-galicia.com and "Red Galicia 24" (the Bank's network of automated teller machines and self-service terminals).
As in prior fiscal years, the trend of increasing use of alternative channels among the Bank's customers continued. In December 2003, 68.4% of all customer transactions were carried out through the Bank's alternative channels, showing a 10% improvement with respect to same month over the prior year.
The Customer Contact Center currently has 260 staff positions and consists of the following departments: Fonobanco, Fonobanco Seguros, Foreign Trade, Galicia Responde, Telemarketing, the Investment Center, the Collection Center and the switchboard. These units also have support areas for ongoing improvement in service quality. During the fiscal year, the Customer Contact Center handled over 14 million incoming and outgoing calls. This volume was similar to that recorded during previous fiscal year.
e-galicia.com has operating segments for both individuals ("Home Banking") and companies ("Galicia Office"), enabling its customers to operate as if they were carrying out their transactions over the telephone, at an automated teller machine or in a traditional branch. Furthermore, through e-galicia.com, visitors have access to information about the products and benefits offered by the Bank, as well as specific sections that advise users on issues of interest to them: foreign trade, insurance, taxes, up-to-the-minute news on the financial market and several current topics. Through Home Banking, Banco Galicia's individual customers can make inquiries and requests and conduct transactions from any computer with access to the Internet.
e-galicia.com has shown exponential growth since it was launched. Today, the website receives almost 1.2 million visits monthly. Through Home Banking, 1.8 million inquiries and transactions are carried out every month. These numbers represent a 20% growth compared to the end of 2002. The number of Home Banking customers continued to grow in 2003, with an 8% increase compared to December 2002. Among the large variety of available transactions, the payment of taxes and accounts through direct connection to the website Pagomiscuentas.com increased 51% for fiscal year 2003, while the transfer of funds to third-party accounts increased 32%. Likewise, the monetary volume managed through Home Banking grew 66%.
At the end of 2003, Red Galicia 24 was made up of 1,079 state-of-the-art technology terminals located throughout the country in traditional branches as well as in neutral positions (gas stations and supermarkets), in line with the Bank's strategy to be close to its customers and provide them with the means to solve their transactional requirements in a dynamic, simple and safe way.
Network of Automated Banking Terminals
During 2003, more than 30 million transactions were carried out in the Bank's 555 ATMs, one of the largest networks in Argentina, while 9 million transactions were conducted at the Bank's 524 self-service terminals. These figures show a 7% decrease in comparison with the number of transactions conducted during 2002, which is in line with the change seen by the rest of the financial system for these types of transactions.
Private Banking
This business unit provides private-banking and advisory services to medium- and high-net worth individuals and manages collective investment portfolios. During 2003, it focused its effort on strengthening customer relations and on recovering those customers who had stopped having contact with the Bank. As a consequence, deposits managed by this sector increased 162% and the number of managed portfolios grew 31% during the year. Relations with the Bank's customers were encouraged by providing more sophisticated investment options, such as securities, stock options and participation in various restructuring processes of corporate debt instruments carried out during the year.
Wholesale Banking
The wholesale banking division encompasses the areas that provide commercial and investment banking services as well as international services. The wholesale banking division is also responsible for managing the Bank's commercial portfolio credit risk.
Corporate and Middle Market Banking
Corporate and middle market banking provides commercial banking services to all types of businesses and all sectors of the economy, organized by type of customer. In addition, in 2003, the Bank established a corporate restructuring department.
There was an increase in activity both in the financial system and in the economy as a whole in 2003, with the return of deposits and the resumption of banking business generally. In this new scenario, the Bank adapted its product and service offering to the needs of businesses and updated it both regarding technological and financial resources in order to make it competitive in the new financial market.
During 2003, the corporate and middle market banking departments mainly focused on rebuilding relationships with customers and generating income from services by means of the integral management of the treasury of corporate customers. Services were adapted to the new business scenario, covering the transactional needs of customers and providing them with financial solutions to increase their working capital and thereby improve their business activity. That was attained in the different segments in which the Bank offers services, thus strengthening the relationship-banking model applied by the Bank.
Presence in the small- and medium-sized companies ("PYMEs") sector, where the Bank has a leading position, was consolidated through different commercial actions. The "add Banco Galicia's benefits to your company" campaign positioned the Bank as the first bank that launched working-capital credit lines to the market. The Bank also was a leader in the "Sepyme" line bid (a credit line created to subsidize the interest rate for the purchase of highly liquid instruments within a government program to promote the growth of micro-, small- and medium-sized companies), offering a Ps. 25 million credit line at a 12% interest rate, which resulted in a 9% interest rate for customers.
Through the "Banco Galicia, always with the agriculture and livestock sector" campaign, as well as through participation in various agribusiness events, the Bank strengthened its leading presence in a key sector of the economy.
Within the corporate segment, a highly competitive product was developed: Cobranzas Integradas Galicia (Galicia Integrated Collections), which is aimed at meeting the needs of companies that have a substantial volume of invoices and allowing companies, among other things, to identify their customers. Furthermore, in view of the importance that transactions in dollars have started to have and with the purpose of reinforcing the Bank's service offering, special current accounts and collections and transfers in dollars were added to the product menu. Banco Galicia was the first bank to offer collection in dollars for customers' integral treasury management. In addition, the Bank continued adding improvements to its payment and collection systems, seeking to migrate the highest possible number of customers to this channel and to optimize such services. These improvements were mainly reflected in more and better information through electronic channels. Another outstanding event was the addition of Tradecom's advantages to the electronic services offering.
There was also a resumption of credit activities in 2003, initially through 90-day loans, mainly by means of the purchase of checks to date and deferred checks, which are highly liquid documents. In mid-2003, financial loans in pesos and prefinancing of exports in dollars were added, both with a 180-day term. With the improvement in the Bank's liquidity position, the terms for peso-denominated loans were extended to three years. As of December 31, 2003, the Bank's total loan portfolio to small- and medium-sized companies, including loans to the agriculture and livestock sector, amounted to Ps. 850.3 million, 4.5% lower than at the close of the previous fiscal year, while the loan portfolio to large corporations amounted to Ps. 1,820.4 million, showing a 14.6% decrease during the fiscal year.
Galicia Office
Galicia Office is e-galicia.com's exclusive section for corporations.
Through Galicia Office, companies may, at no cost, review the statements of all their bank products (such as accounts, loans, investments and receivables from Visa and Galicia Rural transactions). They may also access a range of information about their entire portfolio of checks and checks returned, request and confirm checkbooks, make transfers between their accounts and to those of third parties within or outside the Bank, make investments, inquire about their foreign trade transactions, pay their employees' salaries safely, renew their digital signature online and pay their suppliers.
Galicia Office expanded significantly during 2003, both in terms of number of customers and volume of transactions. During fiscal year 2003, new functionalities were added to the service, which contributed to higher-quality service and higher customer satisfaction levels. Likewise, marketing campaigns were conducted for customers who use the Bank's direct deposit system in order to migrate such customers to the "e-model," thus optimizing time and costs, as well as offering them a more dynamic and safe service. During 2003, the number of
customers increased 22% over the previous fiscal year. The level of transactions increased 256%, with more than 210,000 transactions conducted.
Investment Banking
Investment banking services include advisory and structured finance services for corporations, institutions and governments, both national and provincial. These services are provided by the Bank through its investment banking department, which oversees the activity of the Bank's subsidiary Galicia Capital Markets S.A. ("GCM"). In addition, the department manages the Bank's own industrial investments and private equity funds. GCM is a 99.99%-owned subsidiary of Banco Galicia. GCM recorded a Ps. 22.1 million loss for fiscal year 2003 and negative net worth of Ps. 6.2 million as of December 31, 2003.
Investment banking activities include advising the Bank with respect to its funding strategy in the capital markets; providing financial advisory and structured finance services to customers both from the private and public sectors, including mergers and acquisitions; and managing the Bank's investments in utility and infrastructure companies.
Regarding the advice provided to the Bank on its funding strategy, the department continued working under the guidelines of the Galicia capitalization and liquidity plan. Once the Bank recovered a satisfactory liquidity position in 2002, the investment banking department concentrated its efforts on restructuring the Bank's foreign debt. Furthermore, during fiscal year 2003, it advised Galicia Uruguay on the exchange offer made to the customers of this subsidiary. With respect to advising and structuring of financial transactions for customers both from the private and public sectors, during 2003, the department continued working within a complex macroeconomic environment characterized by the restriction, for both sectors, of access to mid- and long-term financing. Therefore, during 2003, the department focused on the development of products such as trusts, which are expected to have an increasing presence in the financial market during the current year, on providing advice concerning the restructuring of the Bank's commercial loan portfolio and, to a lesser extent, on mergers and acquisitions.
The portfolio of industrial investments acquired by the Bank as a result of its participation in the privatizations that took place during the 1990s amounted, after valuation reserves, to Ps. 68.8 million, the largest investments being an 8.26% interest in Aguas Argentinas S.A. with a Ps. 23.4 million net book value, and interests, both of 12.5%, in Inversora Nihuiles S.A. and Inversora Diamante S.A. (two holding companies in the electricity generation business) with a net book value of Ps. 15.7 million and Ps. 12.9 million, respectively.
In August 1997, the Argentine executive branch granted Correo Argentino S.A., a company in which the Bank had a 12.5% minority interest (which declined to 11.77% in 1999), the license to provide all postal, monetary and telegraph services previously provided by Empresa Nacional de Correos y Telegrafos S.A. (ENCOTESA), a public-sector company running the Argentine postal service. The term of the license was for 30 years, beginning on September 1, 1997. On September 18, 2001, Correo Argentino filed for bankruptcy protection (concurso preventivo) under the terms of Law No. 24,522. Among other reasons, the failure by Correo Argentino to pay the government for the use of the license, the filing for bankruptcy protection and the bankruptcy of Correo Argentino constituted events causing the termination of the right to operate the license that had been granted.
On November 19, 2003, the Bank was informed of the executive branch's decision to rescind the contract between the government and Correo Argentino. On December 16, 2003, an Argentine court declared Correo Argentino bankrupt. That decision was not final as of the date of this annual report because it has been appealed, and it did not have an impact on the Bank's shareholders' equity or results of operations during 2003, as both the investment in, and the credit exposure to, Correo Argentino had been fully provisioned since 2002. Likewise, the related estimated contingencies were also provisioned.
On March 25, 2004, a guaranty granted by the Bank in favor of the Argentine government in connection with Correo Argentino's compliance with the contract for Ps. 7.3 million was called. The related claim has been proved as a possible claim in the reorganization proceedings involving Correo Argentino. The claim is fully covered by an allowance. The Bank will pay this guaranty as provided in accordance with conditions to be established by the National Communications Commission, as applicable.
International
The Bank's international department provides services involving international financing, credit and services related to foreign trade and factoring activities. In addition, the division manages the Bank's foreign network and fund-raising from international commercial banks. This department also manages relations with correspondent banks and international credit agencies.
Accordingly, since 2002 this department's activities mainly concentrated on its participation in the implementation of the Galicia capitalization and liquidity plan, especially relating to the Bank's foreign debt restructuring process, which started with the restructuring of the New York branch's debt and Galicia Uruguay's deposits and the winding down of the Bank's operating units abroad in 2002, and continued in 2003 with the closing of the New York branch in January, the restructuring of Galicia Cayman's deposits in July and the negotiations to restructure the foreign debt of the Bank's head office in Argentina and its Cayman Branch during most of 2003. On December 23, 2003, the Bank launched the exchange offer to carry out that restructuring.
The restructuring of the foreign debt of the Bank's head office in Argentina and its Cayman branch was completed in May 2004. See "--Restructuring of the Foreign Debt of the Bank's Head Office in Argentina and its Cayman Branch."
Before the 2001-2002 crisis, the New York branch concentrated on providing international financial services to the Bank's customers, mainly Argentine corporations and individuals.
In its capacity as a domestic financial institution in Uruguay, Galicia Uruguay was allowed to perform all permitted financial activities in Uruguay, with residents and nonresidents. As of December 31, 2001, Galicia Uruguay had representative offices in Buenos Aires and New York and branch offices in five Uruguayan cities. As of December 31, 2001, Galicia Uruguay was Uruguay's largest private financial institution in terms of shareholders' equity. Galicia Uruguay's activities are currently suspended. See "--Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd."
Galicia Cayman was established as another alternative deposit location for the Bank's customers. As of December 31, 2003, Banco Galicia owned 34.7% and Galicia Uruguay owned 65.3% of Galicia Cayman's capital stock. The company is currently in provisional liquidation. See "--Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd."
Regarding foreign trade activities, fiscal year 2003 witnessed a gradual loosening of the foreign exchange regulations set forth in 2002 that affect both trading and financial activities. This change made trading transactions easier for exporters and importers and also expanded trade and working capital financing alternatives. The year ended with regulations that allow advancing the payment of imports, even before the shipment of goods, admitting, on the other hand, extended terms for the liquidation of exports proceeds. In addition, Argentine foreign trade expanded significantly, particularly imports. See Item 5. "Operating and Financial Review and Prospects--Item 5A. Operating Results--Argentine Economy in 2003." Within this environment, the Bank recorded a 29.2% increase in the annual volume of foreign-trade transactions in comparison with the prior fiscal year to US$1,351 million in 2003, representing 3.17% of the Argentine foreign trade for that year. This share was higher than that achieved in the previous fiscal year, which was 3%. This positive result was due to the strong repositioning the Bank attained through its strategy of providing customers with assistance and collaboration in all the regions in Argentina. In addition, the Bank's information technology tools facilitated companies' transactions and greatly contributed to their efficiency, a factor that clearly differentiated the Bank from its competitors.
Until mid-2002, through Galicia Factoring y Leasing S.A., Banco Galicia provided leasing and domestic and international factoring services to small- and medium-sized businesses. Banco Galicia owns 99.98% of Galicia Factoring. Galicia Factoring is a member of Factors Chain International, an organization based in Amsterdam that has more than 120 members in 44 countries. Banco Galicia finances the factoring provided by Galicia Factoring, while the latter administers the transactions. In mid-2002, the administration of domestic factoring and leasing transactions was transferred to the Bank in order to make the cost structure more efficient and achieve economies of scale in an uncertain and unfavorable economic environment. International factoring was retained within Galicia Factoring.
In 2003, Galicia Factoring ended its eighth fiscal year. The company adapted its international factoring services to the new regulations and incorporated forfaiting. (Forfaiting is a method of trade financing that allows exporters to obtain cash and eliminate risk by selling their medium-term receivables on a "without recourse" basis.) In this way, the Bank's offering was supplemented, and customers were provided with all the tools necessary for the conduct of foreign-trade transactions.
Treasury Division
During fiscal year 2003, the treasury division began to report to the Bank's board of directors.
The treasury division is responsible for the management of the Bank's treasury operations and its proprietary liquidity, foreign exchange and securities positions and participates in the management of market, liquidity, interest-rate and currency risks. To this end, it develops the necessary data and strategies to keep such risks within the limits established by the Bank's board of directors. Similarly, it is responsible for the administration of third-party assets, mainly the FIMA mutual fund portfolios. The division provides services to corporations, financial institutions, mutual funds, pension/retirement funds and insurance companies. Intermediation services in various markets are carried out by the Bank, sometimes in its capacity as agent of the Mercado Abierto Electronico, the Argentine over-the-counter market, and through Galicia Valores S.A., a brokerage firm that operates on the Buenos Aires Stock Exchange.
Banco Galicia offers brokerage services through its branch network. All equity brokerage activities are conducted by Galicia Valores, a 99.99%-owned subsidiary of Banco Galicia. Galicia Valores provides equity securities trading and custodial services to Banco Galicia customers. Galicia Valores is a shareholder of the Buenos Aires Stock Market, affiliated with the BASE, and therefore effects transactions as either principal or agent on that exchange. Galicia Valores does not make investment decisions for its customers.
Financial Operation
During 2003, events took place that contributed to considerable improvement in the domestic capital markets in comparison to 2002. A significant change was evidenced in the corporate sector's situation in view of the general improvement in the economy, which had started to show as of the second half of 2002, after a first semester dominated by uncertainty and a strong contraction in the level of activity. Likewise, the bond market resumed a certain surge with the appearance of new instruments issued by the national government during the last two years. This situation, together with the stability shown by the exchange rate and the pronounced decrease of interest rates, led to a renewed interest both in the stock market and the bond market in search for more attractive yields. Volumes traded in the local market increased significantly during 2003. The volume of government securities traded during 2003 on the Mercado Abierto Electronico reached an estimated US$19,949 million, compared with US$5,082 million in 2002. In this market, the Bank's share of the total volume traded was 0.94%, higher than the 0.05% for 2002. The total traded on the stock market in 2003 was Ps. 10,150 million. Galicia Valores contributed Ps. 73.5 million of this amount, which represented a 0.7% market share.
Continuing with the policy it adopted in 2002, the Argentine Central Bank greatly increased its issuance of short-term bills known as LEBAC. The net placement of peso-denominated LEBAC amounted to Ps. 6,430 million, a figure that includes CER-adjusted LEBAC, which had an increasing participation throughout the year. By contrast, dollar-denominated LEBAC greatly reduced their participation as a way to sterilize the monetary supply on the part of the Argentine Central Bank. Within this context, the Bank had a higher share in this market when compared to 2002, reaching almost 3% of total issuances.
Asset Management
This business unit is responsible for managing third-party funds, mainly the FIMA mutual funds, for which the Bank acts as distributor and custodian. Galicia Administradora de Fondos S.A. is the fund manager for the FIMA mutual funds. These funds are invested in different assets, such as government securities, shares or bank deposits, depending on the risk profile of each mutual fund.
After the difficult climate created for investors by the economic and financial crisis of 2001 and 2002 interest in this kind of product returned in 2003. Interest was greatest in time deposit funds or money market' funds, which were mainly requested by corporations and institutional investors. To a lesser extent, investors who wished to take advantage of the low price of Argentine equities and fixed-income securities invested in such funds. Both equities and bonds performed well in 2003, with the Buenos Aires Stock Exchange, as measured by the Merval Index, rising 104% and bonds, as measured by the performance of the Fima Renta Dolares (the FIMA dollar fixed-income fund), climbing 20%.
FIMA funds under management increased from Ps. 108 million as of December 31, 2002, to Ps. 170 million at the close of fiscal year 2003. Of this amount, Ps. 120 million corresponded to operational funds (funds that can undergo subscription and redemption transactions) and Ps. 50 million corresponded to funds the shares of which have been restructured or had been invested in national treasury bills due and unpaid.
Internet
The Bank carries out its Internet businesses primarily through Net Investment S.A. Banco Galicia's stake in the company is 12.5%, while the remaining 87.5% is held by Grupo Galicia. See "--Net Investment S.A."
SUDAMERICANA HOLDING S.A.
Sudamericana Holding S.A. is a group of life and retirement insurance companies.
The insurance business we have undertaken through our interest in Sudamericana is part of our strategy to strengthen our position as a leading financial services provider, thus supplementing those businesses that Banco Galicia may only conduct to a limited extent in line with prevailing regulations.
Total written premiums of all companies controlled by Sudamericana during this fiscal year represented 2.5% of the Argentine individual insurance market, ranking Sudamericana eighth among Argentine life insurance companies. Sudamericana companies insured 1,365,039 persons and managed 43,973 policies as of December 31, 2003.
In 2002, the company continued with the cost-cutting program it started during the previous fiscal year. The streamlining of its organizational structure significantly contributed to the general improvement in efficiency it experienced.
From a purely commercial point of view, and within the framework of stability the insurance industry experienced during a significant portion of 2003, the company adopted measures aimed at maintaining and gradually improving portfolio profitability through the following activities:
- Fidelity programs were implemented for life insurance individual customers and two new products were launched: Protection against Accidents and Health Protection. With respect to insurance, portfolios were analyzed and adjusted if necessary to improve their profitability.
- Distribution efforts were focused on Banco Galicia and Tarjetas Regionales, and the development of the insurance broker network was intensified. Likewise, the productivity of telephone sales and direct marketing efforts rose.
- Instituto de Salta continued consolidating its regionalization project in the northwestern provinces of Argentina.
With the purpose of diversifying insured risks and making good use of the growing demand for property insurance, new insurance products for homeowners and theft in ATMs were launched. The merger of Galicia Vida and Aseguradora de Personas, together with the transfer of Medigap Salud S.A.'s business to Galicia Vida represent a significant improvement in terms of operating efficiency and expense reduction.
The Argentine Superintendency of Insurance approved, by means of Resolution No. 29,302, the Regularization Plan submitted by Galicia Retiro with the purpose of renegotiating policies originally issued in
dollars (Inversion Garantizada and Ahorro Planeado), which were later pesified. The main characteristic of this restructuring plan was the offer of a conversion into pesos higher than that provided for by the regulations in force or the possibility of acquiring a life annuity. Approximately 69% of Galicia Retiro's customers accepted one of the alternatives offered and 31% decided to remain within the legal framework.
During 2004, Sudamericana aims to attain a higher volume of premiums with a substantial improvement in profitability by:
- generating business through products both profitable and highly appreciated by our mid-income segment customers.
- converting channels (Organizers and Brokers Network - Banco Galicia - Tarjetas Regionales) into differentiating factors by level of advice, which would allow for the creation of long-term relationships with insureds.
- improving insurance policy periods.
- consolidating Instituto de Salta's regionalization.
- improving the loss experience level through a sensible risk underwriting and loss adjustment program, as well as fighting illegitimate practices.
- searching for greater cost-effectiveness by revising and adjusting processes and systems.
NET INVESTMENT S.A.
We carry out our Internet businesses primarily through Net Investment S.A., a holding company dedicated to investing in and developing businesses involved in technology, communications, the Internet, connectivity, and content. The objective of Net Investment is to create value for its shareholders, investing in projects in which the business model is based on positive cash flows and profits. Our stake in the company is 87.5%, while the remaining 12.5% is held by Banco Galicia.
Net Investment's strategy during 2003 was to carry on projects with minimum investments with the purpose of redesigning and adjusting such projects to the new market conditions. It also seeks to offer, among other things, mobile payment solutions, content, connectivity, B2B electronic services, development of high-bandwidth Internet projects and content for wireless and satellite technology services. In all cases, it seeks to create and benefit from synergies with Banco Galicia's operations.
Net Investment's primary purpose is not to become a player whose e-business operations are only made through capital investments. Rather, its intention is that the opportunities that can be realized contribute to Banco Galicia's and our comprehensive business structure, thus boosting the comparative advantages of our companies and each of our business units.
During fiscal year 2003, Net Investment carried out businesses through its controlled companies Tradecom and Red de Campo. Net Investment has an indirect stake of 16.19% in Tradecom International N.V., a holding company that carries out its commercial activities by means of subsidiaries in Argentina and Brazil. These companies render B2B e-commerce support services and virtual markets for transactions between companies and suppliers. The award of the Panama Channel reverse-auction bid renewal confirms Tradecom International's strategy of acting as an electronic supply solutions provider. Tradecom Argentina continued implementation of its project at Clariant, a customer of Tradecom Argentina and Brazil. Clariant is also expected to transfer technology from Tradecom Argentina for utilization in Venezuela and Mexico during 2004. With respect to commercial developments, Tradecom International began to implement an electronic supply project at Gestion Compartida, which is owned by Grupo Clarin and which manages the group's purchase transactions. Tradecom Brazil continues to grow and develop through the operation of vertical markets and rendering services to large customers in Brazil together with Unibanco, a major stakeholder of the company. In November 2003, Tradecom Argentina renegotiated
its foreign debt, which financed the software-license royalties the company had to pay to operate in Argentina. The renegotiated terms provide for principal reductions, together with a refinancing scheme with a five-year grace period. This plan should make it possible for Tradecom Argentina to pay its international obligations from its own cash flow and to consolidate its financial position.
B2Agro S.A. operates under the trade name of "Red de Campo" in the agricultural sector, one of the most important areas of the Argentine economy. It is a commercial services company that provides solutions specifically designed for each of the participants in the agricultural and livestock production chain in order to facilitate their management, business and integration to the productive process.
As indicated in the annual report for the previous fiscal year, the Internet portal Soloduenos, operated by Dueno Vende S.A., ceased to operate on January 1, 2003. The decision to close down was made due to the difficult macroeconomic situation and the government response to the crisis in early 2002. Two developments impacted what had been the main sources of incoe for the company: the drying up of mortgage lending and the significant decrease in the number of purchase-and-sale transactions. This situation led Dueno Vende's shareholders to approve the dissolution and subsequent liquidation of the company at ordinary and extraordinary shareholders' meetings held on April 21, 2003.
GALICIA WARRANTS S.A.
Galicia Warrants S.A. was founded in April 1993 to issue deposit certificates and warrants, as provided for by Law No. 9,643, both regarding its own deposits and third-party deposits. We own 87.5% of Galicia Warrants and the remaining 12.5% stake is owned by Banco Galicia. Galicia Warrants is a leading company in the deposit certificates and warrants issuance market. It has been continuously conducting transactions since 1994, supporting both medium- and large-size companies in regard to the custody of stocks. Galicia Warrants' main objective is to enable its customers to access credit and financing, which are guaranteed by the property kept in custody as of the issuance of the corresponding certificates. Galicia Warrants has rendered property custody and control services to over 600 companies in more than 800 warehouses distributed throughout the country, having generated the highest business concentration in the humid pampas.
Galicia Warrants owns a plant at San Salvador, province of Entre Rios, for the conditioning and storage of 40,000 tons of paddy rice, which began operations in 1998.
As of the end of 2001, the warrants business suffered a substantial change of direction due to the lack of credit and the pronounced drop in demand from sectors that traditionally used these products.
The stabilization of economic variables that occurred during much of 2003 justifies better growth expectations, but with products and company portfolios different from those seen before the crisis. This situation is a great opportunity for the company to reposition with new companies and economic sectors that will now start demanding the products it offers. Galicia Warrants forecasts a significant activity increase in its cereal storage plant in Entre Rios, in view of the increase in rice sector production levels boosted by firm prices throughout 2003.
During Galicia Warrants' fiscal year ended April 2003, the volume of transactions amounted to US$34.71 million, with a turnover of Ps. 3.85 million. The turnover amount for the following eight-month period, until December 2003, was Ps. 2 million.
COMPETITION
In general terms, the competitive business environment in Argentina is still being influenced by the effects of the devaluation together with the measures adopted by the government since 2002. Changes and new regulatory frameworks are expected, especially in the financial industry and in some privatized utilities companies. The country's sovereign debt is still in default pending restructuring.
Due to our financial holding structure, competition is not felt directly at the holding company level but rather at the level of the operating subsidiaries. We face fierce competition in most of the areas in which we are active.
BANKING
Banco Galicia faces significant competition in all of its principal areas of operation. Until late 2001, mainly large foreign banks operating in Argentina as universal banks, but also Argentine national and provincial government-owned banks, private-sector domestic banks and to a lesser extent cooperative banks, competed with Banco Galicia in traditional commercial banking, investment banking, private banking and the provision of services such as credit cards, asset management, securities brokerage and insurance products. With capital movements completely free during most of the 1990s and until November 30, 2001, Banco Galicia also faced competition from foreign banks established abroad, mainly in corporate and investment banking as well as private banking. Nonbank financial institutions in Argentina also competed for customers' funds and in the provision of certain banking services, such as consumer finance, credit cards and insurance products.
As a result of the 2001-2002 crisis, financial activity was almost paralyzed during the first part of 2002. Short-term deposit-taking resumed in the second half of 2002. Lending activities resumed somewhat in 2003 and more strongly in the first half of 2004, but remained limited to the provision of short-term loans through the discount of checks, foreign trade financing and credit card lending. Mortgage and pledge loans have not resumed yet. In general, bank activity is currently concentrated mostly in the management of means of payment, foreign trade services and foreign exchange brokerage. With respect to the activities currently being developed by banks, the Bank faces competition from the large universal foreign banks operating in Argentina, from Argentine national and provincial government-owned banks private-sector domestic banks and to a lesser extent from cooperative banks, as well as from nonbank financial institutions. Competition from public-sector banks has decreased from the immediate post-crisis period as the public that initially turned to them as a safe harbor during the crisis has begun to exit those banks in search of better service. Competition is expected to increase from certain domestically owned private-sector banks, which prior to the crisis operated in merchant or private banking and acquired the retail operations of banks that left the business as a result of the crisis.
The estimated deposit market share of "voluntary" deposits of the Bank (in the Argentine financial system only) based on daily information published by the Argentine Central Bank increased to 4.75% as of December 31, 2003, compared to 4.34% as of December 31, 2002, 3.83% as of June 30, 2002, and 10.0% as of June 30, 2001.
Despite the market-share loss due to the crisis, the Bank continues to be one of the leading banks in Argentina and the largest domestically owned private-sector bank. As of December 31, 2003, and measured by its deposits in Argentina only, the Bank was ranked sixth in the whole financial system and third among private-sector banks (including foreign banks). Measured in the same way, as of December 31, 2002, the Bank was ranked ninth in the whole financial system and sixth among private-sector banks (including foreign banks).
For information on the Argentine banking system, see "--Argentine Banking System and Regulation--Argentine Banking System."
REGIONAL CREDIT CARD COMPANIES
No official data is available about the Argentine consumer finance market in which the companies that issue regional credit cards operate. The 2001-2002 economic crisis significantly affected these companies' competitors, with most of them having ceased operations. Therefore, in general, competition is currently almost nonexistent for these companies and much lower than in the precrisis period. There are certain consumer finance-oriented players, whose business model is based on the provision of loans, and therefore do not exactly participate in the same business.
INSURANCE INDUSTRY
After the collapse suffered by the Argentine economy in 2002, the insurance business managed to stabilize throughout 2003, and a moderate recovery is expected for 2004. Insurance growth estimates are calculated at around 8% to 10%, still above the growth line of the GDP.
Total insurance for the last 12 months increased, at constant values, 1.4% with respect to the previous year, reaching, according to official estimates, Ps. 9,545 million, at constant values as of November 2003.
The current growth is mainly driven by the following sectors:
pension-linked life insurance (vida previsional), life annuities and automotive
and home insurance. With respect to distribution, the business is expected to
continue being channeled mainly through insurance brokers, who are expected to
exert greater pressure on the part of the channel represented by banks.
Industry consolidation is expected to continue due to the fact that foreign companies find this sector less attractive as a consequence of the end of fixed, one-to-one parity between the peso and the U.S. dollar, higher capital requirements and lower financial results, which force companies to attain higher technical results.
The property insurance sector's volume of premiums was Ps. 6,300 million for the fiscal year, at constant values as of November 2003. The main segment of this sector is automotive insurance (52%), followed by fire and homeowners, insurance (35%) and workers' compensation.
Even though automotive insurance is the most important segment in terms of volume of premiums written, the current security situation in Argentina makes it the segment with the highest loss experience.
The volume of premiums of the individual insurance sector was approximately Ps. 2,500 million in 2003. The most important segments of this sector are life insurance (44%), pension-linked life annuities (rentas vitalicias previsionales) (32%), pension-linked life insurance (15%) and retirement plans (7%). There has been a marked growth in life and ordinary annuities, which are first among the individual insurance sector and are shaping up as the insurance products that will grow the fastest in 2004.
During 2003, individual insurance adapted and consolidated in response to the needs of a new market that requires insurance coverage focused mainly on protection, leaving behind retirement insurance with capitalization, the most important product within the stable environment of the 1990s. This new situation led many companies to change strategies and move toward life insurance products with health components or to develop strategies that involved the acquisition of semipublic health-care providers or prepaid medical assistance companies.
SALES AND MARKETING
Banco Galicia operates one of the most extensive and diversified distribution networks among private-sector banks in Argentina. Banco Galicia's distribution capabilities are our principal marketing channel.
While continuing with its long-term objective to consolidate its leadership in the Argentine financial system, the Bank significantly reduced its distribution platform during 2002 as a result of the crisis and did not expand it in 2003. Despite the reduction, the Bank's distribution network continues to be one of the largest and most flexible distribution platforms in the country and the Bank has kept nationwide coverage.
The Bank markets all of its financial products and services to high-, medium- and medium-low-income individuals, including insurance and FIMA mutual funds, through its branch network. Within the branches, the sales force is specialized by segment. The Bank's sales policy encourages tellers to perform sales functions too. Wealthy individuals who are private banking customers are served by specialized officers through a special network of service centers and a head office facility. The Bank's distribution channel for the lower-income segment of the population is the network of offices of the regional credit card companies. Until mid-2002, the Bank also served this segment through the Galicia Ahora network, which has been merged into the branch network.
Commercial banking services to large corporations (including medium to large companies) and banks are provided in a centralized manner. Branch officers are responsible for the Bank's relationship with middle-market and small businesses and most of the agriculture/livestock sector customers.
All of the Bank's individual and corporate customers have access to the Bank's electronic distribution channels, including the ATM network, a multifunction call center and an e-banking website. The Bank's call center performs telemarketing and credit recovery functions.
Special mobile sales forces are maintained to market various products and services to individuals and employees of client corporations.
The Bank uses a data warehouse, to perform segmentation and profitability analyses, estimate performance patterns and cross-selling indices and forecast client response based on historical information and data-mining. It has turned its focus to a segmented marketing approach. In the late 1990s, the data warehouse capabilities began to be used to design marketing campaigns focused on specific segments of the Bank's customer base. In addition, the Bank began to focus its marketing strategy on the development of long-term relationships with customers based on its knowledge of those customers. As part of this client-oriented strategy, the Bank began to implement customer relationship management ("CRM") technology to support continuous improvement of its relationship with customers. The Bank continues with this strategy.
In 2002, the economic crisis and the measures taken by the government to deal with the crisis had a strong impact on financial institutions' relations with customers. After the first semester of the year, the Bank implemented several initiatives to retain and recover customers by focusing on quality of service, which according to surveys, appeared to be customers' most valued attribute of a bank. During 2002, the Bank worked to offer its customers transactional banking services and concrete benefits originated from the use of its means of payment. The goal was to make the customer the main beneficiary of services different from those offered in the market. The Bank's media presence remained low until September when a promotional campaign with heavy advertising was launched.
In 2003, as the crisis that affected the financial system was largely overcome, the Bank implemented the Lideres de Calidad de Servicio (Service Quality Leaders) program in its branch network aimed at improving customer focus among Bank team members. In that year, Banco Galicia's image and "top of mind" (immediate brand recollection) improved significantly, boosted by highly accepted advertising campaigns and by important investments in the media. In that regard, the development of constant promotional and loyalty campaigns that highlighted the targeted attributes of the brand contributed to rebuilding customer relations with the Bank. The customer satisfaction survey for the last quarter of 2003 showed a significant upturn in the satisfaction rate, which regained the peak reached before the crisis that took place at the end of 2001.
PROPERTY
GRUPO GALICIA
We currently own 150 square meters of office space at Tte. Gral. Juan D. Peron 456, 2nd floor, Buenos Aires, Argentina, to house its management, accounting, administrative and investor relations functions.
In addition, we also own a building containing eight functional units, equivalent to 1,618.48 square meters, located at Maipu 241, Buenos Aires. Currently, we lease one functional unit, equivalent to 201 square meters, receiving Ps. 3,200 per month, and hold two functional units vacant for leasing. The remaining five functional units are being occupied by the following subsidiaries: Sudamericana Holding S.A., B2Agro S.A., Galicia Vida Compania de Seguros S.A. and Galicia Retiro Compania de Seguros S.A.
BANCO GALICIA
Banco Galicia's principal executive offices consist of approximately 17,270 square meters at Tte. Gral. Juan D. Peron 407, Buenos Aires. In addition, Banco Galicia owns approximately 7,340 square meters at Florida 361, Buenos Aires, and rents approximately 9,325 square meters of space at Tte. Gral. Juan D. Peron 525, Buenos
Aires and approximately 3,630 square meters of space at San Martin 178/200, Buenos Aires. All spaces serve as annexes to the Bank's principal executive offices.
In 1994, Banco Galicia purchased the building located at Reconquista 188/200, Buenos Aires, and between 1992 and 2000 it purchased the building located at Tte. Gral. Juan D. Peron 444, Buenos Aires. In these locations, construction was begun of a new corporate tower. The Bank plans to centralize a significant portion of its offices that are currently in the vicinity in this building.
As of December 31, 2003, Banco Galicia's branch network consisted of 226 branches in Argentina, 137 of which were owned and 89 of which were rented by Banco Galicia. The Argentine branches were located in 22 of Argentina's 23 provinces.
The head office of Galicia Uruguay is located at Luis Alberto Herrera 1248, 21st and 22nd floors, Edificio World Trade Center, Montevideo, Uruguay, and consist of approximately 880 square meters. Galicia Uruguay also rents a warehouse in Montevideo, where it stores documents. As of December 31, 2003, Galicia Uruguay had three branches, including the head office, two of which it owned and one of which it rented. Banco Galicia Cayman Ltd. and the Cayman Islands branch are located in the Cayman Islands and The Bank of Nova Scotia Trust Co. acts as its registered office.
Tarjeta Naranja S.A. owns two buildings at Sucre 152 and Sucre 154, Cordoba, Argentina, to house part of its management and administrative functions. These buildings contain approximately 1,390 square meters. The company rents office space at Sucre 145/151 and La Rioja 375, Cordoba, which, in aggregate is approximately 3,670 square meters. These locations serve as annexes to its principal executive offices. It also rents warehouse space at Humberto 1 degrees 2165, Cordoba, which consists of approximately 1,115 square meters, at La Rioja 364, Cordoba, which is approximately 350 square meters and serves as a printing center for marketing material and Los Andes 197, Cordoba, which is approximately 1,765 square meters. As of December 31, 2003, Tarjeta Naranja operated 75 sales points located in 17 of the 23 Argentine provinces, 73 of which were rented by the company. This figure includes the branches that previously comprised Tarjeta Comfiar's branch network.
Tarjetas Cuyanas S.A's principal executive offices are rented. They consist of approximately 1,160 square meters of space at Belgrano 1415, Mendoza, Argentina. As of December 31, 2003, its distribution network consisted of 10 sales points located in the provinces of Mendoza, San Juan and San Luis. All of them were rented by the company.
Tarjetas del Mar S.A.'s principal executive offices are located at Maipu 241, 2nd Floor, Buenos Aires, Argentina. They contain approximately 240 square meters of space. As of December 31, 2003, its distribution network consisted of three sales points located in the province of Buenos Aires. Both the head office and the branches were rented by the company.
SELECTED STATISTICAL INFORMATION
You should read this information in conjunction with the other information provided in this annual report, including our audited consolidated financial statements and Item 5. "Operating and Financial Review and Prospects." We prepared this information from our financial records, which are maintained under accounting methods established by the Argentine Central Bank under Argentine Banking GAAP, and do not reflect adjustments necessary to reflect the information in accordance with U.S. GAAP. We have expressed all amounts in millions of pesos, except percentages, ratios, multiples and per-share data.
Unless otherwise stated, in this section the exchange rate used to convert foreign currency amounts into pesos was the exchange rate as of each relevant date or period end that Banco Nacion or the Argentine Central Bank quoted. In the case of dollars, until December 31, 2001, the Banco Nacion quotes for such exchange rates were Ps. 1.0 per US$1.0. The exchange rate used for the preparation of the financial statements as of December 31, 2002 was Ps. 3.363 per US$1.0 and Ps. 2.933 per US$1.0 for the preparation of the financial statements as of December 31, 2003. See Item 3. "Key Information--Exchange Rate Information," Item 3. "Key Information--Risk Factors," and "--Main Regulatory Changes in 2002 and 2003."
The dollar-denominated assets and liabilities reflect balances held by Banco Galicia, Galicia Uruguay, the New York and Cayman branches and the nonbank affiliated companies required to be consolidated. Until the suspension of its activities, the Bank's foreign branches or subsidiaries operated mainly in dollars.
Until December 31, 2001, Banco Galicia and the nonbank affiliated companies required to be consolidated operated both in dollars and in pesos. This was a consequence of the dual currency system of the Argentine economy. After that date, transactions in the financial system denominated in dollars have been significantly reduced and the dollar-denominated balances as of December 2002 and 2003 are mainly nonpesified assets and liabilities and the compensatory and hedge bonds received or to be received as compensation for asymmetric pesification.
In 2002, Argentina experienced a high rate of inflation. The WPI increased approximately 118.44% between January 1, 2002 and December 31, 2002. Between January 1, 2003 and February 28, 2003, the WPI increased 0.87%. Between January 1, 2002 and February 28, 2003, the WPI increased 120.35%. In accordance with the then applicable accounting rules, starting January 1, 2002, our financial statements and those of the Bank began to be adjusted for inflation. Subsequently, as a result of the stabilization of the WPI during the first half of 2003, the requirement that financial statements be prepared in constant currency was eliminated for financial periods ending on or after March 1, 2003.
Accordingly, information included in this section as of and for the fiscal year ended December 31, 2003 include the effects of inflation accounting through February 28, 2003, with the WPI increasing 0.87% between January 1, 2003 and February 28, 2003, while the information for periods prior to February 28, 2003 has been restated in constant pesos as of February 28, 2003 applying the approximately 120.35% change in the WPI for the period from January 1, 2002 to February 28, 2003. High rates of inflation affect the comparability of financial performance on a period-to-period basis. Although inflation accounting improves the comparability of the financial information, it does not eliminate or correct many of the distortions created by inflation that will affect period-to-period comparisons of financial information.
AVERAGE BALANCE SHEET AND INCOME FROM INTEREST-EARNING ASSETS AND EXPENSES FROM INTEREST-BEARING LIABILITIES
The average balances of interest-earning assets and interest-bearing liabilities, including the related interest receivable and payable, are calculated on a daily basis for Banco Galicia and Galicia Uruguay. The average balances of interest-earning assets and interest bearing liabilities are calculated on a monthly basis for Tarjetas Regionales S.A. and the regional credit card companies in which it holds majority interests and for Grupo Galicia and its nonbanking subsidiaries.
Average balances have been separated between those denominated in pesos and those denominated in dollars. The nominal interest rate is the amount of interest earned or paid during the period divided by the related average balance.
Net gains/losses on government securities and related differences in market quotations are included in interest earned. Banco Galicia manages its trading activities in government securities as an integral part of its business. Banco Galicia does not distinguish between interest income and market gains or losses on its government securities portfolio. The nonaccrual loans balance is included in the average loan balance calculation.
For fiscal year 2002, the average nominal interest rates were converted to real rates using the following formula:
1 + N(p) (1 + N(d) (1 + D) R(p) = ---------- - 1 R(d) = ------------------- - 1 1 + I 1 + I Where: R(p) = real average rate for peso-denominated assets and liabilities for the period; R(d) = real average rate for foreign currency-denominated assets and liabilities for the period; N(p) = nominal average rate for peso-denominated assets and liabilities for the period; -49- |
N(d) = nominal average rate for foreign currency-denominated assets and liabilities for the period; D = devaluation rate of the peso to the dollar for the period; and I = inflation rate in Argentina for the period (based on the variation of CER). The real interest rate can be negative for a portfolio of |
peso-denominated loans when the inflation rate for the period is higher than the average nominal rate of the loan portfolio for the same period. A similar effect could occur for a portfolio of foreign currency-denominated loans when the inflation rate for the period is higher than the sum of the devaluation rate for the period and the corresponding average nominal rate of the portfolio.
The formula for the average real rate for foreign currency-denominated assets and liabilities (R(d)) reflects a gain or loss in purchasing power caused by the difference between the devaluation rate of the Argentine peso and the inflation rate in Argentina during the period.
The following example illustrates the calculation of the real interest rate for a U.S. dollar asset bearing a nominal annual interest rate of 10% (Nd = 0.10), assuming a 5% annual devaluation rate (D = 0.05) and a 12% annual inflation rate (I = 0.12):
(1 + 0.10) (1 + 0.05)
R(d) = --------------------- - 1 = 3.125% per year 1 + 0.12
In the example, since the inflation rate was higher than the devaluation rate, the real rate is lower than the nominal rate in dollars. If, for example, the annual devaluation rate were 15%, using the same numbers, the real rate in Argentine pesos would be 12.9%, which is higher than the nominal rate in dollars. Using the same numbers, if the annual inflation rate were greater than 15.5%, the real rate would be negative.
The following table shows Grupo Galicia's consolidated average balances, interest earned or paid and nominal interest rates for interest-earning assets and interest-bearing liabilities for the fiscal year ended December 31, 2003.
GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2003 (*) -------------------------------------------------------------------------------- PESOS DOLLARS -------------------------------------------------------------------------------- INTEREST AVERAGE INTEREST AVERAGE AVERAGE EARNED/ YIELD/ AVERAGE EARNED/ YIELD/ AVERAGE BALANCE PAID RATE BALANCE PAID RATE BALANCE ------------------------------------------------------------------------------------------------------------- (in millions of pesos, except rates) ASSETS Government Securities...... Ps. 250.5 Ps. 23.3 9.30% Ps. 1,832.3 Ps. 48.2 2.63% Ps. 2,082.8 Loans Private Sector.......... 2,981.0 705.6 23.67 986.2 89.2 9.04 3,967.2 Public Sector........... 7,589.5 342.6 4.51 - - - 7,589.5 ----------- ---------- ----- ----------- -------- ----- ----------- Total Loans................ 10,570.5 1,048.2 9.92 986.2 89.2 9.04 11,556.7 Other...................... 1,309.3 61.1 4.67 5,776.3 64.4 1.11 7,085.6 ----------- ---------- ----- ----------- -------- ----- ----------- TOTAL INTEREST-EARNING ASSETS..................... 12,130.3 1,132.6 9.34% 8,594.8 201.8 2.35% 20,725.1 Cash and Gold.............. 207.0 - - 135.5 - - 342.5 Equity in Other Companies.. 462.1 - - 140.4 - - 602.5 Other Assets............... 2,275.1 - - 128.2 - - 2,403.3 Allowances................. (1,291.7) - - (251.4) - - (1,543.1) ----------- ---------- ----- ----------- -------- ----- ----------- TOTAL ASSETS............... Ps.13,782.8 - - Ps. 8,747.5 - - Ps.22,530.3 LIABILITIES AND EQUITY Deposits Current Accounts........ Ps. 185.1 Ps. 3.0 1.62% Ps. 30.5 - - Ps. 215.6 Saving Accounts......... 434.6 3.4 0.78 178.5 - - 613.1 Time Deposits........... 2,185.4 230.6 10.55 1,422.9 Ps. 26.8 1.88% 3,608.3 ----------- ---------- ----- ----------- -------- ----- ----------- TOTAL INTEREST-BEARING DEPOSITS 2,805.1 237.0 8.45 1,631.9 26.8 1.64 4,437.0 Argentine Central Bank..... 8,062.0 473.1 5.87 0.7 - - 8,062.7 Other Financial Entities... 174.4 69.9 40.08 1,900.0 121.0 6.37 2,074.4 Debt Securities............ - - - 2,710.5 154.2 5.69 2,710.5 Other ..................... 45.7 9.6 21.01 1,307.4 58.4 4.47 1,353.1 ----------- ---------- ----- ----------- -------- ----- ----------- TOTAL INTEREST-BEARING LIABILITIES................ 11,087.2 789.6 7.12% 7,550.5 360.4 4.77% 18,637.7 Demand deposits............ 700.6 - - 72.2 - - 772.8 Other Liabilities.......... 939.4 - - 561.5 - - 1,500.9 Minority Interests......... 89.5 - - 0.0 - - 89.5 Shareholders' Equity....... 1,529.4 - - - - - 1,529.4 ----------- ---------- ----- ----------- -------- ----- ----------- TOTAL LIABILITIES AND EQUITY................. Ps.14,346.1 - - Ps. 8,184.2 - - Ps.22,530.3 SPREAD AND NET YIELD Interest Rate Spread....... 2.22% (2.42)% Cost of Funds Supporting Interest-Earning Assets.... 6.51 4.19 Net Yield on Interest-Earning Assets.... 2.83 (1.85) =========== ========== ===== =========== ======== ===== =========== GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2003 (*) --------------------------- TOTAL --------------------------- INTEREST AVERAGE EARNED/ YIELD/ PAID RATE -------------------------------------------------------------- ASSETS Government Securities...... Ps. 71.5 3.43% Loans Private Sector.......... 794.8 20.03 Public Sector........... 342.6 4.51 --------- ------ Total Loans................ 1,137.4 9.84 Other...................... 125.5 1.77 --------- ------ TOTAL INTEREST-EARNING ASSETS..................... 1,334.4 6.44% Cash and Gold.............. - - Equity in Other Companies.. - - Other Assets............... - - Allowances................. - - --------- ------ TOTAL ASSETS............... - - LIABILITIES AND EQUITY Deposits Current Accounts........ Ps. 3.0 1.39% Saving Accounts......... 3.4 0.55 Time Deposits........... 257.4 7.13 --------- ------ TOTAL INTEREST-BEARING DEPOSITS 263.8 5.95 Argentine Central Bank..... 473.1 5.87 Other Financial Entities... 190.9 9.20 Debt Securities............ 154.2 5.69 Other ..................... 68.0 5.03 --------- ------ TOTAL INTEREST-BEARING LIABILITIES................ 1,150.0 6.17% Demand deposits............ - - Other Liabilities.......... - - Minority Interests......... - - Shareholders' Equity....... - - --------- ------ TOTAL LIABILITIES AND EQUITY................. - - SPREAD AND NET YIELD Interest Rate Spread....... 0.27% Cost of Funds Supporting Interest-Earning Assets.... 5.55 Net Yield on Interest-Earning Assets.... 0.89 ========= ====== |
(*) Rates include the CER adjustment.
The following tables show Grupo Galicia's consolidated average balances, interest earned or paid and nominal and real interest rates for interest-earning assets and interest-bearing liabilities for the fiscal year ended December 31, 2002.
GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2002 (*) ---------------------------------------------------------------------------------------- PESOS DOLLARS ---------------------------------------------------------------------------------------- INTEREST AVERAGE INTEREST AVERAGE AVERAGE EARNED/ YIELD/ AVERAGE EARNED/ YIELD/ AVERAGE BALANCE PAID RATE BALANCE PAID RATE BALANCE --------------------------------------------------------------------------------------------------------------------------------- (in millions of February 28, 2003, constant pesos, except rates) ASSETS Government Securities ................. Ps. 575.4 Ps. 213.7 37.14% Ps. 1,680.2 Ps. 84.9 5.05% Ps. 2,255.6 Loans Private Sector ..................... 4,959.9 1,345.1 27.12 1,989.6 102.1 5.13 6,949.5 Public Sector ...................... 8,312.9 2,956.9 35.57 - - - 8,312.9 ----------- ---------- ---------- ----------- ---------- ---------- ----------- Total Loans ........................... 13,272.8 4,302.0 32.41 1,989.6 102.1 5.13 15,262.4 Other ................................. 1,338.9 448.8 33.52 8,096.6 161.6 2.00 9,435.5 ----------- ---------- ---------- ----------- ---------- ---------- ----------- TOTAL INTEREST-EARNING ASSETS ......... 15,187.1 4,964.5 32.69% 11,766.4 348.6 2.96% 26,953.5 Cash and Gold ......................... 226.6 - - 190.7 - - 417.3 Equity in Other Companies ............. 538.5 - - 253.0 - - 791.5 Other Assets .......................... 2,090.7 - - 670.0 - - 2,760.7 Allowances ............................ (1,281.3) - - (140.8) - - (1,422.1) ----------- ---------- ---------- ----------- ---------- ---------- ----------- TOTAL ASSETS .......................... Ps.16,761.6 - - Ps.12,739.3 - - Ps.29,500.9 LIABILITIES AND EQUITY Deposits Current Accounts ................... Ps. 161.7 Ps. 17.1 10.58% Ps. 32.9 Ps. 0.4 1.22% Ps. 194.6 Saving Accounts .................... 1,000.3 6.6 0.66 451.5 2.5 0.55 1,451.8 Time Deposits ...................... 2,917.4 1,214.1 41.62 3,454.1 120.6 3.49 6,371.5 ----------- ---------- ---------- ----------- ---------- ---------- ----------- TOTAL INTEREST-BEARING DEPOSITS ....... 4,079.4 1,237.8 30.34 3,938.5 123.5 3.14 8,017.9 Argentine Central Bank ................ 7,144.1 2,237.7 31.32 3.5 0.1 2.86 7,147.6 Other Financial Entities .............. 198.8 29.8 14.99 2,579.9 216.1 8.38 2,778.7 Debt Securities ....................... 16.3 2.4 14.72 2,552.2 149.2 5.85 2,568.5 Other ................................. 769.9 200.8 26.08 1,613.7 128.6 7.97 2,383.6 ----------- ---------- ---------- ----------- ---------- ---------- ----------- TOTAL INTEREST-BEARING LIABILITIES .... 12,208.5 3,708.5 30.38% 10,687.8 617.5 5.78% 22,896.3 Demand deposits ....................... 622.9 - - 232.0 - - 854.9 Other Liabilities ..................... 2,455.7 - - 714.7 - - 3,170.4 Minority Interests .................... 147.4 - - 0.0 - - 147.4 Shareholders' Equity .................. 2,431.9 - - - - - 2,431.9 ----------- ---------- ---------- ----------- ---------- ---------- ----------- TOTAL LIABILITIES AND EQUITY .......... Ps.17,866.4 - - Ps.11,634.5 - - Ps.29,500.9 SPREAD AND NET YIELD Interest Rate Spread .................. 2.31% (2.82)% Cost of Funds Supporting Interest-Earning Assets ............. 24.42 5.25 Net Yield on Interest-Earning Assets .. 8.27 (2.29) GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2002 (*) ------------------------ TOTAL ------------------------ INTEREST AVERAGE EARNED/ YIELD/ PAID RATE ----------------------------------------------------------------- (in millions of February 28, 2003, constant pesos, except rates) ASSETS Government Securities .................. Ps. 298.6 13.24% Loans Private Sector ...................... 1,447.2 20.82 Public Sector ....................... 2,956.9 35.57 ---------- ---------- Total Loans ............................ 4,404.1 28.86 Other .................................. 610.4 6.47 ---------- ---------- TOTAL INTEREST-EARNING ASSETS .......... 5,313.1 19.71% Cash and Gold .......................... - - Equity in Other Companies .............. - - Other Assets ........................... - - Allowances ............................. - - ---------- ---------- TOTAL ASSETS ........................... - - LIABILITIES AND EQUITY Deposits Current Accounts .................... Ps. 17.5 8.99% Saving Accounts ..................... 9.1 0.63 Time Deposits ....................... 1,334.7 20.95 ---------- ---------- TOTAL INTEREST-BEARING DEPOSITS ........ 1,361.3 16.98 Argentine Central Bank ................. 2,237.8 31.31 Other Financial Entities ............... 245.9 8.85 Debt Securities ........................ 151.6 5.90 Other .................................. 329.4 13.82 ---------- ---------- TOTAL INTEREST-BEARING LIABILITIES ..... 4,326.0 18.89% Demand deposits ........................ - - Other Liabilities ...................... - - Minority Interests ..................... - - Shareholders' Equity ................... - - ---------- ---------- TOTAL LIABILITIES AND EQUITY ........... - - SPREAD AND NET YIELD Interest Rate Spread ................... 0.82% Cost of Funds Supporting Interest-Earning Assets .............. 16.05 Net Yield on Interest-Earning Assets ... 3.66 |
(*) Rates include the CER adjustment.
GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2002 (*) ------------------------------------------------------------------------------------------ PESOS DOLLARS ------------------------------------------------------------------------------------------ INTEREST AVERAGE INTEREST AVERAGE AVERAGE EARNED/ REAL/ AVERAGE EARNED/ REAL/ BALANCE PAID RATE BALANCE PAID RATE ----------------------------------------------------------------------------------------------------------------------------------- (in millions of February 28, 2003, constant pesos, except rates) ASSETS Government Securities ............... Ps. 575.4 Ps. 213.7 (37.22)% Ps. 1,680.2 Ps. 84.9 61.74% Loans Private Sector ................... 4,959.9 1,345.1 (41.81) 1,989.6 102.1 61.85 Public Sector .................... 8,312.9 2,956.9 (37.94) 0.0 0.0 0.00 ----------- ---------- ---------- ----------- ---------- ---------- Total Loans ......................... 13,272.8 4,302.0 (39.38) 1,989.6 102.1 61.85 Other ............................... 1,338.9 448.8 (38.88) 8,096.6 161.6 57.03 ----------- ---------- ---------- ----------- ---------- ---------- TOTAL INTEREST-EARNING ASSETS ....... 15,187.1 4,964.5 (39.26)% 11,766.4 348.6 58.52% Cash and Gold ....................... 226.6 - - 190.7 - - Equity in Other Companies ........... 538.5 - - 253.0 - - Other Assets ........................ 2,090.7 - - 670.0 - - Allowances .......................... (1,281.3) - - (140.8) - - ----------- ---------- ---------- ----------- ---------- ---------- TOTAL ASSETS ........................ Ps.16,761.6 - - Ps.12,739.3 - - LIABILITIES AND EQUITY Deposits Current Accounts ................. Ps. 161.7 Ps. 17.1 (49.36)% Ps. 32.9 Ps. 0.4 55.83% Saving Accounts .................. 1,000.3 6.6 (53.92) 451.5 2.5 54.82 Time Deposits .................... 2,917.4 1,214.1 (35.17) 3,454.1 120.6 59.33 ----------- ---------- ---------- ----------- ---------- ---------- TOTAL INTEREST-BEARING DEPOSITS ..... 4,079.4 1,237.8 (40.33) 3,938.5 123.5 58.78 Argentine Central Bank .............. 7,144.1 2,237.7 (39.88) 3.5 0.1 58.05 Other Financial Entities ............ 198.8 29.8 (47.37) 2,579.9 216.1 66.85 Debt Securities ..................... 16.3 2.4 (47.54) 2,552.2 149.2 62.96 Other ............................... 769.9 200.8 (42.27) 1,613.7 128.6 66.23 ----------- ---------- ---------- ----------- ---------- ---------- TOTAL INTEREST-BEARING LIABILITIES ....................... 12,208.5 3,708.5 (40.32)% 10,687.8 617.5 62.85% Demand deposits ..................... 622.9 - - 232.0 - - Other Liabilities ................... 2,455.7 - - 714.7 - - Minority Interests .................. 147.4 - - - - - Shareholders' Equity ................ 2,431.9 - - - - - ----------- ---------- ---------- ----------- ---------- ---------- TOTAL LIABILITIES AND EQUITY ........ Ps.17,866.4 - - Ps.11,634.5 - - SPREAD AND NET YIELD Interest Rate Spread ................ 1.06% (4.33)% Cost of Funds Supporting Interest-Earning Assets ........... (43.04) 62.03 Net Yield on Interest-Earning Assets ............................ (50.44) 50.43 GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2002 (*) -------------------------------------------------------------- TOTAL -------------------------------------------------------------- INTEREST AVERAGE AVERAGE EARNED/ REAL/ BALANCE PAID RATE -------------------------------------------------------------------------------------------------------------- (in millions of February 28, 2003, constant pesos, except rates) ASSETS Government Securities ....................... Ps. 2,255.6 Ps. 298.6 36.49% Loans Private Sector ........................... 6,949.5 1,447.2 (12.13) Public Sector ............................ 8,312.9 2,956.9 (37.94) ----------- ---------- ---------- Total Loans ................................. 15,262.4 4,404.1 (26.18) Other ....................................... 9,435.5 610.4 43.42 ----------- ---------- ---------- TOTAL INTEREST-EARNING ASSETS ............... 26,953.5 5,313.1 3.43% Cash and Gold ............................... 417.3 - - Equity in Other Companies ................... 791.5 - - Other Assets ................................ 2,760.7 - - Allowances .................................. (1,422.1) - - ----------- ---------- ---------- TOTAL ASSETS ................................ Ps.29,500.9 - - LIABILITIES AND EQUITY Deposits Current Accounts ......................... Ps. 194.6 Ps. 17.5 (31.57)% Saving Accounts .......................... 1,451.8 9.1 (20.11) Time Deposits ............................ 6,371.5 1,334.7 16.06 ----------- ---------- ---------- TOTAL INTEREST-BEARING DEPOSITS ............. 8,017.9 1,361.3 8.35 Argentine Central Bank ...................... 7,147.6 2,237.8 (39.83) Other Financial Entities .................... 2,778.7 245.9 58.68 Debt Securities ............................. 2,568.5 151.6 62.26 Other ....................................... 2,383.6 329.4 31.19 ----------- ---------- ---------- TOTAL INTEREST-BEARING LIABILITIES ............................... 22,896.3 4,326.0 7.84% Demand deposits ............................. 854.9 - - Other Liabilities ........................... 3,170.4 - - Minority Interests .......................... 147.4 - - Shareholders' Equity ........................ 2,431.9 - - ----------- ---------- ---------- TOTAL LIABILITIES AND EQUITY ................ Ps.29,500.9 - - SPREAD AND NET YIELD Interest Rate Spread ........................ (4.41)% Cost of Funds Supporting Interest-Earning Assets ................... 2.83 Net Yield on Interest-Earning Assets .................................... (6.41) |
(*) Rates include the CER adjustment.
The following tables show Grupo Galicia's consolidated average balances, interest earned or paid and nominal interest rates for interest-earning assets and interest-bearing liabilities for the fiscal year ended December 31, 2001.
GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2001 ---------------------------------------------------------------------------------- PESOS DOLLARS ---------------------------------------------------------------------------------- INTEREST AVERAGE INTEREST AVERAGE AVERAGE EARNED/ YIELD/ AVERAGE EARNED/ YIELD/ BALANCE PAID RATE BALANCE PAID RATE --------------------------------------------------------------------------------------------------------------------------- (in millions of February 28, 2003, constant pesos, except rates) ASSETS Government Securities ................ Ps. 43.2 Ps. 6.9 15.97% Ps. 2,488.1 Ps. 270.5 10.87% Loans Private Sector .................... 3,903.3 986.2 25.27 9,840.0 1,192.3 12.12 Public Sector ..................... 225.4 48.5 21.52 6,033.6 979.0 16.23 ---------- --------- -------- ------------ --------- -------- Total Loans .......................... 4,128.7 1,034.7 25.06 15,873.6 2,171.3 13.68 Other ................................ 136.3 8.2 6.02 4,584.3 317.5 6.93 ---------- --------- -------- ------------ --------- -------- TOTAL INTEREST-EARNING ASSETS ........ 4,308.2 1,049.8 24.37% 22,946.0 2,759.3 12.03% Cash and Gold ........................ 462.9 - - 291.5 - - Equity in Other Companies ............ 277.4 - - 347.9 - - Other Assets ......................... 3,019.6 - - 1,074.9 - - Allowances ........................... (317.3) - - (443.7) - - ---------- --------- -------- ------------ --------- -------- TOTAL ASSETS ......................... Ps.7,750.8 - - Ps. 24,216.6 - - LIABILITIES AND EQUITY Deposits Current Accounts .................. Ps. 204.3 Ps. 17.1 8.37% Ps. 535.6 Ps. 35.7 6.67% Saving Accounts ................... 1,006.1 16.9 1.68 1,415.5 21.4 1.51 Time Deposits ..................... 2,285.2 320.7 14.03 11,965.1 1,067.8 8.92 ---------- --------- -------- ------------ --------- -------- TOTAL INTEREST-BEARING DEPOSITS ...... 3,495.6 354.7 10.15 13,916.2 1,124.9 8.08 Argentine Central Bank ............... 111.8 10.8 9.66 37.9 3.1 8.18 Other Financial Entities ............. 37.7 14.3 37.93 1,670.8 132.9 7.95 Debt Securities ...................... - - - 2,934.2 245.7 8.37 Other ................................ 1.5 0.2 13.33 1,841.6 138.8 7.54 ---------- --------- -------- ------------ --------- -------- TOTAL INTEREST-BEARING LIABILITIES ........................ 3,646.6 380.0 10.42% 20,400.7 1,645.4 8.07% Demand deposits ...................... 1,079.7 - - 121.7 - - Other Liabilities .................... 1,070.3 - - 2,335.7 - - Minority Interests ................... 259.3 - - - - - Shareholders' Equity ................. 3,053.4 - - - - - ---------- --------- -------- ------------ --------- -------- TOTAL LIABILITIES AND EQUITY ......... Ps.9,109.3 - - Ps. 22,858.1 - - SPREAD AND NET YIELD Interest Rate Spread ................. 13.95% 3.96% Cost of Funds Supporting Interest-Earning Assets ............ 8.82 7.17 Net Yield on Interest-Earning Assets ............................. 15.55 4.85 GRUPO GALICIA, FISCAL YEAR ENDED DECEMBER 31, 2001 ----------------------------------------------------------- TOTAL ----------------------------------------------------------- INTEREST AVERAGE AVERAGE EARNED/ YIELD/ BALANCE PAID RATE ----------------------------------------------------------------------------------------------------- (in millions of February 28, 2003, constant pesos, except rates) ASSETS Government Securities ................ Ps. 2,531.3 Ps. 277.4 10.96% Loans Private Sector .................... 13,743.3 2,178.5 15.85 Public Sector ..................... 6,259.0 1,027.5 16.42 ----------- ----------- -------- Total Loans .......................... 20,002.3 3,206.0 16.03 Other ................................ 4,720.6 325.7 6.90 ----------- ----------- -------- TOTAL INTEREST-EARNING ASSETS ........ 27,254.2 3,809.1 13.98% Cash and Gold ........................ 754.4 - - Equity in Other Companies ............ 625.3 - - Other Assets ......................... 4,094.5 - - Allowances ........................... (761.0) - - ----------- ----------- -------- TOTAL ASSETS ......................... Ps.31,967.4 - - LIABILITIES AND EQUITY Deposits Current Accounts .................. Ps. 739.9 Ps. 52.8 7.14% Saving Accounts ................... 2,421.6 38.3 1.58 Time Deposits ..................... 14,250.3 1,388.5 9.74 ----------- ----------- -------- TOTAL INTEREST-BEARING DEPOSITS ...... 17,411.8 1,479.6 8.50 Argentine Central Bank ............... 149.7 13.9 9.29 Other Financial Entities ............. 1,708.5 147.2 8.62 Debt Securities ...................... 2,934.2 245.7 8.37 Other ................................ 1,843.1 139.0 7.54 ----------- ----------- -------- TOTAL INTEREST-BEARING LIABILITIES ........................ 24,047.3 2,025.4 8.42% Demand deposits ...................... 1,201.4 - - Other Liabilities .................... 3,406.0 - - Minority Interests ................... 259.3 - - Shareholders' Equity ................. 3,053.4 - - ----------- ----------- -------- TOTAL LIABILITIES AND EQUITY ......... Ps.31,967.4 - - SPREAD AND NET YIELD Interest Rate Spread ................. 5.56% Cost of Funds Supporting Interest-Earning Assets ............ 7.43 Net Yield on Interest-Earning Assets ............................. 6.54 |
CHANGES IN NET INTEREST INCOME--VOLUME AND RATE ANALYSIS
The table on the following page allocates, by currency, changes in Grupo Galicia's consolidated interest income and interest expenses between changes in the average volume of interest-earning assets and interest-bearing liabilities and changes in their respective nominal interest rates for (i) the fiscal year ended December 31, 2003 compared with the fiscal year ended December 31, 2002; and (ii) the fiscal year ended December 31, 2002, compared with the fiscal year ended December 31, 2001. Differences related to rate or volume are allocated proportionally to the rate variance and the volume variance, respectively.
FISCAL YEAR 2003/ FISCAL YEAR 2002, FISCAL YEAR 2002/ FISCAL YEAR 2001, INCREASE (DECREASE) DUE TO CHANGES IN INCREASE (DECREASE) DUE TO CHANGES IN ----------------------------------------- ------------------------------------------- VOLUME RATE NET CHANGE VOLUME RATE NET CHANGE ----------------------------------------- -------------------------------------------- (in millions of pesos) (in millions of February 28, 2003, constant pesos) INTEREST EARNING ASSETS Government securities Pesos.................. Ps. (81.8) Ps. (108.6) Ps. (190.4) Ps. 186.6 Ps. 20.2 Ps. 206.8 Dollars................ 8.5 (45.2) (36.7) (70.1) (115.5) (185.6) ----------------------------------------- -------------------------------------------- Total ....................... (73.3) (153.8) (227.1) 116.5 (95.3) 21.2 Loans Private Sector Pesos.................. (484.9) (154.6) (639.5) 282.3 76.6 358.9 Dollars................ 25.2 (38.1) (12.9) (632.8) (457.4) (1,090.2) ----------------------------------------- -------------------------------------------- Total ....................... (459.7) (192.7) (652.4) (350.5) (380.8) (731.3) Public Sector Pesos.................. (236.9) (2,377.4) (2,614.3) 2,856.5 51.9 2,908.4 Dollars................ - - - (489.6) (489.4) (979.0) ----------------------------------------- -------------------------------------------- Total ....................... (236.9) (2,377.4) (2,614.3) 2,366.9 (437.5) 1,929.4 Other Pesos.................. (9.7) (378.0) (387.7) 288.8 151.8 440.6 Dollars................ (38.2) (59.0) (97.2) (2,207.0) 2,051.1 (155.9) ----------------------------------------- -------------------------------------------- Total ....................... (47.9) (437.0) (484.9) (1,918.2) 2,202.9 284.7 TOTAL INTEREST-EARNING ASSETS Pesos.................. (813.3) (3,018.6) (3,831.9) 3,614.2 300.5 3,914.7 Dollars................ (4.5) (142.3) (146.8) (3,399.5) 988.8 (2,410.7) ----------------------------------------- -------------------------------------------- TOTAL ....................... Ps.(817.8) Ps. (3,160.9) Ps. (3,978.7) Ps. 214.7 Ps.1,289.3 Ps. 1,504.0 ----------------------------------------- -------------------------------------------- INTEREST BEARING LIABILITIES Demand Account Pesos.................. 2.9 (17.0) (14.1) - - - Dollars................ - (0.4) (0.4) (19.0) (16.3) (35.3) ----------------------------------------- -------------------------------------------- Total ....................... 2.9 (17.4) (14.5) (19.0) (16.3) (35.3) Saving Account Pesos.................. (4.8) 1.6 (3.2) - (10.3) (10.3) Dollars................ (0.9) (1.6) (2.5) (9.8) (9.1) (18.9) ----------------------------------------- -------------------------------------------- Total ....................... (5.7) 0.0 (5.7) (9.8) (19.4) (29.2) Time Deposits Pesos.................. (247.4) (736.1) (983.5) 110.1 783.3 893.4 Dollars................ (52.6) (41.2) (93.8) (510.2) (437.0) (947.2) ----------------------------------------- -------------------------------------------- Total ....................... (300.0) (777.3) (1,077.3) (400.1) 346.3 (53.8) With the Argentine Central Bank Pesos.................. 331.4 (2,096.0) (1,764.6) 2,149.4 77.5 2,226.9 Dollars................ - (0.1) (0.1) (1.7) (1.3) (3.0) ----------------------------------------- -------------------------------------------- Total ....................... 331.4 (2,096.1) (1,764.7) 2,147.7 76.2 2,223.9 With Other Financial Entities Pesos.................. (3.2) 43.3 40.1 18.1 (2.6) 15.5 Dollars................ (49.8) (45.3) (95.1) 75.8 7.4 83.2 ----------------------------------------- -------------------------------------------- Total ....................... (53.0) (2.0) (55.0) 93.9 4.8 98.7 Negotiable Obligations Pesos.................. (0.3) (2.1) (2.4) 2.4 - 2.4 Dollars................ 8.1 (3.1) 5.0 (29.2) (67.3) (96.5) ----------------------------------------- -------------------------------------------- Total........................ 7.8 (5.2) 2.6 (26.8) (67.3) (94.1) Other liabilities Pesos.................. (158.4) (32.8) (191.2) 200.5 0.1 200.6 Dollars................ (21.2) (49.0) (70.2) (19.2) 9.0 (10.2) ----------------------------------------- -------------------------------------------- Total ....................... (179.6) (81.8) (261.4) 181.3 9.1 190.4 TOTAL INTEREST BEARING LIABILITIES Pesos.................. (79.8) (2,839.1) (2,918.9) 2,480.5 848.0 3,328.5 Dollars................ (116.4) (140.7) (257.1) (513.3) (514.6) (1,027.9) ----------------------------------------- -------------------------------------------- TOTAL ....................... Ps.(196.2) Ps. (2,979.8) Ps. (3,176.0) Ps. 1,967.2 Ps. 333.4 Ps. 2,300.6 |
INTEREST-EARNING ASSETS--NET YIELD ON INTEREST-EARNING ASSETS
The following table analyzes, by currency of denomination, the levels of Grupo Galicia's and Banco Galicia's average interest-earning assets and net interest earned, and illustrates the net yields and spreads obtained, for each of the periods indicated.
GRUPO GALICIA ----------------------------------------------------------- FISCAL YEAR ENDED DECEMBER 31, ----------------------------------------------------------- 2003 2002 2001 ----------------------------------------------------------- (in millions of (in millions of February 28, 2003, pesos, except rates) constant pesos, except rates) TOTAL AVERAGE INTEREST-EARNING ASSETS Pesos...................................................... Ps. 12,130.3 Ps. 15,187.1 Ps. 4,308.2 Dollars.................................................... 8,594.8 11,766.4 22,946.0 ------------------------------------------------------- TOTAL........................................................... 20,725.1 26,953.5 27,254.2 NET INTEREST EARNED (1) Pesos...................................................... 343.0 1,256.0 669.8 Dollars.................................................... (158.6) (268.9) 1,113.9 ------------------------------------------------------- TOTAL........................................................... 184.4 987.1 1,783.7 NET YIELD ON INTEREST-EARNING ASSETS (2) (%) Pesos...................................................... 2.83% 8.27% 15.55% Dollars.................................................... (1.85) (2.29) 4.85 WEIGHTED-AVERAGE YIELD.......................................... 0.89 3.66 6.54 INTEREST SPREAD, NOMINAL BASIS (3) (%) Pesos...................................................... 2.22 2.31 13.95 Dollars.................................................... (2.42) (2.82) 3.96 WEIGHTED-AVERAGE YIELD.......................................... 0.27 0.82 5.56 NET YIELD ON INTEREST-EARNING ASSETS, REAL BASIS (4) (%) Pesos...................................................... - (50.44) - Dollars.................................................... - 50.43 - WEIGHTED-AVERAGE YIELD.......................................... - (6.41) - INTEREST SPREAD, REAL BASIS (4) (%) Pesos...................................................... - 1.06 - Dollars.................................................... - (4.33) - WEIGHTED-AVERAGE YIELD.......................................... - (4.41) - ======================================================= |
(*) Rates have been annualized.
(1) Net interest earned corresponds to the Group's or the Bank's net financial income plus:
- Credit related fees (included in "Income from Services - In Relation to Lending Transactions" in the Income Statement) - Contributions to the deposit insurance system, and contributions and taxes on financial income included in the income statement line "Financial Expenses - Other," less:
- Net income from the corporate securities included under "Financial Income/Expenses- Interest Income and Holdings Gains/Losses from Government and Corporate Securities," in the income statement and
- Differences in quotation of gold and foreign currency and premiums on foreign currency transactions, included in "Financial Income/Expenses - Other," in the income statement.
(2) Net interest earned, divided by average interest-earning assets.
(3) Interest spread, nominal basis is the difference between the average nominal interest rate on interest-earning assets and the average nominal interest rate on interest-bearing deposits.
(4) Net interest margin and interest spread, presented on a real basis, when compared with the corresponding information presented on a nominal basis, reflect the gain or loss in purchasing power of the dollar caused by the difference between the pesos fluctuation and inflation in Argentina for each period.
GOVERNMENT AND CORPORATE SECURITIES
The following table shows Grupo Galicia's holdings of government and corporate securities at the balance sheet dates, and the breakdown of the portfolio in accordance with the Argentine Central Bank classification system
and by the securities' currency of denomination. As of December 31, 2003, the Bank's holdings of government and corporate securities were identical to its net position as the Bank did not enter into any forward purchases or sales and no spot transactions pending settlement were outstanding as of that date.
GRUPO GALICIA, --------------------------------------------- AS OF DECEMBER 31, --------------------------------------------- 2003 2002 --------------------------------------------- (in millions of (in millions of pesos) February 28, 2003, constant pesos) GOVERNMENT SECURITIES Pesos Trading.......................................................... Ps. 313.1 Ps. 2.5 Investments...................................................... - - Available for Sale............................................... - - Unlisted Securities.............................................. 79.3 140.4 --------------------------------------- TOTAL GOVERNMENT SECURITIES IN PESOS.................................. Ps. 392.4 Ps. 142.9 Dollars Trading.......................................................... Ps. 14.5 Ps. 4.8 Investments...................................................... 2,485.1 1,673.0 Available for Sale............................................... - - Unlisted Securities ............................................. 6.9 6.2 --------------------------------------- TOTAL GOVERNMENT SECURITIES IN DOLLARS................................ Ps. 2,506.5 Ps. 1,684.0 --------------------------------------- TOTAL GOVERNMENT SECURITIES........................................... Ps. 2,898.9 Ps. 1,826.9 CORPORATE EQUITY SECURITIES (QUOTED) Pesos............................................................ - - Dollars.......................................................... - - --------------------------------------- TOTAL CORPORATE EQUITY SECURITIES .................................... - - --------------------------------------- TOTAL GOVERNMENT AND CORPORATE EQUITY SECURITIES ..................... Ps. 2,898.9 Ps. 1,826.9 MUTUAL FUNDS.......................................................... - - CORPORATE DEBT SECURITIES Pesos............................................................ Ps. 0.2 Ps. 0.2 Dollars.......................................................... 1.0 2.7 --------------------------------------- TOTAL CORPORATE DEBT SECURITIES....................................... Ps. 1.2 Ps. 2.9 --------------------------------------- TOTAL GOVERNMENT AND CORPORATE SECURITIES ............................ Ps. 2,900.1 Ps. 1,829.8 ======================================= |
As of December 31, 2003, the Group's portfolio of government securities
amounted to Ps. 2,898.9 million. Of such total Ps. 2,897.3 million corresponded
to the Bank and the remaining Ps. 1.6 million to Sudamericana Holding S.A. The
Bank's total mainly comprised (i) peso-denominated Lebac for Ps. 305.5 million
(held for trading in the Argentine Central Bank classification system), (ii)
peso-denominated Fiscal Credit Certificates (unlisted) for Ps. 78.6 million, and
(iii) dollar-denominated Argentine Republic External Notes for Ps. 875.1 million
and BODEN 2012 for Ps. 1,610.0 million (held for investment in the Argentine
Central Bank classification system), all of them recorded by the Bank in
Argentina. The BODEN 2012 corresponded to the bonds actually received by the
Bank as compensation for the effects of asymmetric pesification (compensatory
and hedge bonds).
The increase in the Group's holdings of government securities in 2003 over the Ps. 1,826.9 million held as of December 31, 2002, was mainly due to the receipt by the Bank of additional compensatory BODEN 2012 during 2003, in the amount of US$609.2 million of nominal BODEN 2012, net of US$137 million of nominal BODEN 2012 transferred to Galicia Uruguay and used by the latter to settle the exchange offer made to its depositors in 2003. This increase was partially offset by the decrease in the exchange rate during 2003, from Ps. 3.336 as of December 31, 2002 to Ps. 2.933 as of December 31, 2003.
The increase in the Group's holdings of government securities in 2002 as compared with the Ps. 273.2 million held as of December 31, 2001, was mainly due to the recording in 2002, by the Bank, of BODEN 2012 as compensation for asymmetric pesification, as established by Decrees No. 214/02, 494/02, 905/02 and 2167/02, the latter published in the Official Gazette on October 29, 2002. See "--Main Regulatory Changes in 2002 and 2003--
Compensation to Financial Institutions." This increase was also attributable to the increase in the exchange rate during 2002.
The BODEN 2012 effectively received by the Bank are recorded as government securities while the BODEN 2012 still to be received are recorded as "Other Receivables from Financial Brokerage."
In accordance with Argentine Central Bank rules, quoted government securities held-for-trading purposes are carried at their Argentine closing market quotation less estimated selling costs.
Argentine Central Bank Communique "A" 3857, dated January 7, 2003, established that financial institutions could record as investments, only those securities incorporated to their balance sheets through December 31, 2002. After that date, the value of any securities (except the compensatory and the hedge bonds received and to be received according to applicable compensation rules or other compensation to be received) incorporated into a bank's position will be marked-to-market.
As of December 31, 2003, in accordance with Argentine Central Bank accounting rules, the Bank recorded the BODEN 2012 already received and its right to acquire BODEN 2012 in the future as assets having equal value to 100% of the face value of such BODEN 2012. The estimated market value of these assets is significantly lower. As of June 25, 2004, the BODEN 2012 were trading at approximately 66.90% of par value. See Item 3. "Key Information--Risk Factors--Risk Factors Relating to the Bank--The Bank has recorded BODEN 2012 and its rights to receive or acquire future BODEN 2012 as assets having a value equal to the face amount of the BODEN 2012 received or to be received and acquired, which does not reflect its actual market value," Item 3. "Key Information--Risk Factors--Risk Factors Relating to the Bank--There is a possibility that the Bank receives less BODEN 2012 from the Argentine government than it believes it is entitled to receive," and Item 3. "Key Information--Risk Factors--Risk Factors Relating to the Bank--The BODEN 2012 may be subject to subsequent renegotiation." The Argentine Republic External Notes were held for investment and carried at their face value.
The Argentine Republic External Notes and the Tax Credit Certificates are in payment default.
Through its Communique "A" 3278, the Argentine Central Bank established that effective June 1, 2001, quoted government securities in investment accounts had to be valued at their acquisition cost increased by accruing their internal rate of return over the period elapsed since the date of inclusion of the securities in the investment account category. This was also applicable to the securities incorporated in investments accounts prior to June 1, 2001. In this case, the acquisition cost was established as their book value as of May 31, 2001, resulting from the previous valuation rules. The change in valuation rules was not be retroactive nor should it generate any accounting adjustments. For government securities previously included in trading accounts, the cost value is their closing market value as of the day before their transfer to an investment account. In accordance with Argentine Central Bank rules, the carrying value of investment-account securities must be reduced at each month end for the positive difference between their book value and their market value increased by 20%.
For the securities received by financial institutions as compensation for the effects of asymmetric pesification under the provisions of Decrees No. 905/02 and No. 2167/02 carried at their face value (in the Bank's case, BODEN 2012), the reduction mentioned in the preceding paragraph for the difference between book value and market value increased by 20.0% is not applicable. However, on October 29, 2002, Argentine Central Bank Communique "A" 3785 restricted the distribution of cash dividends by establishing that banks should adjust their earnings to be distributed as cash dividends with the difference between the market value and the carrying value of these bonds.
Beginning March 1, 2000, quoted government securities classified as investments began to be carried at their acquisition cost increased at the end of each service period by the corresponding coupon rate.
Unquoted government securities are carried at the lower of cost or net realizable value plus any applicable contractual adjustments for movements in price indices, or at their technical values, which are government-published schedules of value that increase over the term of the security.
We also own, manage and trade a portfolio of corporate securities. Unquoted corporate debt securities are carried at the residual value plus accrued interest. Quoted corporate debt and equity securities are considered as held for trading and, therefore, are carried at market value.
The following table analyzes the remaining maturity and weighted-average yield of Grupo Galicia's holdings of investment and trading government and corporate securities as of December 31, 2003. The Group's investment and trading portfolio yields do not contain any tax equivalency adjustments.
MATURITY YIELD ----------------------------------------------------------------------------------------------------- MATURING MATURING AFTER 1 AFTER 5 YEARS MATURING PAST MATURING YEAR BUT WITHIN 5 BUT WITHIN 10 AFTER DUE/CALLABLE WITHIN 1 YEAR YEARS YEARS 10 YEARS ----------------------------------------------------------------------------------------------------- TOTAL BOOK BOOK BOOK BOOK YIELD BOOK YIELD BOOK YIELD VALUE VALUE VALUE YIELD (1) VALUE (1) VALUE (1) VALUE (1) ----------------------------------------------------------------------------------------------------- (in millions of pesos) GOVERNMENT SECURITIES HELD FOR TRADING AND BROKERAGE PURPOSES (CARRIED AT MARKET VALUE) Pesos....................... Ps. 313.1 Ps. 2.8 Ps. 298.7 10.6% Ps. 11.6 9.1% - - - - Dollars 14.5 0.7 1.7 0.6 6.6 1.6 Ps. 5.5 1.6% - - HELD FOR INVESTMENT (CARRIED AT AMORTIZED COST) Pesos....................... - - - - - - - - - - Dollars..................... 2,485.1 875.1 - - 805.0 1.6 805.0 1.6 - - UNLISTED SECURITIES Pesos....................... 79.3 - 0.7 9.0 78.6 47.7 - - - - Dollars..................... 6.9 - - - 2.6 1.3 4.3 1.3 - - TOTAL GOVERNMENT SECURITIES... Ps. 2,898.9 Ps. 878.6 Ps. 301.1 10.6% Ps. 904.4 5.7% Ps. 814.8 1.6% - - CORPORATE DEBT SECURITIES..... 1.2 - - - 0.2 - 1.0 - - - MUTUAL FUNDS.................. - - - - - - - - - - TOTAL PORTFOLIO............... Ps. 2,900.1 Ps. 878.6 Ps. 301.1 10.6% Ps. 904.6 5.7% Ps. 815.8 1.6% - - |
(1) Effective yield based on December 31, 2003 quoted market values.
LOAN PORTFOLIO
The following table analyzes Banco Galicia's loan portfolio by type of loan and total loans with guarantees. Total loans reflect the Bank's loan portfolio including past due principal amounts.
AS OF DECEMBER 31, AS OF JUNE 30, -------------------------------------------------------- ------------------------- 2003 2002 2001 2000 2000 1999 ------------------------------------------------------------------------------------ (in millions of pesos ) (in millions of February 28, 2003, constant pesos) Principal and Interest Nonfinancial Public Sector................... Ps. 7,751.4 Ps. 7,634.7 Ps. 8,669.7 Ps. 5,762.7 Ps. 5,516.8 Ps. 4,247.4 Local Financial Sector....................... 194.7 134.8 190.8 1,121.4 795.9 939.8 Nonfinancial Private Sector and Residents Abroad (1) Advances................................... 219.1 227.0 811.1 968.0 1,742.7 1,505.4 Notes...................................... 1,387.8 1,544.3 3,888.9 4,948.6 5,408.8 4,766.8 Mortgage Loans............................. 719.6 864.0 3,298.2 3,504.6 2,991.9 2,780.8 Pledge Loans............................... 54.6 191.5 841.8 875.9 858.5 905.0 Personal Loans............................. 55.2 120.0 583.4 812.0 728.0 674.0 Credit-Cards Loans......................... 818.8 585.0 1,875.3 1,667.1 1,445.0 1,230.9 Placements in Correspondent Banks.......... 172.4 158.3 377.5 770.6 1,229.5 1,679.7 Other Loans................................ 217.9 251.4 196.0 271.6 178.7 262.8 Accrued Interest, Adjustment and Quotation Differences Receivable......... 523.1 608.5 392.1 353.5 313.6 290.0 Documented Interest........................ (2.5) (10.8) (55.1) (96.9) (81.3) (80.0) ------------ ------------ ------------ ------------ ------------ ----------- Total ........................................ 12,112.1 12,308.7 21,069.7 20,959.1 21,128.1 19,202.6 Allowance for Loan Losses..................... (1,177.3) (1,681.8) (1,050.3) (596.0) (576.9) (591.2) ------------ ------------ ------------ ------------ ------------ ----------- TOTAL LOANS................................... Ps. 10,934.8 Ps. 10,626.9 Ps. 20,019.4 Ps. 20,363.1 Ps. 20,551.2 Ps.18,611.4 ------------ ------------ ------------ ------------ ------------ ----------- |
AS OF DECEMBER 31, AS OF JUNE 30, -------------------------------------------------------- ------------------------- 2003 2002 2001 2000 2000 1999 ------------------------------------------------------------------------------------ (in millions of pesos ) (in millions of February 28, 2003, constant pesos) Secured Loans With Preferred Guarantees (2) (3).......... Ps. 1,228.8 Ps. 9,280.5 Ps. 13,389.8 Ps. 8,677.9 Ps. 9,128.3 Ps. 8,519.3 Other Guarantees (3)....................... 8,636.7 523.0 1,689.8 2,192.4 2,008.5 2,111.3 ------------ ------------ ------------ ------------ ------------ ----------- TOTAL SECURED LOANS........................... Ps. 9,865.5 Ps. 9,803.5 Ps. 15,079.6 Ps. 10,870.3 Ps. 11,136.8 Ps.10,630.6 ============ ============ ============ ============ ============ =========== |
(1) Categories of loans above include:
- Advances: short-term obligations drawn on by customers through overdrafts. Also, prefinancing of exporters and other customers in connection with documents evidencing the future receipt of cash.
- Notes: endorsed promissory notes, negotiable obligations and other promises to pay signed by one borrower or group of borrowers and factored loans.
- Mortgage loans: loans granted to purchase or improve real estate and collateralized by such real estate and commercial loans secured by a real estate mortgage.
- Pledge loans: loans secured by collateral (such as cars or machinery) other than real estate, were such collateral is an integral part of the loan documents.
- Personal loans: loans to individuals.
- Credit Cards Loans: loans granted through credit cards to credit card holders.
- Placements in correspondent banks: short-term loans to other banks and short-term loans from Banco Galicia Uruguay S.A. to major international banks outside of Uruguay.
- Other loans: loans not included in other categories.
- Documented interest-discount on notes and bills.
(2) Preferred guarantees include mortgages on real estate property or pledges on movable property, such as cars or machinery, where the Bank has the priority right, endorsements of the Federal Office of the Secretary of Finance, pledges of Argentine Government securities, or gold or cash collateral.
(3) Pursuant to Argentine Central Bank Communique "A" 3918, beginnning in April 2003, tax revenues shared by the national government and the provinces ceased to be considered "Preferred Guarantees."
As of December 31, 2003, and since 2002, loans to the nonfinancial public sector have represented the Bank's most important loan portfolio.
As of December 31, 2003, the portfolio of loans to the nonfinancial public sector, valued pursuant to Argentine Central Bank Communique "A" 3911, amounted to Ps. 7,751.4 million (principal amount, adjustment and interests) valued at their present value calculated by applying a 3.0% discount rate in accordance with Argentine Central Bank Communique "A" 3911. Of this total amount:
(i) Ps. 4,277.7 million were secured loans created by Decree No. 1387/01, which the Bank received in exchange for its eligible portfolio of debt instruments of the national government, including bonds and loans to the national government, the terms and conditions of which were later modified by the government, including their pesification.
(ii) Ps. 3,473.7 million were secured loans created by Decree No. 1579/02, which the Bank received in exchange for its portfolio of loans to the provincial governments and for the loans made to such governments through the FFAEFyS. This amount included Ps. 22.0 million of a loan for which the exchange had not been completed as of December 31, 2003. The Bank tendered in the exchange under Decree No. 1579/02 all of its portfolio of loans to provincial governments and opted to exchange all of the BOGAR to be received in the exchange for promissory notes. As of December 31, 2003, the Bank had received BOGAR for the provincial debt for which the exchange had been completed and after the close of the fiscal year it received BOGAR for the remaining portion of provincial debt. As of the date of this annual report, the Bank has not yet received the promissory notes but expects to receive them in the future.
The application in 2003 of Communique "A" 3911 reduced by Ps. 198.1 million the book value of the Bank's secured loan portfolio. For a description of the valuation methodology introduced by Communique
"A"3911, see "--Argentine Banking System and Regulation--Argentine Banking Regulation--Valuation of Public-Sector Assets" and Item 5. "Operating and Financial Review and Prospects--Item 5A. Operating Results--Results of Operations of Grupo Galicia for the Fiscal Years Ending December 31, 2003, December 31, 2002 and December 31, 2001."
As of the date of this annual report, all of the secured loans are current.
As of December 31, 2003, loans to the financial public sector amounted to Ps. 194.7 million and the remaining Ps. 4,166.0 million corresponded to gross loans (plus adjustments and accrued interest) to the nonfinancial private sector. Net loans to the private sector amounted to Ps. 2,988.7 million.
The nominal and relative decrease of the portfolio of loans to the private sector in 2002 and 2003, as compared to pre-crisis periods, is related to their pesification at the Ps. 1.0 per U.S. dollar parity and to the exceptions provided for by the regulations in connection with the applicability of the adjustment by the CER and their adjustment mostly by the CVS, beginning in September 2003 only. This decrease also reflects payments and prepayments made by private-sector debtors (in part, in 2002, by using their restructured deposits held at the Bank to pay off such loans), while certain secured loans begin to amortize in 2005 only. In addition this decrease reflects the fact that most loans to the private sector were not adjusted by an index (until 2003) while the previous periods figures where restated by using the WPI variation. Similarly, the decrease in the private sector portfolio was also the consequence of the securitization or sale of part of the Bank's loan portfolio in the first half of 2002 in order to restore the Bank's liquidity within the framework of the Galicia capitalization and liquidity plan.
During 2003, the only type of loan to the private sector that showed an increase was credit-card lending, which increase was mainly the result of an increase in the loan portfolio of the regional credit card companies.
The decrease in the amount of secured loans during 2002 was mainly due to: (i) the sale of secured loans to the "Secured Loans Trust" in exchange for cash as part of the Galicia capitalization and liquidity plan (see Item 5. "Operating and Financial Review and Prospects--Item 5A. Operating Results--Securitization of Assets"); (ii) to the use of secured loans to acquire the government securities that were delivered to depositors with the Bank that participated in the exchange of restructured deposits for government securities ("Canje I") established by Decree No. 905/02, which was settled in December 2003 (see "--Main Regulatory Changes in 2002 and 2003--Deposits"); and (iii) to the recording of the secured loans granted as collateral of the loan from FFAEFyS as "Miscellaneous Receivables (see Item 5. "Operating and Financial Review and Prospects--Item 5A. Operating Results--Consolidated Assets").
In 2001, through Decree No. 1387/03, the government offered to swap voluntarily debt instruments (bonds and loans) held by local investors representing an exposure to the national and provincial governments for secured loans. The Bank decided to swap all of its eligible portfolio of government securities and loans made to the national and provincial public sectors in exchange for secured loans. The swap of debt instruments originally representing an exposure to the national public sector was completed on November 6, 2001. The swap of eligible debt instruments originally representing an exposure to the provinces was not completed until late 2003. As of December 31, 2001, the Bank had recorded the provincial loans in accordance with the applicable terms and conditions of the new secured loans to be received.
Once the Argentine currency devaluation was effective in January 2002, Decree No. 471/02 enacted on March 13, 2002, established that obligations denominated in U.S. dollars of the national, provincial and municipal public sectors outstanding as of February 3, 2002 would be converted into pesos at the exchange rate of Ps. 1.40 per U.S. dollar and would be adjusted by the CER. Moreover, said Decree established that public sector's obligations would bear a fixed annual interest rate ranging from 3.0% to 5.5% depending on their average life.
Decree No. 1579, dated August 28, 2002, established a new restructuring of provincial government debt. The restructuring consisted of a voluntary exchange of provincial government debt for bonds ("BOGAR") or loans (promissory notes), issued by the FFAEFyS and secured by the federal government's tax receipts shared with the provinces, with a 16-year term, a 2% fixed annual interest rate and amortization in 156 monthly and consecutive installments beginning on March 4, 2005. This Decree included as eligible for tender in the exchange the financial assistance provided to provincial governments through loans the FFAEFyS, a portfolio that was not eligible under
the provisions of Decree No. 1387/01. The Bank tendered in the exchange under Decree No. 579/02 all of its portfolio of loans to provincial governments and pursuant to the option provided by section 3, subsection k of the Decree, opted to exchange all of the BOGAR to be received in the exchange for promissory notes.
Loans by Type of Borrower
The following table analyzes the breakdown of Banco Galicia's total loan portfolio, by type of borrower at December 31, 2003, 2002 and 2001.
AS OF DECEMBER 31, ---------------------------------------------------------------------------------- 2003 2002 2001 ---------------------------------------------------------------------------------- AMOUNT % OF TOTAL AMOUNT % OF TOTAL AMOUNT % OF TOTAL ---------------------------------------------------------------------------------- (in millions of pesos) (in millions of February 28, 2003, constant pesos) Corporate................................ Ps. 1,820.4 15.03% Ps. 2,130.8 17.31% Ps. 2,728.6 12.95% Middle-Market Companies ................. 850.3 7.02 890.1 7.23 3,129.8 14.85 Commercial Loans........................... 2,670.7 22.05 3,020.9 24.54 5,858.4 27.80 Individuals................................ 1,324.7 10.94 1,297.7 10.54 4,466.0 21.20 Financial Sector (1)....................... 357.4 2.95 172.0 1.40 658.6 3.13 Non Financial Public Sector................ 7,751.4 64.00 7,634.7 62.03 8,669.7 41.15 Other Loans................................ 7.9 0.06 183.4 1.49 1,417.0 6.72 --------------------------------------------------------------------------------- TOTAL (2).................................. Ps. 12,112.1 100.00% Ps. 12,308.7 100.00% Ps. 21,069.7 100.00% --------------------------------------------------------------------------------- |
(1) Includes local and international financial sector. Financial Sector loans are primarily composed by interbank loans(call money loans), overnight deposit at international money center banks and loans to provincial banks.
(2) Before the allowance for loan losses.
Loans by Economic Activity
The following table sets forth at the dates indicated an analysis of Banco Galicia's loan portfolio according to the borrowers' main economic activity. Figures include principal and interest.
AS OF DECEMBER 31, --------------------------------------------------------------- 2003 2002 2001 --------------------------------------------------------------- % OF % OF % OF AMOUNT TOTAL AMOUNT TOTAL AMOUNT TOTAL --------------------------------------------------------------- (in millions of pesos, except (in millions of February 28, 2003, percentages) constant pesos, except percentages) Financial Sector................... Ps. 357.4 2.95% Ps. 172.0 1.40% Ps. 658.6 3.13% Services Nonfinancial Government Sector... 7,751.4 64.00 7,634.7 62.03 8,669.7 41.15 Comunic., Transportation Health and Others 320.2 2.64 334.1 2.71 594.5 2.82 Electricity, Gas, Water Supply and Sewage Services....... 239.0 1.97 235.8 1.92 344.4 1.63 Other Financial Services......... 362.2 2.99 548.5 4.45 399.3 1.90 ----------- ------ ----------- ------- ----------- ------- Total.......................... 8,672.8 71.60 8,753.1 71.11 10,007.9 47.50 Primary Products Agriculture and Livestock........ 389.6 3.22 464.5 3.77 1370.2 6.50 Fishing, Forestry and Mining..... 93.0 0.77 91.1 0.74 94.7 0.45 ----------- ------ ----------- ------- ----------- ------- Total........................... 482.6 3.99 555.6 4.51 1,464.9 6.95 Consumer........................... 1,258.5 10.39 1,106.4 8.99 4,466.0 21.20 Retail Trade....................... 278.5 2.30 276.4 2.25 633.3 3.01 Wholesale Trade.................... 67.7 0.56 67.6 0.55 247.0 1.17 Construction....................... 404.2 3.34 513.0 4.17 915.3 4.34 Manufacturing Foodstuffs....................... 166.7 1.38 205.0 1.66 484.8 2.30 Transportation Materials......... 18.6 0.15 27.9 0.23 92.3 0.44 Chemicals and Oil................ 109.5 0.90 110.6 0.90 286.2 1.36 Manufacturing Industries......... 235.0 1.94 391.9 3.18 797.5 3.78 ----------- ------ ----------- ------- ----------- ------- Total........................... 529.8 4.37 735.4 5.97 1,660.8 7.88 Other Loans (1).................... 60.6 0.50 129.2 1.05 1,015.9 4.82 ----------- ------ ----------- ------- ----------- ------- TOTAL (2)........................ Ps.12,112.1 100.00% Ps.12,308.7 100.00% Ps.21,069.7 100.00% ----------- ------ ----------- ------- ----------- ------- |
(1) "Other loans" is an Argentine Central Bank classification that primarily includes loans in judicial proceedings.
(2) Before the allowance for loan losses.
In the table above, the loans that are identified as consumer loans are classified as consumer loans for purposes of the Argentine Central Bank classification and provisioning system. All of the other loans represent commercial loans for the purpose of the Argentine Central Bank's classification and provisioning system. See " -- Argentine Central Bank's Loan Classification and Loan Loss Provisions."
Maturity Composition of the Loan Portfolio
The following table sets forth an analysis by type of loan and time remaining to maturity of Banco Galicia's loan portfolio before deducting the allowance for loan losses at December 31, 2003.
AFTER 6 AFTER 1 MONTHS AFTER 1 AFTER 3 MONTH BUT BUT YEAR BUT YEARS BUT TOTAL AT WITHIN 1 WITHIN 6 WITHIN 12 WITHIN 3 WITHIN 5 AFTER 5 DECEMBER MONTH MONTHS MONTHS YEARS YEARS YEARS 31, 2003 ---------- --------- --------- --------- --------- ----------- ----------- (in millions of pesos) Nonfinancial Public Sector (1).... - - Ps. 0.6 Ps. 335.9 Ps. 424.6 Ps. 6,990.3 Ps. 7,751.4 Financial Sector (1).............. Ps. 144.1 Ps. 6.2 7.4 29.6 7.4 - 194.7 Private Sector and Residents Abroad............................ 2,630.4 334.4 213.7 412.0 254.4 321.1 4,166.0 - Advances..................... 183.7 34.1 0.4 0.9 - - 219.1 - Promissory Notes............. 674.7 230.5 132.3 183.7 102.1 64.5 1,387.8 - Mortgages Loans.............. 41.5 41.5 56.4 195.7 150.3 234.2 719.6 - Pledge Loans................. 16.7 8.4 9.8 17.7 1.8 0.2 54.6 - Personal Loans............... 7.3 19.3 14.7 13.9 - - 55.2 - Credit-Cards Loans........... 818.8 - - - - - 818.8 - Other Loans.................. 367.7 0.6 0.1 0.1 0.2 22.2 390.9 - Accrued Interest and Quotation Differences Receivable (1).............. 523.1 - - - - - 523.1 - (Documented Interest)........ (2.5) - - - - - (2.5) - (Unallocated Collections).... (0.6) - - - - - (0.6) Allowance for Loan Losses (2)..... (1,177.3) - - - - - (1,177.3) ---------- --------- --------- --------- --------- ----------- ----------- TOTAL LOANS, NET.................. Ps.1,597.2 Ps. 340.6 Ps. 221.7 Ps. 777.5 Ps. 686.4 Ps. 7,311.4 Ps.10,934.8 ========== ========= ========= ========= ========= =========== =========== |
(1) Interests and CER adjustment were assigned to the first month.
(2) The allowances were assigned to the first month like past due loans and loans in judicial proceedings.
In the table above, consumer loans as classified by the Argentine Central Bank consist of personal loans, credit card loans, as well as certain portions of advances, mortgage loans and pledge loans.
Interest Rate Sensitivity of Outstanding Loans as of December 31, 2003
The following table presents the interest rate sensitivity of Banco Galicia's outstanding loans as of December 31, 2003.
(in millions of pesos) AS A % OF TOTAL LOANS ------------------------ --------------------- Variable Rate (1)(2) Pesos...................................................... Ps. 7,511.8 81.31% Dollars.................................................... 289.4 3.13 ------------ ----- TOTAL......................................................... Ps. 7,801.2 84.44% Fixed Rate (2)(3) Pesos...................................................... Ps. 831.1 9.00% Dollars.................................................... 606.0 6.56 ------------ ----- TOTAL......................................................... Ps. 1,437.1 15.56% Past Due Loans Pesos...................................................... Ps. 1,291.0 13.97% Dollars.................................................... 11.9 0.13 ------------ ----- TOTAL......................................................... Ps. 1,302.9 14.10 ============ ===== |
(1) Includes overdraft loans.
(2) Includes past due loans and excludes interest receivable, differences in quotations and the CER adjustment.
(3) Includes short-term and long-term loans whose rates are determined at the beginning of the loans' life.
CREDIT REVIEW PROCESS
Credit risk is the potential for financial loss resulting from the failure of a borrower to honor its financial contractual obligations. Credit risk at Grupo Galicia arises mainly from Banco Galicia's lending activities and from the fact that, in the normal course of its business, the Bank is a party to certain financial transactions with off-balance sheet risk, mainly commitments to extend credit and guarantees granted. See also Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Off-Balance Sheet Arrangements."
The Bank's credit approval and credit risk analysis is a centralized process based on the concept of "opposition of interests." This is achieved through the existing division between the credit and the origination functions thus enabling the Bank to achieve an ongoing and efficient control of asset quality, a proactive management of problem loans, aggressive write-offs of uncollectible loans, and an adequate loan loss provisioning. The process also includes credit-quality monitoring of the borrower, as well as monitoring of problem loans and related losses. The process facilitates early detection of situations that could entail some degree of portfolio impairment and provides appropriate protection of the Bank's assets.
The Bank's credit division is responsible for the Bank's credit risk management policies and procedures, which have to be approved by the board of directors, both for the retail and the corporate banking businesses. The Bank's credit division monitors credit risk management performance, provides ongoing assessment of the loan portfolio risk and establishes the measurement methods to be applied to the different risk products. The credit division is responsible for loan approval and classification of the loan portfolio. The corporate recovery department reporting to the wholesale banking division is responsible for commercial loan portfolio collection. Reporting to the retail banking division, the retail credit department carries out most individual loan portfolio approval and classification under the supervision of the credit division. It also is responsible for collection of loans to individuals.
Individual Portfolio
In the case of loans to individuals, the Bank assesses applications for different types of loans including credit-card loans, current account loans and personal loans with or without guarantees. Origination of mortgage loans was discontinued during 2002, due to the prevailing economic situation. New mortgage loans were launched in late 2003 but origination has been limited.
Applications for these types of loans are assessed through computerized credit-scoring systems that take into account different variables to determine the customer's profile and repayment capacity. Analysis of the information required from applicants and the credit approval or refusal decision is made in a centralized manner. The retail credit department approves loans of up to Ps. 250,000. Above such amount and up to Ps. 1.0 million, the approval of the credit division is required. Loans to individuals of more than Ps. 1 million are approved by the credit committee of the board of directors.
Applicants previous credit performance, both at Banco Galicia or in the financial system as a whole, is verified through internal information and information supplied by Organizacion Veraz S.A., a company that provides credit information services.
The retail credit department classifies the loan portfolio, in accordance with the Argentine Central Bank's applicable rules and the Bank's own internal policy. It also coordinates the relation with the Bank's internal auditor which supervises the portfolio classification, and with the independent auditor. As described under " -- Argentine Central Bank's Loan Classification and Loan Loss Provisions," classification of the retail loan portfolio is based on the borrower's payment performance, pursuant to the rules set forth by the Argentine Central Bank.
With respect to the recovery of past-due loans, the Department manages the consumer loan portfolio from the early stages until the portfolio returns to a normal status or the recovery procedures are abandoned for loans deemed uncollectible. When a consumer loan is more than three days past due, recovery procedures are undertaken through the Collection Center (a specialized area of the Bank's Customer Contact Center) or through letters or visits to the borrower's residence. A follow-up system that performs automated telephone calls is also used for loans in early stages of delinquency. For a better coverage of distant locations, the Department also coordinates actions with
the branch network staff. When these early procedures are exhausted, collection is turned to collection agencies hired by the Bank to handle recovery through litigation or out of court procedures, and the retail credit department supervises the process.
Banco Galicia does not classify, nor does it provide for recovery procedures of certain small balance loans, including credit card balances from membership fees and other administrative costs charged to customers on unsolicited credit cards, small residual balances from lending operations where the cost of recovery and legal costs are prohibitive. These small balance loans are charged-off directly to the income statement.
Commercial Portfolio
Prior to the approval of a loan, Banco Galicia's analysis involves the evaluation and assessment of the corporate borrower and its financial status. For credits to customers with revenues above certain amounts, Banco Galicia makes a standard analysis of each credit line and corporate borrower. For credits to customers with revenues below certain amounts, Banco Galicia uses automated systems of risk evaluation that provide financial and nonfinancial information on the corporate borrower.
Banco Galicia bases the risk assessment on the following factors:
Qualitative analysis.......... assessment of the quality of the corporate borrower by the line officer to which the account is assigned on the basis of personal knowledge. Economic and financial risk... quantitative results obtained from analysis of the corporate borrower's financial statements. Economic sector risk.......... measure of the general risk of the sector in which the corporate borrower operates (based on statistical information gathered from internal and external sources). |
The corporate credit department is in charge of the management of the commercial loan portfolio risk and reports to the credit division. As of December 31, 2003, this department reported to the wholesale banking division. The credit division monitors the credit risk of the commercial loan portfolio on a borrower-by-borrower basis and carries out the related procedures. It also classifies the commercial loan portfolio and defines loan-loss provisioning.
The internal audit division is in charge of overseeing the classification of the loan portfolio, in accordance with regulations established by the Argentine Central Bank.
The corporate and middle market banking departments are responsible for the relationship with corporate customers, for both the planning and management of the various lines of business, for credit origination. The corporate restructuring unit was created in 2002 within the corporate banking department in order to carry on the process of restructuring the loans granted to certain large corporate customers. It is expected that in 2004, upon completion of the restructuring of the commercial portfolio under this unit's management, that it will be incorporated into the corporate banking department.
All extensions of credit must be approved by an officer from the credit division. Commercial credit approval is structured depending on the credit limit assigned to each customer, as follows:
- Under Ps. 1.0 million: credit extensions proposed by the business officers must be signed by officers of the corporate credit department, in accordance with pre-established credit authority levels.
- More than Ps. 1.0 million and up to Ps. 3.5 million: credit extensions must be approved by the senior credit committee, composed of at least (i) the Chief Credit Officer (the manager of the credit division) or, alternatively, the manager of the corporate credit department; and (ii) one of the managers of the following departments
pertaining to the wholesale banking division: corporate banking, middle market banking or corporate recovery.
- Above Ps. 3.5 million: credit extensions must be approved by the credit committee of the Bank's board of directors, with the participation of at least one director, the chief credit officer or, alternatively, the manager of the corporate credit department and the manager in charge of the department proposing the extension of credit.
The primary responsibility of the corporate credit department is to approve loans to corporate customers with a credit limit not exceeding Ps. 3.5 million, ensuring the overall objective of maintaining high credit-quality standards and complying with the Bank's policies and procedures. Prior to presentations to the credit committees of corporate borrowers whose credit limit exceeds Ps. 3.5 million, the department prepares analyses and reports that assess the credit risk involved. This department classifies the performing and nonperforming commercial portfolios, in accordance with the regulations set by the Argentine Central Bank and with the Bank's own internal policies. It also coordinates relations with the Argentine Central Bank, the independent auditors, and the rating agencies in connection with credit risk information. Moreover, it reviews all those businesses whose total credit exceeds Ps. 1.0 million, in accordance with a review schedule determined by the level of credit risk.
The corporate recovery department, reporting to the wholesale banking division, is responsible for monitoring and controlling past-due commercial portfolios and for recovery of the entire commercial portfolio. It acts proactively and designs action plans on a case-by-case basis to recover any amounts that exceed the credit limits that are assigned to the different corporate customers. This unit also oversees recovery of problem loans in the corporate portfolio (different from those addressed by the corporate restructuring unit), managing them efficiently and working to regularize the status of those customers that are most attractive to the Bank. Furthermore, this unit manages problem loans for which recovery is being settled through litigation or out of court agreements. This unit also manages and oversees lawsuits carried out in various jurisdictions by outside law firms hired to handle these matters.
The Bank's information systems provide both financial and nonfinancial data about customers. They can also perform automated risk evaluations and financial-statements projections, and have the capacity to generate automatic warnings about situations that may indicate an increase in risk.
As a result of the Argentine economic situation and the measures taken by the government in 2002 (mentioned in other sections of this annual report), during 2003 and 2002, substantially all of the Bank's commercial loan portfolio underwent a restructuring process. This process has not yet been completed.
Breakdown of the Bank's Total Credit Portfolio by Credit Authority Levels
The following table shows the breakdown of the Bank's total credit portfolio by credit authority levels.
APPROVAL AUTHORITY NUMBER OF TOTAL CREDIT(1) % OF LEVEL IN MILLIONS OF PESOS ACCOUNTS IN MILLIONS OF PESOS TOTAL CREDIT -------------------------- --------- -------------------- ------------- Credit Committee of the Board of Directors Over Ps. 3.5 127 10,512.2 80.8% More than Ps. 1.0 and Up to Senior Credit Committee Ps. 3.5 192 335.2 2.6% Credit Officers Up to Ps. 1.0 1,354,439 2,153.4 16.6% ------------- --------- ---------- ----- TOTAL 1,354,758 13,000.8 100.0% ========= ========== ===== |
(1) In accordance with Argentine Central Bank's methodology for preparation of the Statement of Debtor's Status, total credit is defined as the sum of loans, certain accounts representing credit transactions under the balance sheet heading "Other Receivables from Financial Brokerage," assets under financial leases, and the off-balance sheet accounts "Guarantees Granted" and "Unused Balances of Loans Granted."
Policy for Requiring Collateral
The credit review process of Banco Galicia is unaffected by the collateral underlying the loan. The Bank's credit review process and the Argentine Central Bank's loan classification system is based on a borrower's capacity to repay or on the past due status of the loan rather than on the structure of the loan. However, once a loan is
classified, the level of the reserve that should be made against the loan is determined by whether the loan is secured or unsecured.
Although the procedures for assessing a borrower's credit worthiness are unaffected by the collateral of the loan, Banco Galicia performs additional procedures to review the existence and valuation of the collateral on all major loans on an annual basis. For nonperforming commercial loans, this review is performed every six months. Banco Galicia reviews the existence and valuation of collateral on consumer loans on a sample basis.
ARGENTINE CENTRAL BANK'S LOAN CLASSIFICATION AND LOAN LOSS PROVISIONS
General
The Argentine Central Bank's loan classification system is a bifurcated system, that applies certain criteria to classify loans in a bank's consumer portfolio, and another set of criteria to classify loans in its commercial portfolio. The classification system is independent of the currency in which the loan was denominated, since the dual currency system was part of Argentine federal law. Subsequent to December 31, 2001, the economic policy measures taken by the government provided for the "pesification" of most loans denominated in foreign currency outstanding as of December 31, 2001. For a description of the pesification process and some of the measures adopted by the Argentine government to mandatorily restructure private sector loans, see " -- Main Regulatory Changes in 2002 and 2003 -- Loans to the Private Sector and Asymmetric Indexation."
The loan classification criteria applied to loans in the consumer portfolio are based mainly on delinquency aging. For the purposes of the Argentine Central Bank, consumer loans are defined as residential mortgage loans, personal loans, pledge loans, credit-card loans and other types of installment credits to individuals. All other loans are considered as commercial loans. In addition, as permitted by the Argentine Central Bank, the Bank classifies as consumer loans all commercial loans that are for an amount less than Ps. 200,000 for purposes of applying the Argentine Central Bank's provisioning requirements. As a result, the Bank classifies such loans based on the delinquency aging system rather than on the borrower's ability to repay.
The principal criterion of classification of loans in the commercial portfolio is each borrower's ability to pay, as measured principally by such borrower's future cash flow. In this loan classification system, all customers in an economic group (all corporate and financial entities, both domestic and foreign, which are controlled, directly or indirectly, by a customer) are considered as one borrower. For example, if one or more loans in a group of loans to an economic group becomes classified, all loans to that group are reclassified in the most severe classification. Banks may opt to apply the consumer loan classification criteria to commercial loans of up to Ps. 200,000. If a customer has both commercial and consumer loans, consumer loans will be added to commercial loans to determine eligibility for classification in the consumer portfolio.
Interbank transactions of less than 30 days in maturity, as well as loans to provincial governments or to financial institutions majority-owned by the Argentine national, provincial or city governments with governmental guarantees, are excluded from this procedure.
In applying the Argentine Central Bank's classifications to commercial loans, a bank must assess the following factors:
- management and operating history of the borrower;
- present and projected financial situation of the borrower with a review of the borrower's financial statements;
- borrower's payment history and ability to service debt;
- capability of the borrower's internal information and control systems to provide accurate and timely financial information; and
- general risk of the sector in which the borrower operates and its relative position within that sector.
Argentine Central Bank rules establish that periodic evaluations of the commercial portfolio must be performed by an evaluation team independent from the officers that originate the loans. Alternatively, if such officers carry out these evaluations, they must be subject to independent supervision. The retail credit department of the retail banking division and the corporate credit department of the wholesale banking division are responsible for these evaluations, being independent from the business units that originate loans.
The frequency of the evaluation of each borrower depends on the Bank's exposure to such borrower. The Argentine Central Bank requires that the larger the exposure, the more frequent the review. A review is conducted every calendar quarter when credit exposure to that borrower is equal to or in excess of 5.0% of the Bank's Regulatory Capital on the last day of the month prior to the review. Alternatively, a review is conducted every six months when exposure amounts to the lesser of Ps. 1,000,000 or 1.0% of the Bank's Regulatory Capital on the last day of the month prior to review. In any case, at least 50.0% of the commercial portfolio must be reviewed by the end of each six months, and all other borrowers in the commercial portfolio must be reviewed during the fiscal year, so that the entire commercial portfolio is reviewed every fiscal year.
Reviews must be reevaluated and documented in a borrower's file upon a negative change in objective criteria such as an increase in days past due, filing for bankruptcy or protection from creditors, or a judicial proceeding initiated against a borrower. In addition, a reevaluation is triggered when, based on information made available by the Argentine Central Bank, any other financial institution holding at least 10.0% of a borrower's total outstanding credit downgrades its classification of that borrower, or when an independent rating agency downgrades the rating it grants to a borrower's debt securities.
The Argentine Central Bank allows only one level of discrepancy between the classification that the Bank assigns and the lowest classification assigned by at least two other banks whose combined credit to the borrower represents 40.0% or more of the total credit of the borrower within the financial system, considering all banks. Information on each bank's classification of its borrowers is released by the Argentine Central Bank to all banks on a monthly basis. If a bank's classification differs by more than one level from the lowest classification, it must immediately downgrade its classification of the borrower to the same classification, or within one classification level.
Argentine Central Bank Communique "A" 3418 issued on January 3, 2002, allowed for increased flexibility of the rules for classification of borrowers for December 2001 and January 2002, by temporarily extending the late-payment period admitted for borrowers in categories 1 and 2 by 31 additional days, both for the commercial and consumer portfolios. On February 7, 2002, through its Communique "A" 3463, the Argentine Central Bank further extended the late-payment periods established by Communique "A" 3418 by 31 additional days. Subsequently, no additional extension was provided.
Through Communique "A" 3918, issued on April 4, 2003, the Argentine Central Bank also established that beginning on March 31, 2003, customers with debt in the whole financial system of up to Ps. 5.0 million were to be classified in the same manner as consumer loans, that is, they would be automatically classified according to the number of days the debt is past due. In addition, the obligatory reclassification of debtors with different ratings in the financial system was suspended until December 31, 2003. In accordance with such Communique, between December 1, 2001 and March 31, 2003, the number of days such loans had been past due was computed taking one day for every three days past due in the period from December 1, 2001 to March 31, 2003. This treatment was also provided to the portfolio of commercial loans of up to Ps. 200.000, which under the previous rules were already automatically classified according to their delinquency aging.
Loan Classification
The following tables set forth the Argentine Central Bank's six loan classifications corresponding to levels of risk. Banco Galicia's total exposure to a private sector customer must be classified in the riskiest classification that corresponds to any part of such exposure.
Loan Classification Description ------------------- ----------- (a) COMMERCIAL PORTFOLIO 1. Normal..................................... Borrower can easily service all financial obligations; shows strong cash flow, liquid current financial situation, adequate financial structure, punctual payment record, capable management, timely and precise available information and satisfactory internal controls. Borrower is determined to be in the top 50.0% of an industry that is performing well and has a good outlook. 2. With Special Follow-Up..................... Cash flow analysis indicates debt can be serviced, with the possibility that if not closely observed, future payment capacity could be impaired. This category is divided into two subcategories: (2.a). Under observation; (2.b). Under negotiation or under agreements to refinance. 3. With Problems.............................. Cash flow analysis evidences problems in normal servicing of existing debt, such that if the problems are not solved, they may result in some loss. 4. High Risk of Insolvency.................... Cash flow analysis demonstrates that full repayment of the borrower's obligations is highly improbable. 5. Uncollectible.............................. Debts in this category are considered total losses. Although these assets could have a possibility of recovery under certain future circumstances, lack of collectibility is evident as of the date of analysis. Includes loans to insolvent or bankrupt borrowers. 6. Uncollectible due to Technical Reasons..... Loans to borrowers indicated by the Argentine Central Bank to be in arrears to any liquidated or bankrupt financial entity. Also includes loans to foreign banks and other financial institutions which are not: (i) classified as "normal," (ii) subject to the supervision of the Argentine Central Bank or other similar authority of the country of origin, and (iii) classified as "investment grade"by any of the rating agencies admitted to the Argentine Central Bank pursuant to Communique "A" 2729. |
(b) CONSUMER PORTFOLIO 1. Normal Performance......................... Current Loans and Loans that are up to 31 days past due on principal and/or interest, including loans that are current. 2. Inadequate Performance..................... Debt payment is occasionally delinquent, with arrears from 32 to 90 days. 3. Deficient Performance...................... Debt is in arrears at least 91 days and up to 180 days. 4. Difficult Collection....................... Judicial proceedings demanding payment have been initiated against the borrower, or the borrower is delinquent with arrears greater than 180 days and up to one year past due. 5. Uncollectible.............................. Loans to insolvent or bankrupt borrowers, or borrowers subject to judicial proceedings, with little or no possibility of collection, or in arrears in excess of one year. 6. Uncollectible due to Technical Reasons..... Loans to borrowers who fall within the conditions described above under Commercial Portfolio -- Uncollectible due to Technical Reasons. |
Loan Loss Provision Requirements
Allocated Provisions
The minimum loan loss provisions required by the Argentine Central Bank relate to the above loan classification and are described in the following table, where the percentages are applicable to the borrower's total credit outstanding, including contingencies.
WITH SELF- WITH WITHOUT LIQUIDATING OTHER PREFERRED PREFERRED PREFERRED GUARANTEES LOAN CLASSIFICATION GUARANTEES GUARANTEES OR SECURITY ------------------- ---------- ---------- ----------- "With Special Follow Up" and "Inadequate Performance" "Inadequate Performance - Under Observation"................... 1.0% 3.0% 5.0% "Inadequate Performance - Under Negotiation or Agreement to 1.0 6.0 12.0 Refinance"..................................................... "With Problems" and "Deficient Performance".................... 1.0 12.0 25.0 "High Risk of Insolvency" and "Difficult Collection"........... 1.0 25.0 50.0 "Uncollectible"................................................ 1.0 50.0 100.0 "Uncollectible Due to Technical Reasons"....................... 100.0% 100.0% 100.0% |
Banks are required to cease the accrual of interest or to establish provisions of 100.0% of the interest accrued on loans to borrowers classified as "with problems," "deficient performance" or under higher risk categories.
Pursuant to Argentine Central Bank regulation, these minimum provisions are not required for interbank financial transactions of less than thirty days, or loans to provincial governments or to financial institutions majority-owned by the Argentine national, provincial or city governments with governmental guarantees.
General Provisions
In addition to the specific loan loss allowances described above, the Argentine Central Bank established in November 1992 a mandatory general allowance requirement of 1.0% for all loans in its "normal" and "normal performance" categories which was fully implemented on January 1, 1996. This general allowance is not required for interbank financial transactions of less than thirty days, or loans to provincial governments or to financial institutions majority-owned by the Argentine national, provincial or city governments with governmental guarantees. This general allowance is determined based on the Bank's judgment of the entire loan portfolio risk at each reporting period.
As of December 31, 2003, the Bank maintained a general loan loss allowance of Ps. 313.6 million, which exceeded by Ps. 293.0 million the 1.0% general allowance minimum requirement for the "normal" and "normal performance" loan portfolio established by the Argentine Central Bank's rules. The excess over the minimum requirement, which represents only 38% of that reported as of December 31, 2002, was maintained in connection with commercial loans under a restructuring process, which restructuring had not been completed.
As of December 31, 2002, Banco Galicia maintained a general loan loss allowance of Ps. 822.3 million, which exceeded by Ps. 787.0 million the 1.0% general allowance minimum requirement for the "normal" and "normal performance" loan portfolio established by the Argentine Central Bank's rules. As explained above, this general allowance is determined based on the Bank's judgment of the entire loan portfolio risk at each reporting period. Therefore, the excess over the minimum requirement reflected the judgment that the consequences of the Argentine economic and political crisis of late 2001 and 2002 on the loan portfolio had not unfolded completely as of the balance sheet date and that the risk that loans that were impaired had not been identified as impaired as of the balance sheet date was still high. In addition, as the restructuring process in the Bank's commercial portfolio began only in the second half of the 2002, uncertainty about the outcome of the process was still high.
As of December 31, 2001, Banco Galicia maintained a general loan loss allowance of Ps. 440.9 million, which exceeded by Ps. 331.6 million the 1.0% general allowance minimum requirement for the "normal" and "normal performance" loan portfolio established by the Argentine Central Bank's rules. The excess over the minimum requirement reflected the fact that the Argentine economic and political crisis of late 2001 had just begun to unfold as of December 31, 2001, the balance sheet date. Therefore, given that the crisis had reached unprecedented levels and in the unprecedented context of uncertainty prevailing at the time, the risk that loans that were impaired had not been identified as impaired as of the balance sheet date was much higher than in previous years.
CLASSIFICATION OF THE LOAN PORTFOLIO BASED ON ARGENTINE CENTRAL BANK REGULATIONS
The following tables set forth the amounts of Banco Galicia's loans past due and the amounts not yet due of the loan portfolio, applying the Argentine Central Bank's loan classification criteria in effect at the dates indicated below.
Nonaccrual loans correspond to those loans classified under the last four categories of the classification.
For December 31, 2001, the Bank applied the 30-day flexibility for the classification of borrowers in categories 1 and 2 which was allowed by Argentine Central Bank Communique "A" 3418, only to the classification of the Bank's portfolio that is automatically classified according to the delinquency aging system (consumer loans and all commercial loans that are for an amount of less than Ps. 200,000). Commercial loans continued to be classified according to the borrower's ability to repay. As a consequence, the classification of consumer loans in the categories 1, 2, and 3 of the classification of the loan portfolio as of December 31, 2001 followed a different criterion than in previous periods. On December 31, 2002, the prior criterion was again applicable.
Loans classified as category "2.b" pursuant to the Argentine Central Bank's classification, which correspond to loans under a restructuring process but that do not constitute nonperforming portfolios, amounted to Ps. 212.6 million as of December 31, 2003, 54.3% lower than the Ps. 464.8 million recorded at the close of fiscal year 2002. In the case of the Bank, this portfolio consisted of commercial loans only.
AS OF DECEMBER 31, 2003 --------------------------------------------------------------------- AMOUNTS NOT YET DUE(1) AMOUNTS PAST DUE TOTAL LOANS --------------------- ------------------- ------------------------- (in millions of pesos, except percentages) LOAN PORTFOLIO CLASSIFICATION Normal and Normal Performance....................... Ps.10,004.9 90.13% - - Ps. 10,004.9 82.60% With Special Follow-up and Inadequate Performance... 807.9 7.28 - - 807.9 6.67 With Problems and Deficient Performance............. 237.9 2.14 Ps. 426.5 42.19% 664.4 5.49 High Risk of Insolvency and Difficult Collection.... 50.4 0.45 245.4 24.27 295.8 2.44 Uncollectible....................................... - - 324.9 32.14 324.9 2.68 Uncollectible Due to Technical Reasons.............. - - 14.2 1.40 14.2 0.12 ----------- ------ ---------- ------- ------------- ------ TOTAL............................................... Ps.11,101.1 100.00% Ps.1,011.0 100.00% Ps. 12,112.1 100.00% ----------- ------ ---------- ------- ------------- ------ |
AS OF DECEMBER 31, 2002 -------------------------------------------------------------------- AMOUNTS NOT YET DUE(1) AMOUNTS PAST DUE TOTAL LOANS --------------------- ------------------- ------------------------ (In millions of February 28, 2003, constant pesos, except percentages) LOAN PORTFOLIO CLASSIFICATION Normal and Normal Performance....................... Ps. 9,758.0 88.02% - - Ps. 9,758.0 79.28% With Special Follow-up and Inadequate Performance... 940.5 8.48 - - 940.5 7.64 With Problems and Deficient Performance............. 321.5 2.90 Ps. 556.3 45.50% 877.8 7.13 High Risk of Insolvency and Difficult Collection.... 66.1 0.60 453.4 37.09 519.5 4.22 Uncollectible....................................... - - 198.2 16.21 198.2 1.61 Uncollectible Due to Technical Reasons.............. - - 14.7 1.20 14.7 0.12 ----------- ------ ---------- ------ ------------- ------ TOTAL............................................... Ps.11,086.1 100.00% Ps.1,222.6 100.00% Ps. 12,308.7 100.00% ----------- ------ ---------- ------ ------------- ------ |
AS OF DECEMBER 31, 2001 -------------------------------------------------------------------- AMOUNTS NOT YET DUE(1) AMOUNTS PAST DUE TOTAL LOANS --------------------- ------------------- ------------------------ (in millions of February 28, 2003, constant pesos, except percentages) LOAN PORTFOLIO CLASSIFICATION Normal and Normal Performance....................... Ps.19,287.1 96.32% - - Ps. 19,287.1 91.54% With Special Follow-up and Inadequate Performance... 362.0 1.81 - - 362.0 1.72 With Problems and Deficient Performance............. 198.9 0.99 Ps. 157.4 15.05% 356.3 1.69 High Risk of Insolvency and Difficult Collection.... 175.8 0.88 624.7 59.73 800.5 3.80 Uncollectible....................................... - - 217.5 20.79 217.5 1.03 Uncollectible Due to Technical Reasons.............. - - 46.3 4.43 46.3 0.22 ----------- ------ ---------- ------ ------------- ------ TOTAL............................................... Ps.20,023.8 100.00% Ps.1,045.9 100.00% Ps. 21,069.7 100.00% ----------- ------ ---------- ------ ------------- ------ |
AS OF DECEMBER 31, 2000 -------------------------------------------------------------------- AMOUNTS NOT YET DUE(1) AMOUNTS PAST DUE TOTAL LOANS --------------------- ------------------- ------------------------ (in millions of February 28, 2003,constant pesos, except percentages) LOAN PORTFOLIO CLASSIFICATION Normal and Normal Performance....................... Ps.19,776.5 97.74% - - Ps. 19,776.5 94.36% With Special Follow-up and Inadequate Performance... 335.8 1.66 - - 335.8 1.60 With Problems and Deficient Performance............. 64.8 0.32 Ps. 104.5 14.41% 169.3 0.81 High Risk of Insolvency and Difficult Collection.... 56.6 0.28 400.4 55.19 457.0 2.18 Uncollectible....................................... - - 216.8 29.88 216.8 1.03 Uncollectible Due to Technical Reasons.............. - - 3.7 0.52 3.7 0.02 ----------- ------ ---------- ------ ------------- ------ TOTAL............................................... Ps.20,233.7 100.00% Ps. 725.4 100.00% Ps. 20,959.1 100.00% ----------- ------ ---------- ------ ------------- ------ |
AS OF JUNE 30, 2000 -------------------------------------------------------------------- AMOUNTS NOT YET DUE(1) AMOUNTS PAST DUE TOTAL LOANS --------------------- ------------------- ------------------------ (in millions of February 28, 2003, constant pesos, except percentages) LOAN PORTFOLIO CLASSIFICATION Normal and Normal Performance....................... Ps.19,938.1 97.69% - - Ps. 19,938.1 94.37% With Special Follow-up and Inadequate Performance... 354.8 1.74 - - 354.8 1.68 With Problems and Deficient Performance............. 70.1 0.34 Ps. 89.0 12.38% 159.1 0.75 High Risk of Insolvency and Difficult Collection.... 46.1 0.23 399.3 55.54 445.4 2.11 Uncollectible....................................... - - 229.6 31.93 229.6 1.09 Uncollectible Due to Technical Reasons.............. - - 1.1 0.15 1.1 0.00 ----------- ------ ---------- ------ ------------- ------ TOTAL............................................... Ps.20,409.1 100.00% Ps. 719.0 100.00% Ps. 21,128.1 100.00% ----------- ------ ---------- ------ ------------- ------ |
AS OF JUNE 30, 1999 -------------------------------------------------------------------- AMOUNTS NOT YET DUE(1) AMOUNTS PAST DUE TOTAL LOANS --------------------- ------------------- ------------------------ (in millions of February 28, 2003, constant pesos, except percentages) LOAN PORTFOLIO CLASSIFICATION Normal and Normal Performance....................... Ps.17,969.2 97.14% - - Ps. 17,969.2 93.58% With Special Follow-up and Inadequate Performance... 366.9 1.98 - - 366.9 1.92 With Problems and Deficient Performance............. 104.5 0.57 Ps. 107.4 15.23% 211.9 1.10 High Risk of Insolvency and Difficult Collection.... 57.5 0.31 388.9 55.21 446.4 2.32 Uncollectible....................................... - - 206.0 29.24 206.0 1.07 Uncollectible Due to Technical Reasons.............. - - 2.2 0.32 2.2 0.01 ----------- ------ ---------- ------- ------------- ------ TOTAL............................................... Ps.18,498.1 100.00% Ps. 704.5 100.00% Ps. 19,202.6 100.00% ----------- ------ ---------- ------- ------------- ------ |
(1) Amounts not yet due represent the portion of a loan that has not yet become due, such as the future installments of a consumer loan.
ANALYSIS OF AMOUNTS PAST DUE AND NONACCRUAL LOANS
The table on the following page analyzes amounts past due 90 days or more in Banco Galicia's loan portfolio, by type of loan and by type of guarantee at the dates indicated, as well as the Bank's nonaccrual loan portfolio, by type of guarantee, the Bank's allowance for loan losses and its main asset quality ratios at the dates indicated.
AS OF DECEMBER 31, AS OF JUNE 30, ------------------------------------------------------ ------------------------- 2003 2002 2001 2000 2000 1999 --------------------------------------------------------------------------------- (in millions of pesos, except ratios) (in millions of February 28, 2003, constant pesos, except ratios) TOTAL LOANS (1).............................. Ps.12,112.1 Ps .12,308.7 Ps.21,069.7 Ps. 20,959.1 Ps. 21,128.1 Ps.19,202.6 NONACCRUAL LOANS (2) With Preferred Guarantees.................. 496.5 610.8 578.4 366.9 383.8 355.6 With Other Guarantees...................... 275.8 282.9 198.5 35.5 65.9 82.1 Without Guarantees......................... 527.0 716.5 643.7 444.4 385.5 428.8 ----------- ------------ ----------- ------------ ------------ ----------- TOTAL NONACCRUAL LOANS (2)................... Ps. 1,299.3 Ps. 1,610.2 Ps. 1,420.6 Ps. 846.8 Ps. 835.2 Ps. 866.5 PAST DUE LOAN PORTFOLIO Nonfinancial Public Sector.................. - - - - - - Local Financial Sector...................... - - - - - - Nonfinancial Private Sector and Residents Abroad Advances................................... Ps. 93.9 Ps. 64.9 Ps. 79.8 Ps. 59.9 Ps. 73.6 Ps. 54.9 Notes...................................... 528.2 741.0 307.6 112.4 137.7 120.3 Mortgage Loans............................. 211.7 217.2 313.6 202.8 189.7 194.3 Pledge Loans............................... 28.3 35.7 74.0 78.5 90.3 67.4 Personal Loans............................. 110.2 58.6 94.5 82.6 76.2 53.3 Credit-Card Loans.......................... 30.6 100.4 174.5 171.4 150.3 208.0 Placements with Correspondent Banks........ - - - - - - Other Loans................................ 8.1 4.8 1.9 17.8 1.2 6.3 ----------- ------------ ----------- ------------ ------------ ----------- TOTAL PAST DUE LOANS......................... Ps. 1,011.0 Ps. 1,222.6 Ps. 1,045.9 Ps. 725.4 Ps. 719.0 Ps. 704.5 Past Due Loans With Preferred Guarantees.................. Ps. 415.7 Ps. 449.3 Ps. 388.3 Ps. 288.2 Ps. 308.7 Ps. 256.9 With Other Guarantees...................... 235.6 172.5 76.1 32.8 63.3 79.8 Without Guarantees......................... 359.7 600.8 581.5 404.4 347.0 367.8 ----------- ------------ ----------- ------------ ------------ ----------- TOTAL PAST DUE LOANS......................... Ps. 1,011.0 Ps. 1,222.6 Ps. 1,045.9 Ps. 725.4 Ps. 719.0 Ps. 704.5 ALLOWANCE FOR LOAN LOSSES.................... Ps. 1,177.3 Ps. 1,681.8 Ps. 1,050.3 Ps. 596.0 Ps. 576.9 Ps. 591.2 RATIOS (%) As a % of Total Loans: - Total Past Due Loans ..................... 8.35% 9.93% 4.96% 3.46% 3.40% 3.67% - Past Due Loans with Preferred Guarantees.. 3.43 3.65 1.84 1.38 1.46 1.34 - Past Due Loans with Other Guarantees...... 1.95 1.40 0.36 0.16 0.30 0.42 - Past Due Unsecured Amounts................ 2.97 4.88 2.76 1.92 1.64 1.91 - Nonaccrual Loans (2)...................... 10.73 13.08 6.74 4.04 3.95 4.51 - Nonaccrual Loans (2) (Excluding Interbank Loans)........................... 10.88 13.25 6.87 4.33 4.23 4.97 Allowance for Loan Losses as a % of : - Total Loans............................... 9.72 13.66 4.98 2.84 2.73 3.08 - Total Loans Excluding Interbank Loans..... 9.86 13.84 5.08 3.04 2.92 3.39 - Total Nonaccrual Loans (2)................ 90.61 104.45 73.93 70.38 69.07 68.23 Nonaccrual Loans with Guarantees as a Percentage of Nonaccrual Loans (2)........ 59.44 55.50 54.69 47.52 53.84 50.52 Nonaccrual Loans as a Percentage of Total Past Due Loans............................ 128.52 131.70 135.83 116.74 116.16 123.00 =========== ============ =========== ============ ============ =========== |
(1) Before the allowance for loan losses.
(2) Nonaccrual loans are defined as those loans in the categories of: (a) consumer portfolio: defective fulfillment, difficulty in recovery, uncollectible and uncollectible due to technical reasons; (b) commercial portfolio: with problems, high risk of insolvency, uncollectible and uncollectible due to technical reasons.
As a result of the Argentine economic situation in 2002 and of the measures taken by the government that modified the terms and conditions of the Bank's private-sector loan portfolio, substantially all of the Bank's loan portfolio underwent a restructuring process. This process had not been completed as of December 31, 2003, and continues as of the date of this annual report. See " -- Main Regulatory Changes in 2002 and 2003 -- Loans to the Private Sector and Asymmetric Indexation."
The amount of loan restructurings included in the nonaccrual loan balance as of December 31, 2001 was Ps. 47.6 million. The amounts were: Ps. 49.5 million as of December 31, 2000; Ps. 50.6 million as of June 30, 2000; and Ps. 65.5 million as of June 30, 1999, respectively.
Under Argentine Central Bank rules, banks are required to cease the accrual of interest or to establish provisions of 100.0% of the interest accrued on all loans pertaining to the nonaccrual loan portfolio, that is, all loans to borrowers in the categories of:
- in the consumer portfolio: defective fulfillment, difficulty in recovery, uncollectible and uncollectible due to technical reasons.
- in the commercial portfolio: with problems, high risk of insolvency, uncollectible and uncollectible due to technical reasons.
During 2003, interest income that would have been recorded on those nonaccrual loans on which the accrual of interest was discontinued amounted to Ps. 39.9 million. Recoveries of interest on loans classified as nonaccrual on which the accrual of interest had been discontinued amounted to approximately Ps. 2.0 million (recorded under "Miscellaneous Income") during the same period.
During the years ended December 31, 2002, 2001 and the six-month period ended December 31, 2000, interest income that would have been recorded on those nonaccrual loans on which the accrual of interest was discontinued amounted to Ps. 40.4 million, Ps. 119.6 million and Ps. 24.4 million, respectively. Recoveries of interest on loans classified as nonaccrual on which the accrual of interest had been discontinued amounted to approximately Ps. 2.0 million, Ps. 6.0 million and Ps. 1.3 million (recorded under "Miscellaneous Income") during the same periods, respectively.
The nonaccrual to total loans ratio deteriorated in 2001 as a result of the deterioration of Argentina's overall economic situation during he year, that worsened throughout 2001 and deepened into an unprecedented political and economic crisis which disrupted Argentina's financial system and real economy. It should be noted that this ratio had already increased in the last six months of 2000 as a result of the long recession that Argentina was undergoing at the time and that had begun in the second half of 1998. In 2002 the severe economic crisis had as a direct consequence an additional significant deterioration of the Bank's loan portfolio quality as compared to that of prior fiscal years. In 2003, the improvement in the overall Argentine economy and the advances made by the Bank in the restructuring of its commercial portfolio generated an improvement in the quality of the its loan portfolio. Despite this improvement, the high level nonaccrual loans in 2003 continues to reflect the deterioration of Argentina's economic situation and the measures adopted by the government aimed at restructuring private-sector debts, mainly in 2002. As of December 31, 2003, the nonaccrual portfolio as a percentage of total loans was 10.73%, compared to 13.08% at the close of fiscal year 2002. Considering the private-sector loan portfolio only, at the close of fiscal year 2003, the nonaccrual loan portfolio represented 31.19% of the total portfolio of loans to the private sector, compared to 35.47% a year before.
In 2002, the Bank made a substantial effort to increase its allowances for loan losses and the coverage of the nonaccrual loan portfolio with allowances for loan losses. Due to the significant allowances set up in the previous fiscal year, coverage of nonaccrual loan portfolio with allowances reached 90.61% at the end of fiscal year 2003 and allowances as a percentage of total loans amounted to 9.72%. At that same date, the nonaccrual portfolio with guarantees amounted to 59.44%. Coverage with allowances for loan losses of the nonaccrual portfolio plus loans classified as category "2.b" pursuant to the Argentine Central Bank's classification (amounting to Ps. 212.6 million as of December 31, 2003) was 77.87% at the end of fiscal year 2003.
In the year ended June 30, 2000, the improvement in the nonaccrual to total loans ratio was due to an increase in charge-offs, rather than to an improvement in the credit quality of the Bank's portfolio.
ANALYSIS OF THE ALLOWANCE FOR LOAN LOSSES
The following table presents an analysis of the allowance for loan losses at the dates indicated. Certain loans are charged off directly to the income statement and, therefore, are not reflected in the allowance.
SIX MONTHS FISCAL YEAR ENDED ENDED FISCAL YEAR ENDED -------------------------------------------------------- ------------------------ DECEMBER 31, JUNE 30, -------------------------------------------------------- ------------------------ 2003 2002 2001 2000 2000 1999 --------------- ------------ ---------- ------------ ------------ ---------- (in millions of pesos, except ratios) (in millions of February 28, 2003, constant pesos, except ratios) TOTAL LOANS, AVERAGE (1)....................... Ps. 11,556.7 Ps. 15,262.4 Ps. 20,002.3 Ps. 19,676.5 Ps. 18,252.7 Ps.16,565.9 ALLOWANCE FOR LOAN LOSSES AT BEGINNING OF PERIOD..................................... 1,681.8 1,050.3 596.0 576.9 591.2 545.1 Changes in the Allowance for Loan Losses during the Period Provisions Charged to Income................... 217.1 1,599.5 922.0 253.8 530.6 450.6 Prior Allowances Reversed...................... (402.1) - (2.0) (2.9) (3.5) (0.2) Charge-Offs (A)................................ (267.3) (305.7) (465.7) (231.8) (541.4) (404.3) Inflation Effect............................... (52.2) (662.3) - - - - ------------ ------------ ------------ ------------ ------------ ----------- ALLOWANCE FOR LOAN LOSSES AT END OF PERIOD..... Ps. 1,177.3 Ps. 1,681.8 Ps. 1,050.3 Ps. 596.0 Ps. 576.9 Ps. 591.2 Charge to the Income Statement during the Period Provisions Charged to Income........... 217.1 1,599.5 922.0 253.8 530.6 450.6 Direct Charge-Offs, Net of Recoveries (B)..... (38.6) (17.2) (25.8) (15.6) (29.6) 0.7 Recoveries of Provisions...................... (402.1) - (2.0) (2.9) (3.5) (0.2) ------------ ------------ ------------ ------------ ------------ ----------- NET CHARGE (BENEFIT) TO THE INCOME STATEMENT Ps. (223.6) Ps. 1,582.3 Ps. 894.2 Ps. 235.3 Ps. 497.5 Ps. 451.1 RATIOS (%) Charge-Offs (A+B) to Average Loans (2)........ 1.98% 1.89% 2.20% 2.20% 2.80% 2.44% Net Charge to the Income Statement to Average Loans (3)..................................... (1.93) 10.37 4.47 2.39 2.73 2.72 |
(1) Before the allowance for loan losses.
(2) Charge-offs plus direct charge-offs minus bad debts recovered.
(3) Income statement charges consist of net provisions plus net direct charge-offs (direct charge-offs minus bad debts recovered).
As of December 31, 2003, the loan loss allowance was Ps. 1,177.3 million. This amount represented a coverage of the nonaccrual loan portfolio of 90.61%, which was lower than the 104.45% level as of December 31, 2002, but higher than the levels reached in prior fiscal years.
The lower loan loss allowance reported at the close of fiscal year 2003, as compared to the prior fiscal year, reflects the reduced overall risk faced by the Bank's loan portfolio after completion of several debt restructurings. See " -- Argentine Central Bank's Loan Classification and Loan Loss Provisions -- Loan Loss Provision Requirements -- General Provisions" above.
The increase in the allowance for loan losses as of December 31, 2002, when compared to December 31, 2001 and the increases in the year ended December 31, 2001, the six-month period ended December 31, 2000 and in the year ended June 30, 2000 when compared to the previous fiscal year are part of a continuing trend that reflects the continuous worsening of the economic conditions in Argentina between late 1998 and 2002. This is reflected in a general deterioration of credit quality, higher levels of nonperforming loans and higher charge-offs across the entire loan portfolio.
The increase in the years ended December 31, 2002 and 2001 can also be attributed to the increase in the unallocated reserve as of each year end. For an explanation of the increase in the Bank's general unallocated allowance, see " -- Argentine Central Bank's Loan Classification and Loan Loss Provisions -- Loan Loss Provision Requirements -- General Provisions" above.
In 2003, the net effect on the income statement was a benefit of Ps. 223.6 million, representing 1.93% of the average loan balance for the fiscal year. This gain was the consequence of the improvement in the quality of the loan portfolio which resulted in the recovery of loan loss provisions. The net charge to the income statement as a percentage of average loans was 10.37% in fiscal year 2002, 4.47% during fiscal year 2001 and 2.39% during the six months ended December 31, 2000. This reflects the fact that the Bank assigned an increased portion of its income, both to nonaccrual portfolio charge offs and to provide for a higher coverage of such portfolio with allowances, given that the quality of such portfolio deteriorated significantly during 2001, especially in the last quarter of the year, and in 2002.
ALLOCATION OF THE ALLOWANCE FOR LOAN LOSSES
The following table presents the allocation of Banco Galicia's allowance for loan losses among the various loan categories and shows such allowances as a percentage of Banco Galicia's total loan portfolio before deducting the allowance for loan losses, in each case for the periods indicated. The table also shows each loan category as a percentage of Banco Galicia's total loan portfolio before deducting the allowance for loan losses at the dates indicated.
AS OF DECEMBER 31, --------------------------------------------------------------------------------------------- 2003 2002 2001 ------------------------------ ---------------------------- ------------------------------ % OF LOAN % OF LOAN % OF LOAN AMOUNT LOANS CATEGORY % AMOUNT LOANS CATEGORY % AMOUNT LOANS CATEGORY % ------------------------------ ------------------------------ ------------------------------ (in millions of pesos, (in millions of February 28, 2003, constant pesos, except percentages) except percentages) Nonfinancial Public Sector...... - - 64.00% - - 62.03% - - 41.15% Local Financial Sector.......... - - 1.61 - - 1.09 - - 0.91 Nonfinancial Private Sector and Residents Abroad Advances...................... Ps. 78.8 0.65% 1.81 Ps. 40.1 0.33% 1.84 Ps. 46.1 0.22% 3.85 Notes......................... 441.9 3.65 11.46 569.0 4.62 12.55 219.2 1.04 18.46 Mortgage Loans................ 142.6 1.18 5.94 122.1 0.99 7.02 154.5 0.73 15.65 Pledge Loans.................. 22.7 0.19 0.45 24.3 0.20 1.56 33.5 0.16 4.00 Personal Loans................ 157.6 1.30 0.46 48.4 0.39 0.97 64.8 0.31 2.77 Credit-Card Loans............. 14.5 0.12 6.76 55.6 0.45 4.75 83.7 0.40 8.90 Placements in Correspondent Banks........................ - - 1.42 - - 1.29 - - 1.79 Other ........................ 5.6 0.05 6.09 0.0 0.00 6.90 3.7 0.02 2.52 Unallocated (1)................. 313.6 2.58 - 822.3 6.68 - 444.8 2.10 - ----------- ------ --------- ---------- ------- ------ ---------- ------- --------- TOTAL........................... Ps. 1,177.3 9.72% 100.00% Ps.1,681.8 13.66% 100.00% Ps.1,050.3 4.98% 100.00% =========== ====== ========= ========== ======= ====== ========== ======= ========= |
AS OF DECEMBER 31, AS OF JUNE 30, ------------------------------------------------------------------------------------------ 2000 2000 1999 ------------------------------------------------------------------------------------------ % OF LOAN % OF LOAN % OF LOAN AMOUNT LOANS CATEGORY % AMOUNT LOANS CATEGORY % AMOUNT LOANS CATEGORY % ------------------------------------------------------------------------------------------ (in millions of February 28, 2003, constant pesos, except percentages) Nonfinancial Public Sector........... - - 27.49% - - 26.11% - - 22.12% Local Financial Sector............... - - 5.35 - - 3.77 - - 4.90 Nonfinancial Private Sector and Residents Abroad Advances............................ Ps. 35.9 0.17% 4.62 Ps. 40.1 0.19% 8.25 Ps.31.1 0.16% 7.84 Notes............................... 76.7 0.37 23.61 82.9 0.39 25.60 71.6 0.37 24.82 Mortgage Loans...................... 100.3 0.48 16.72 89.9 0.43 14.16 97.8 0.51 14.48 Pledge Loans........................ 37.2 0.18 4.18 39.0 0.19 4.06 30.0 0.16 4.71 Personal Loans...................... 58.0 0.28 3.87 51.6 0.24 3.45 46.1 0.24 3.51 Credit-Card Loans................... 84.8 0.40 7.95 86.8 0.41 6.84 134.2 0.70 6.41 Placements in Correspondent Banks... - - 3.68 - - 5.82 - - 8.75 Other............................... 10.7 0.05 2.53 11.2 0.05 1.94 12.1 0.06 2.46 Unallocated (1)...................... 192.4 0.91 - 175.4 0.83 - 168.3 0.88 - --------- ------ ------ -------- ------ -------- -------- ---- ------ TOTAL................................ Ps. 596.0 2.84% 100.00% Ps.576.9 2.73% 100.00% Ps.591.2 3.08% 100.00% ========= ====== ====== ======== ====== ======== ======== ==== ====== |
(1) The unallocated reserve consists of the allowances established on the portfolio classified in the "normal" and "normal performance" categories and includes additional reserves in excess of Argentine Central Bank minimum requirements.
CHARGE-OFFS
The following table sets forth the allocation of the main charge-offs made by Banco Galicia during the years ended December 31, 2003 and 2002, 2001 and the six-month period ended December 31, 2000.
FISCAL YEAR ENDED -------------------------------------------------------------------------- DECEMBER 31, -------------------------------------------------------------------------- 2003 2002 2001 -------------------------------------------------------------------------- (in millions of pesos) (in millions of February 28, 2003, constant pesos) CHARGE-OFFS BY TYPE Advances..................................... Ps. 31.3 Ps. 48.6 Ps. 59.0 Notes Promissory Notes ......................... 65.0 14.9 20.1 Discounted and Purchased Bills............ - - 20.7 Documentary Credits....................... - - - Mortgage Loans............................... 34.4 18.5 16.5 Pledge Loans................................. 18.8 19.1 41.0 Personal Loans............................... 36.9 33.7 108.8 Credit-Card Loans Banco Galicia............................. 27.9 22.1 50.2 Regional Credit-Card Companies............ 52.9 89.3 147.9 Other Loans ................................. 0.1 5.7 1.5 Adjustment and Restatement................... - 31.5 - Other........................................ - - - -------- -------- -------- TOTAL........................................ Ps.267.3 Ps.283.4(*) Ps.465.7 ======== ======== ======== |
(*) Does not include Ps. 22.3 million corresponding to Banco Galicia Uruguay S.A.
During fiscal year 2003 the overall level of charge-offs decreased from the level reported in the prior fiscal year, mainly as a result of the significant decrease in charge-offs related to loans granted by the regional credit card companies, which mainly comprises loans to the client segment that was first affected by the crisis, and therefore this portfolio had experienced significant charge offs in the prior years. This was partially offset by higher charge offs on mortgage loans and promissory notes.
The overall level of charge offs for the year ended December 31, 2002,
reflects the effects on the Bank's loan portfolio quality of the outbreak of the
crisis in late 2001 and of the crisis environment prevailing during 2002. It
also reflects the effects of the Argentine government measures aimed at
restructuring private-sector loan portfolios. When comparing the 2002 figures in
the table above with the previous periods' figures, it should be taken into
account that previous year's data was restated in constant currency of February
28, 2003, by using the variation of the WPI, that is using a coefficient of
2.2035. The decrease in the overall level of charge offs in real terms is mainly
due to this restatement. When compared in nominal terms, the overall level of
charge offs in 2002 was 33.0% higher than in 2001. By type of loan, and when
compared in nominal terms, increases can be observed in charge offs of
promissory notes, mortgages and the regional credit-card companies portfolios.
The increases in promissory notes and mortgage portfolios mainly reflect the
fact that the economic crisis of 2002 significantly affected businesses,
including several large businesses. The increase in the charge offs in the
regional credit-card portfolio continued to show the more than proportional
effect of the crisis (increase in unemployment and decrease in the purchasing
power of income) on the lower-income segment of the population.
The overall level of charge offs for the year ended December 31, 2001, reflects the deepening during year 2001 of the recession that began in the second half of 1998. The overall level of charge-offs remained mostly unchanged when compared to the annualized level of charge-offs made during the six-month period ended December 30, 2000. However, charge-offs by type of loan for the year ended December 31, 2001, showed certain variations when compared to the annualized amounts of the six-month period ended December 30, 2000, mostly due
to the dynamics of the long and deep economic recession. Higher charge offs of advances and discounted and purchased bills reflect the fact that, during 2001, the adverse effects of the persistent economic recession extended into the medium and large corporate sector more intensely than in previous periods, with businesses being the main recipients of this type of unsecured loans. Charge-offs on notes and mortgage and pledge loans decreased indicating a slower deterioration of the credit quality of this type of loans. Charge offs on personal loans and credit-card loans related to credit cards managed by the Bank itself remained unchanged. Charge-offs on credit-card loans granted by the regional credit-card companies increased significantly reflecting the fact that the customer segment of these companies, the lower end of the consumer segment of the interior of Argentina, was one of the most affected by the deepening of the recession in 2001.
FOREIGN OUTSTANDINGS
Cross-border or foreign outstandings for a particular country are defined as the sum of all claims on third parties domiciled in that country and comprise loans (including accrued interest), acceptances, interest-bearing deposits with other banks, other interest-bearing investments and any other monetary assets that are denominated in dollars or other nonlocal currency. At the end of fiscal year 2003, we did not have any foreign outstandings that represented 0.75% or more of our total assets.
At the end of fiscal year 2002, we had foreign outstandings amounting to Ps. 206.3 million with United States banks and other financial institutions, representing 0.86% of our total assets. There were no other foreign outstanding representing more than 0.75% of our total assets.
At the end of fiscal year 2001, we had foreign outstandings with United States banks and other financial institutions of Ps. 698.2 million and with United Kingdom banks and financial institutions for Ps. 1,113.2 million, representing 2.50% and 3.99% of our total assets, respectively. There were no other foreign outstandings representing more than 0.75% of our total assets.
COMPOSITION OF DEPOSITS
The following table sets out the composition of Grupo Galicia's deposits as of December 31, 2003, 2002 and 2001. Grupo Galicia's deposits mainly represent Banco Galicia's deposits.
GRUPO GALICIA -------------------------------------------- AS OF DECEMBER 31, -------------------------------------------- 2003 2002 2001 -------------------------------------------- (in millions (in millions of February 28, of pesos) 2003, constant pesos) Current Accounts and Other Demand Deposits......... Ps. 1,178.8 Ps. 730.3 Ps. 1,907.9 Savings Accounts................................... 818.9 563.9 3,240.6 Time Deposits...................................... 2,838.4 2,423.1 6,936.7 Restructured Deposits (1) ......................... 381.9 948.4 - Other Deposits..................................... 168.7 166.3 1,285.8 Plus: Interest Payable and Differences in Quotations (2)..................................... 197.3 377.3 131.9 ----------- ---------- ------------ TOTAL DEPOSITS..................................... Ps. 5,584.0 Ps.5,209.3 Ps. 13,502.9 ----------- ---------- ------------ |
(1) CEDROS, plus restructured deposits exchanged for government bonds in the Canje II, which have not been delivered to customers yet, plus restructured deposits under judicial proceedings.
(2) Includes the CER adjustment of CEDROs.
In 2003, the Group's consolidated deposits increased 7.2% as a result of the increase of voluntary deposits (deposits in current accounts, savings accounts and time deposits) raised by the Bank in Argentina. The increase in voluntary deposits was to a large extent due to the government measures aimed at "freeing" restructured deposits and exchanging them for government bonds. See " -- Main Regulatory Changes in 2002 and 2003 -- Deposits." Substantially all of the increase in time deposits was in short-term peso-denominated time deposits.
The increase in consolidated time deposits was partially offset by the payment by Galicia Uruguay of the first installment of the restructuring schedule agreed with the depositors in December 31, 2003. In addition, the
following factors contributed to offset the increase in the Bank's total deposits: (i) the decrease of the exchange rate during 2003 from Ps. 3,363 per U.S. dollar as of December 31, 2002 to Ps. 2,933 as of December 2003; and (ii) restructured deposits continued to decrease as a result of their amortization in accordance with the schedule established by the government, the payments made by the Bank as a consequence of the judicial orders received by the Bank mandating the reimbursement of deposits, and to the above mentioned measures to eliminate the restructured deposits.
Restructured deposits in Argentina as of December 31, 2003 amounted to Ps. 381.9 million (principal only), with a 59.7% decrease from Ps. 948.4 million (principal only) as of December 31, 2002. Consequently, these deposits represented 6.8% of total deposits as of December 31, 2003, compared to 18.2% as of December 31, 2002.
During 2002, the Group's consolidated deposits decreased 61.4% due to:
(i) the continuity of the run on the Argentine financial system's deposits during the first months of 2002;
(ii) the run on its deposits experienced by Galicia Uruguay until the suspension of its activities in February 13, 2002;
(iii) the restructuring, completed during the last quarter of 2002, of Galicia Uruguay's deposits, which, in accordance with the restructuring proposal and depositor preferences, were partially replaced by negotiable obligations;
(iv) the decrease in the Bank's deposits in Argentina as a consequence of the judicial orders received by the Bank mandating the reimbursement of deposits; and
(v) the completion by late December 2002 of the Canje I. See " -- Main Regulatory Changes in 2002 and 2003 -- Deposits."
It should be noted that, in the table above, prior years' figures were restated in constant currency of February 28, 2003, by using the variation of the WPI between January 1, 2002 and February 28, 2003, that is by using a coefficient of 2.2035. Therefore, the decrease in 2002 is to a large extent explained by said restatement of the December 31, 2001, figures. In nominal terms, the fall in the Group's consolidated deposits was 15.7%.
The decrease of the Bank's total deposits in 2002 was mitigated by the fact that: (i) total deposits as of December 31, 2002, included US$554.9 million of deposits at the Bank's foreign branches and subsidiaries, that were dollar denominated and valued at the market exchange rate, and (ii) the exchange rate during 2002 increased from Ps. 1.00 per U.S. dollar as of December 31, 2001 to Ps. 3.363 as of December 2002.
The decrease in savings accounts during 2002 is attributable to the fact that most savings accounts in the Bank operating in Argentina were dollar denominated as of December 31, 2001 and these deposits were restructured, with the balances of these restructured deposits (net of decreases and amortizations) shown under "Restructured Deposits" in the table above. This line included as of December 31, 2002, Ps. 948.4 million of restructured deposits (principal only). No restructured deposits were outstanding as of the close of fiscal year 2001. The decrease in time deposits is due, in part, to the restructuring of a large portion of Galicia Uruguay deposits as negotiable obligations. Galicia Uruguay had consolidated deposits for US$1,355.7 million as of December 2001 which were mostly time deposits. As of December 31, 2002 this subsidiary's consolidated deposits amounted to US$550.0 million.
The table above shows the significant loss in deposits experienced by the Bank in 2001 as a consequence of the massive runs suffered by the Bank in Argentina throughout 2001 and by its subsidiary, Galicia Uruguay, in December 2001. Consolidated deposits fell 31.2% during 2001.
For more information on deposits, see Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Funding."
The following table provides a breakdown of the Group's consolidated deposits as of December 31, 2003, by contractual maturity date and currency of denomination. As already mentioned in this annual report, the contractual maturity of CEDROs was set by the Argentine government's regulations.
PESO-DENOMINATED DOLLAR-DENOMINATED TOTAL ---------------------------------------------------------------- % OF % OF % OF AMOUNT TOTAL AMOUNT TOTAL AMOUNT TOTAL ---------------------------------------------------------------- (in millions of pesos) Current Accounts and Demand Deposits................ Ps.1,130.1 30.2% Ps. 48.7 3.0% Ps.1,178.8 21.9% Savings Accounts.................................... 641.6 17.2 177.3 10.8 818.9 15.2 Time Deposits....................................... 1,507.6 40.3 1,330.8 80.9 2,838.4 52.7 Maturing within 30 Days........................ 349.0 9.3 65.3 4.0 414.3 7.7 Maturing after 31 Days but within 59 Days...... 402.8 10.8 44.4 2.7 447.2 8.3 Maturing after 60 Days but within 89 Days...... 449.0 12.0 28.3 1.7 477.3 8.9 Maturing after 90 Days but within 179 Days..... 263.3 7.0 24.6 1.5 287.9 5.3 Maturing after 180 Days but within 365 Days.... 42.5 1.2 6.5 0.4 49.0 0.9 Maturing after 365 Days........................ 1.0 - 1,161.7 70.6 1,162.7 21.6 Restructured Deposits (1)........................... 381.9 10.2 - - 381.9 7.1 Other Deposits...................................... 79.8 2.1 88.9 5.3 168.7 3.1 Maturing within 30 Days........................ 79.3 2.1 82.5 5.0 161.8 3.0 Maturing after 31 Days but within 59 Days...... - - - - - - Maturing after 60 Days but within 89 Days...... - - - - - - Maturing after 90 Days but within 179 Days..... - - - - - - Maturing after 180 Days but within 365 Days.... - - - - - - Maturing after 365 Days........................ 0.5 - 6.4 0.3 6.9 0.1 ---------- ----- ---------- ------ ---------- ----- TOTAL DEPOSITS (2).................................. Ps.3,741.0 100.0% Ps.1,645.7 100.0% Ps.5,386.7 100.0% ---------- ----- ---------- ------ ---------- ----- |
(1) CEDROs, plus restructured deposits exchanged for government bonds in the Canje II, which have not been delivered to customers yet, plus restructured deposits under judicial proceedings. Only principal. Excludes the CER adjustment.
(2) Only principal.
The preceding table shows that the highest concentration of time deposits is in the "Within 30 Days," "After 31 Days but Within 59 Days" and "After 60 Days but Within 89 Days" categories, amounting to 24.9% of the total.
With respect to time deposits raised in Argentina, it is worth pointing out that, even though the Argentine Central Bank had authorized the raising of time deposits of less than 30 days (up to 7- and 14-day terms) as from March 2002, depending on the characteristics of the funds raised, through Communique "A" 4032 effective as of November 1, 2003, such entity reestablished the minimum term to raise deposits in 30 days. The average maturity of our voluntary time deposits in Argentina both peso- and dollar-denominated was approximately 60 days as of December 31, 2003, having increased during 2003 from approximately 40 days as of December 31, 2002.
Dollar-denominated time deposits in the table above with a maturity of more than 365 days corresponded primarily to Galicia Uruguay's consolidated restructured deposits.
The schedule established by the government for the reimbursement of CEDROS began in March 2002 and January 2003, for those originally denominated in pesos and in U.S. dollars, respectively, and expires in November 2004 and August 2005, respectively.
As of December 31, 2003, dollar-denominated deposits, for Ps. 1,645.7 million, represented 30.6% of total deposits, Ps. 1,270.8 million of which corresponded to Galicia Uruguay consolidated, representing mostly time deposits, and Ps. 0.8 million to the Bank's Cayman Branch.
The following table provides information about the maturity of the Group's outstanding time deposits exceeding Ps. 100,000, according to whether they were opened at domestic or foreign branches as of December 31, 2003.
ISSUED BY ISSUED BY DOMESTIC OFFICES FOREIGN OFFICES ---------------- --------------- (in millions of pesos) Time Deposits Within 29 Days........................................................... Ps. 151.1 - After 30 Days but within 59 Days......................................... 180.0 - After 60 Days but within 89 Days......................................... 146.9 - After 90 Days but within 179 Days........................................ 128.4 - After 180 Days but within 365 Days....................................... 29.7 - After 365 Days........................................................... 1.3 1,060.5 --------- ----------- TOTAL TIME DEPOSITS.......................................................... Ps. 637.4 Ps. 1,060.5 RESTRUCTURED DEPOSITS........................................................ Ps. 108.8 - Other Deposits Within 29 Days........................................................... - - After 30 Days but within 59 Days......................................... - - After 60 Days but within 89 Days......................................... - - After 90 Days but within 179 Days........................................ - - After 180 Days but within 365 Days....................................... - - After 365 Days........................................................... - Ps. 6.4 --------- ----------- TOTAL OTHER DEPOSITS......................................................... - Ps. 6.4 --------- ----------- TOTAL DEPOSITS (2) .......................................................... Ps. 746.2 Ps. 1,066.9 ========= =========== |
(1) CEDROS, plus restructured deposits exchanged for government bonds in the Canje II, which have not been delivered to customers yet, plus restructured deposits under judicial proceedings. Only principal. Excludes the CER adjustment.
(2) Only principal.
RETURN ON EQUITY AND ASSETS
The following table presents certain selected financial information and ratios for Grupo Galicia for the periods indicated.
GRUPO GALICIA --------------------------------------------- FISCAL YEAR ENDED --------------------------------------------- DECEMBER 31, --------------------------------------------- 2003 2002 2001 --------------------------------------------- (in millions of (in millions of February 28, pesos, except 2003, constant pesos, except percentages) percentages) Net Income After the Loss Absorption.................................. Ps. (217.1) Ps. (1,471.5) Ps. 264.6 Net Income Before the Loss Absorption................................. (217.1) (2,841.5) 264.6 Average Total Assets.................................................. 22,530.3 29,500.9 31,967.4 Average Shareholders' Equity.......................................... 1,529.4 2,431.9 3,053.4 Shareholders' Equity at End of the Period............................. 1,462.3 1,638.7 3,103.5 Return on Assets (1).................................................. (0.92)% (5.90)% 0.90% Return on Shareholders' Equity (2).................................... (14.19) (60.51) 8.67 Declared Cash Dividends............................................... - - - Dividend Payout Ratio................................................. - - - Average Shareholders' Equity as a Percentage of Average Total Assets.. 6.79% 8.24% 9.55% Shareholders' Equity at the End of the Period as a Percentage of Average Total Assets................................................. 6.49 5.55 9.71 =========== ============ =========== |
(1) Before the absorption allowed by Argentine Central Bank Communique "A" 3800, for fiscal year 2002 this ratio was (10.55) %.
(2) Before the absorption allowed by Argentine Central Bank Communique "A" 3800, for fiscal year 2002 this ratio was (116.84) %.
SHORT-TERM BORROWINGS
Grupo Galicia's short-term borrowings represents mainly Banco Galicia's short-term borrowings.
Short-term borrowings include all the Bank's borrowings (including repos and debt securities or negotiable obligations) with a contractual maturity of less than one year, owed to the Argentine Central Bank, foreign and domestic financial institutions and negotiable obligations holders.
AS OF DECEMBER 31, --------------------------------------------------- 2003 2002 2001 --------------------------------------------------- (in millions of February 28, (in millions of pesos) 2003, constant pesos) SHORT-TERM BORROWINGS Argentine Central Bank...................................... Ps. 0.8 Ps. 4,831.2 Ps. 2,719.8 Other Banks and International Entities (1) Lines of Credit from Domestic Banks..................... 25.1 48.0 42.8 Lines of Credit from Foreign Banks...................... 1,231.8 1,548.8 567.4 Repos with Domestic Banks (1)............................... - - 954.8 Repos with Foreign Banks (1)................................ - - 88.1 Debt Securities (1) ........................................ 9.5 129.2 962.7 ---------- ----------- ----------- TOTAL....................................................... Ps.1,267.2 Ps. 6,557.2 Ps. 5,335.6 ========== =========== =========== |
(1) For 2003 and 2002, included short term borrowings under restructuring.
Banco Galicia's short-term borrowings totaled Ps. 1,267.2 million as of December 31, 2003, compared to Ps. 6,557.1 million as of December 31, 2002 and Ps. 5,335.6 million as of December 31, 2001.
The decrease in the Bank's short term borrowings in 2003 is mainly due to the fact that, as of December 31, 2003, the financial assistance for liquidity support owed to the Argentine Central Bank was recorded as a long term liability, while as of December 31, 2002, such liabilities were recorded as a 30-day revolving facility. On November 27, 2003, through its Resolution No. 1, the Financial System's Restructuring Unit authorized the Argentine Central Bank to restructure such financial assistance in accordance with: (i) the provisions of Decree No. 739/03 and Decree No. 1262/03 and (ii) the repayment schedule presented by the Bank to the Argentine Central Bank. On February 3, 2003, the Argentine Central Bank approved such schedule, which contemplates the repayment of the financial assistance for liquidity support owed to the Argentine Central Bank in 92 monthly installments beginning in March 2004, inclusively. As of December 31, 2002, Ps. 4,831.2 million corresponding to such assistance were included as short term borrowings. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Funding."
In addition short term borrowings decreased in 2003 due to: (i) the decrease of the balance of lines with foreign banks, mainly as a result of the appreciation of the peso, and (ii) the decrease of the balance of negotiable obligations as a result of the progress made by the regional credit card companies in the restructuring of its short-term negotiable obligations, past due as of December 31, 2002, into long term liabilities.
The increase in the Bank's short term borrowings in 2002 as compared with 2001 was attributable to: (i) additional financial assistance for liquidity support granted by the Argentine Central Bank to the Bank, in the first months of 2002 and before the implementation of the Galicia capitalization and liquidity plan. It should be noted that the balance of "Repos with Domestic Banks" as of December 31, 2001, mainly represents Repos with the Argentine Central Bank, given that as a result of the crisis, in late 2001, the only source of funding available to banks in the local market became the Argentine Central Bank, in its capacity as lender of last resort. At maturity such Repos were cancelled by means of advances from the Argentine Central Bank.
The increase in the balance of lines from foreign banks in 2002 mainly reflects the reallocation of an US commercial paper recorded as negotiable obligations as debt with foreign banks, for US$250 million.
The following table shows for the significant short-term borrowings of Grupo Galicia for the fiscal years ended December 31, 2003, 2002 and 2001:
- the weighted-average interest rate at year end,
- the maximum balance recorded at the monthly closing dates of the periods,
- the average balances for each period, and
- the weighted-average interest rate for the periods.
GRUPO GALICIA, AS OF DECEMBER 31, ----------------------------------------------------- 2003 2002 2001 ----------------------------------------------------- (in millions of (in millions of February 28, 2003, pesos ) constant pesos) ARGENTINE CENTRAL BANK Weighted-average interest rate at end of period........ 9.00% 4.38% 9.00% Maximum balance recorded at the monthly closing dates.. Ps. 0.8 Ps. 4,831.2 3,414.0 Average balances for each period....................... 0.3 4,297.8 294.4 Weighted-average interest rate for the period.......... 9.00% 29.09% 9.00% LINES OF CREDIT FROM DOMESTIC BANKS Weighted-average interest rate at end of period........ 6.88% 6.48% 20.35% Maximum balance recorded at the monthly closing dates.. Ps. 43.4 Ps. 144.3 Ps. 172.3 Average balances for each period....................... 35.4 73.1 182.7 Weighted-average interest rate for the period ......... 6.82% 9.86% 37.03% LINES OF CREDIT FROM FOREIGN BANKS Weighted average interest rate at end of period ....... 7.10% 6.20% 6.51% Maximum balance recorded at the monthly closing dates.. Ps. 1,344.4 Ps. 1,877.6 Ps. 916.9 Average balances for each period ...................... 1,239.0 1,443.2 715.7 Weighted average interest rate for the period ......... 7.10% 6.12% 6.19% REPOS WITH DOMESTIC BANKS Weighted-average interest rate at end of period ....... - - 9.00% Maximum balance recorded at the monthly closing dates.. - Ps. 1,056.8 Ps. 1,259.1 Average balances for each period ...................... - 330.9 91.9 Weighted-average interest rate for the period ......... - 33.42% 9.13% REPOS WITH FOREIGN BANKS Weighted-average interest rate at end of period ....... - - 3.50% Maximum balance recorded at the monthly closing dates.. - - Ps. 461.8 Average balances for each period ...................... - - 365.8 Weighted-average interest rate for the period ......... - - 3.91% NEGOTIABLE OBLIGATIONS Weighted-average interest rate at end of period ....... 16.05% 16.18% 9.44% Maximum balance recorded at the monthly closing dates.. Ps. 128.0 Ps. 238.7 Ps. 1,377.4 Average balances for each period ...................... 50.9 182.7 1,235.5 Weighted-average interest rate for the period.......... 16.05% 16.19% 8.86% ----------- ----------- ----------- |
REGULATORY CAPITAL
The capital adequacy of Grupo Galicia is not under the supervision of the Argentine Central Bank. Grupo Galicia has a minimum capital requirement established by the Commercial Companies' Law (Ley de Sociedades Comerciales) of Ps. 0.012 million.
Due to the significant changes suffered during 2002 by the financial system's operations, which significantly affected the variables to determine the minimum capital requirements, through its Communiques "A" 3599 and "A" 3604 dated May 3 and 9, 2002, respectively, the Argentine Central Bank suspended the submission of capital adequacy information by financial institutions. On June 2, 2003 and July 25, 2003, through its Communiques "A" 3959 and "A" 3986, respectively, the Argentine Central Bank established new capital adequacy rules and that compliance with such rules by financial institutions would be required beginning on January 1, 2004.
The Bank was in compliance with the Argentine Central Bank's new capital adequacy requirements during 2004, both before and after the increase in its regulatory capital resulting from the restructuring of the foreign debt of its head office in Argentina and of its Cayman Branch. For more information on this restructuring see " -- Business Overview -- Banco Galicia -- Restructuring of the Foreign Debt of the Bank's Head Office in Argentina and its Cayman Branch."
The current and the previous capital adequacy rules established by the Argentine Central Bank are based on the methodology of the Basel Committee on Banking Supervision of the Bank for International Settlements. Banks have to comply with capital requirements both on an unconsolidated basis and on a consolidated basis with its significant subsidiaries. Banco Galicia's significant subsidiaries are Galicia Uruguay and the regional credit-card companies that Banco Galicia indirectly controls.
For more information on Argentine Central Bank's minimum capital requirement rules, see " -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Capital Adequacy Requirements."
The table below presents Banco Galicia's capital requirement and computable capital for the dates indicated. The information is consolidated with significant subsidiaries, with the regional credit card companies incorporated in June 1999.
AS OF DECEMBER 31, ------------------------------------------------------------------- 2003(*) 2002(*) 2001 ------------------------------------------------------------------- (in millions of pesos, (in millions of February 28, 2003, constant except percentages) pesos, except percentages) SHAREHOLDERS' EQUITY................................ Ps. 1,352.8 Ps. 1,551.7 Ps. 3,090.3 ARGENTINE CENTRAL BANK MINIMUM CAPITAL REQUIREMENTS Allocated to Financial Assets .................... - - 1,465.3 Allocated to Fixed Assets ........................ - - 202.3 Allocated to Market Risk.......................... - - 0.2 Allocated to Interest-Rate Risk................... - - 64.1 Lending to the Nonfinancial Public Sector......... - - 55.7 Government Securities in Investment Accounts.......................................... - - 92.3 ----------- ----------- ----------- MINIMUM CAPITAL REQUIRED BY THE ARGENTINE CENTRAL BANK (A) - - Ps. 1,879.9 CAPITAL CALCULATED UNDER ARGENTINE BANKING GAAP Core Capital....................................... - - 3,103.1 Supplemental Capital............................... - - 158.6 Deductions Investments in Financial Entities................. - - (2.2) Organization Expenses............................. - - (208.4) Goodwill Recorded from June 30, 1997.............. - - (258.2) Real Estate Properties for Banco Galicia's Own Use and Miscellaneous, for which no title deed has been made.......... (61.7) Other............................................. - - (58.0) ----------- ----------- ----------- Total.............................................. - - (588.5) Additional Capital - Market Variation.............. - - 2.2 ----------- ----------- ----------- CAPITAL CALCULATED UNDER ARGENTINE BANKING GAAP.............................................. - - Ps. 2,675.4 EXCESS CAPITAL Excess over required Capital (B)-(A).............. - - Ps. 795.5 Excess over Required Capital as a % of Required Capital ................................. - - 42.32% Total Capital Ratio................................. - - 17.18 |
(*) Through its Communiques "A" 3599 and "A" 3604 dated May 3 and 9, 2002, respectively, the Argentine Central Bank suspended the submission of this information.
As of December 31, 2001, the Bank's computable capital exceeded the minimum capital requirement of Ps. 1,879.9 million by Ps. 795.5 million, representing an excess of 42.3%. This represented a Ps. 245.7 million
increase in excess computable capital from the December 31, 2000 level, primarily due to a Ps. 102.3 million decrease in the minimum capital requirement and a Ps. 143.4 million increase in the regulatory capital calculated under the Argentine Central Bank rules. The lower minimum capital requirement can be explained by the reduction in the risk-weighted value of financial assets, mainly due to the decrease in the average loan balance during 2001, while the higher computable capital was mainly a consequence of the increase in retained earnings.
For more information regarding Banco Galicia's capital, see Item 5. "Operating and Financial Review and Prospects -- Item 5B. Liquidity and Capital Resources -- Capital."
GOVERNMENT REGULATION
As a financial services holding company, Grupo Galicia does not have a specific institution controlling its activities as a holding entity. Nevertheless, its subsidiaries have different regulatory entities regulating their activities.
In the case of Banco Galicia, the Argentine Central Bank is the regulatory entity. For a description of Argentine banking regulations and the main regulatory changes introduced by the government affecting financial institutions' activities, see " -- Main Regulatory Changes in 2002 and 2003" and " -- Argentine Banking System and Regulation -- Argentine Banking Regulation" below.
With respect to the insurance business, Sudamericana Holding S.A.'s insurance subsidiaries are regulated by the National Insurance Superintendency and Laws No. 17,418, No. 20,091 and No. 22,400. The insurance companies held by Sudamericana Holding S.A. are Galicia Vida Compania de Seguros S.A., Galicia Retiro Compania de Seguros S.A., Galicia Patrimoniales S.A. and Instituto de Salta Compania de Seguros de Vida S.A. Sudamericana Holding S.A. also holds Medigap Salud S.A. and Sudamericana Asesores de Seguros S.A., both of which are regulated by the Commercial Companies' Law. Sudamericana Asesores de Seguros S.A. is also regulated by the National Insurance Superintendency through Law No. 22,400.
Net Investment S.A., our Internet incubator, and its controlled companies are regulated by the Commercial Companies' Law and do not have a specific regulating agency.
Galicia Warrants is regulated by National Law No. 9,643.
MINIMUM CAPITAL REQUIREMENTS OF NONBANKING COMPANIES
We and the companies we control are regulated by the Law Governing Commercial Companies. In section No. 186, the law establishes that the capital of a corporation (sociedad anonima) cannot be less than Ps. 12,000 (twelve thousand pesos). In addition to this law, the Bank must also comply with the regulations set forth by the Argentine Central Bank.
The insurance companies controlled by Sudamericana Holding S.A. must meet the minimum capital requirements set by General Resolution No. 25,804 of Argentina's Superintendency of Insurance. The abovementioned resolution requires insurance companies to maintain a minimum capital level equivalent to the highest of the amounts calculated as follows:
a) By line of insurance: This method establishes a fixed amount by line of insurance. For life insurance companies, it is Ps. 750,000, rising to Ps. 3 million for companies that offer pension-linked life insurance. For annuity providers that do not offer life annuities or annuities covering disability and other work-related risks, the requirement is Ps. 2 million. For property insurance companies, the requirement is Ps. 5 million, excluding the automotive line of business.
b) By premiums and additional fees: To use this method, the company must calculate the sum of the premiums written and additional fees earned in the last 12 months. Of the total, the company must calculate 18% of any result up to Ps. 5 million, and 16% of any result over Ps. 5 million. Finally, it must add the resulting figures and adjust the total by the ratio of net paid claims to gross paid claims for the last 36 months. This ratio must be at least 50%.
c) By claims: To use this method, the company must calculate the sum of gross claims paid during the 36 months prior to the end of the period under analysis. To that amount, it must add the difference between the balance of unpaid claims as of the end of the period under analysis and the balance of unpaid claims as of the 36th month prior to the end of the period under analysis. The resulting figure must be divided by three. Then the company must calculate 26% of any result up to Ps. 3.5 million, and 23% of any result over Ps. 3.5 million. The resulting figure must be adjusted by the ratio of net paid claims to gross paid claims for the last 36 months. This ratio must be at least 50%.
d) For life insurance companies that offer policies with an investment component, the figures obtained in b) and c) must be increased by an amount equal to 4% of the technical reserves. The latter total must be adjusted by the ratio of net claims reserves to gross claims reserves (at least 85%), plus 0.03% of at-risk capital adjusted by the ratio of net claims reserves to gross claims reserves (at least 50%).
The minimum required capital must then be compared to computable capital, defined as shareholder's equity less noncomputable assets. Noncomputable assets consist mainly of deferred charges, pending capital contributions, and excess investments in authorized instruments. As of December 31, 2003, the computable capital of the companies held by Sudamericana Holding S.A. exceeded the minimum requirement of Ps. 11.7 million by Ps. 19.6 million, representing an excess of approximately 167%.
MAIN REGULATORY CHANGES IN 2002 AND 2003
GENERAL
In order to deal with the 2001 and 2002 crisis, on January 7, 2002, Congress enacted the Public Emergency Law. The main measures taken by the government through the enactment of such Law and a series of decrees, include the following:
- ratifying the suspension of payments of Argentina's sovereign debt except for debt with the multilateral credit agencies;
- repealing of the articles of the Convertibility Law that had established in 1991 the one-to-one peso-dollar parity, devaluing the peso and subsequently allowing the peso to float, which resulted in an increase in such parity of approximately 240.0% during 2002;
- tightening of foreign-exchange controls and restrictions to transfers abroad, which began to be loosened at the end of 2002;
- ratifying and tightening the restrictions to cash withdrawals from bank deposits established in December 2001 (the "corralito"), restrictions that were lifted in December 2002;
- establishing a compulsory "asymmetric" conversion of certain dollar-denominated assets and liabilities into peso-denominated assets and liabilities at different exchange rates ("asymmetric pesification"), as follows:
- private sector debt (individual and corporate dollar-denominated debt) with financial institutions, and other creditors, was converted into peso-denominated debt at a one-to-one exchange rate;
- dollar-denominated public sector debt instruments in financial institutions' portfolios, both national and provincial, were converted into peso-denominated instruments at an exchange rate of Ps. 1.40 per US$1.00; and
- dollar-denominated bank deposits were converted into peso-denominated bank deposits at an exchange rate of Ps. 1.40 per US$1.00, while public-sector debt, bank and corporate debt governed by foreign law remained dollar-denominated;.
- modifying the yields of assets and the cost of liabilities pesified at the Ps. 1.40 per US$1.00 exchange rate, establishing fixed maximum and minimum interest rates, respectively, and establishing the indexation of the capital of those assets and liabilities to the variation of prices or salaries;
- restructuring bank peso-denominated time deposits and dollar-denominated deposits, above certain amounts, and establishing a repayment schedule ending in 2003 and 2005 depending on whether the deposit was originally peso or dollar-denominated (this restructuring was known as the "corralon");
- establishing a series of voluntary swaps of deposits in the "corralito" or of restructured deposits for government bonds, as a response to the inability of the financial system to return deposits in accordance with their original terms and conditions. Through Decree No. 739/03 of April 1, 2003, the lifting of the "corralon" was established;
- amending the charter of the Argentine Central Bank; and
- allocating government bonds to financial institutions in compensation for the losses that would otherwise arise from the "asymmetric pesification." As of the date of this annual report, the government and the Argentine Central Bank have provided a series of rules to determine the amount of compensation in connection with the "asymmetric pesification" to which each financial institution is entitled. However, certain situations remain that have not been contemplated by such rules, such as the provision of compensation for the effects of the "asymmetric pesification" on nonbanking subsidiaries with complementary activities.
On October 29, 2003, the Congress approved the provision to financial institutions of compensation for the imposition by the government of different inflation adjustment coefficients on pesified bank assets. However, as of the date of this annual report, the provision of compensation to financial institutions for the negative effect on their financial condition resulting from the reimbursement of dollar-denominated deposits, pursuant to depositors' judicial actions ("amparo claims"), at exchange rates greater than Ps. 1.40 per US$1.00, is pending.
Some of these measures are described in more detail below and under " -- Argentine Banking System and Regulation -- Argentine Banking Regulation."
FOREIGN EXCHANGE MARKET
In late 2001 and early 2002 restrictions were imposed on access to the Argentine foreign exchange market and on capital movements, which were tightened by mid 2002. The Public Emergency Law put an end to the Convertibility Law regime and thereby abandoned over ten years of fixed 1-to-1 U.S. dollar-peso parity, and granted the Executive Branch the power to set the exchange rate between the peso and foreign currencies and to regulate the foreign exchange market.
In order to prevent the appreciation of the peso that took place principally during the fourth quarter of 2002, and mainly through its Communiques "A" 3826, "A" 3843, "A" 3845, "A" 3866, "A" 3944, "A" 4087, and A" 4079, the Argentine Central Bank began to ease some of these restrictions.
Effective January 1, 2003, the Argentine Central Bank authorized the
anticipated payment of imports and extended the maximum period for exporters of
capital goods to liquidate foreign exchange. Likewise, it subsequently lifted
restrictions on: (i) transfers of foreign exchange abroad to effect payments of
principal in connection with nonfinancial private sector debts of a financial
nature that had been restructured and in connection with debts that had become
past due for amounts not to exceed US$150,000 per month; and (ii) the transfer
of funds to pay interest on financial debts, profits and dividends. In addition:
(i) access of individuals and legal entities to the foreign exchange market was
enhanced by increasing the monthly purchase amounts authorized from US$100,000
to US$150,000; (ii) authorized holdings of foreign exchange by financial
institutions were also increased; and (iii) the limit over which exporters had
to liquidate foreign exchange with the Argentine Central Bank was increased from
US$200,000 to US$1.0 million.
In May 2003, the foreign exchange market regulations were further relaxed. Mainly through Communique "A" 3944, effective May 6, 2003, the Argentine Central Bank provided for an additional easing of restrictions, which included, among others, the following:
- the period for exporters of goods and services to liquidate foreign exchange was extended from 30 to 90 working days;
- except for certain export transactions, the obligation for exporters to liquidate foreign exchange through the Argentine Central Bank was eliminated;
- anticipated payment of foreign debt arising from import transactions was authorized independently from the contractual maturity;
- the requirement to obtain prior authorization of the Argentine Central Bank was eliminated for transfers of funds abroad for payment of principal of debts of a financial nature by financial and nonfinancial legal entities and local governments. The need for Argentine Central Bank prior authorization was not lifted in the case of financial institutions with outstanding financial assistance for liquidity support from the Argentine Central Bank. See " -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Financial Assistance from the Argentine Central Bank -- Financial Assistance for Liquidity Support Granted Before April 1, 2003." The requirement to obtain prior authorization from the Argentine Central Bank is not applicable to the payments in connection with the Bank's foreign debt restructured on May 18, 2004, as such restructuring was approved by the Argentine Central Bank. See " -- Business Overview -- Banco Galicia -- Restructuring of the Foreign Debt of the Bank's Head Office in Argentina and its Cayman Branch." On February 3, 2004, financial institutions with no outstanding financial assistance from the Argentine Central Bank were authorized to prepay debts with foreign creditors, with certain exceptions.
- the limit to purchase foreign exchange without the prior authorization of the Argentine Central Bank, applicable to all Argentine residents, was increased from to US$500,000 per month. On January 20, 2004, Communique "A" 4079 increased such limit to US$1 million, and Communique "A" 4128, dated April, 16, 2004, increased it again to US$2 million.
On June 30, 2003, Decree No. 285/03, regulated by Argentine Central Bank Communique "A" 3972, established effective July 1, 2003, a system for the registration of funds entering into Argentina and a 180-day restriction on the remittance of such registered funds abroad. This restriction does not apply to foreign trade transactions or to foreign direct investment.
During 2003, the Argentine Central Bank issued a series of rules further enhancing access to the foreign exchange market. Effective as of February 3, 2004, through Communique "A" 4086, access by mutual funds to the foreign exchange market was authorized.
LOANS TO THE PRIVATE SECTOR AND ASYMMETRIC INDEXATION
Pursuant to Decree No. 214/02 dated February 3, 2002, as amended, loans to the private sector were pesified at the Ps. 1 per dollar parity. These loans' principal was to be adjusted by a coefficient whose variation is tied to the changes in the consumer price index. The adjustment coefficient was known as the Stabilization Coefficient of Reference ("Coeficiente de Estabilizacion de Referencia") or CER (as per its initials in Spanish), with a maximum interest rate was to be applied. The adjustment by the CER coefficient would be retroactively applied beginning 180 days as from February 4, 2002. Subsequently, most of the loans to individuals were excluded from this adjustment, which was replaced by another coefficient that is linked to the changes in the general level of salaries. This coefficient was called the Variation Coefficient of Salaries ("Coeficiente de Variacion de Salarios") or CVS (as per its initials in Spanish). Decrees No. 762/2002 and No. 1242/2002, dated May 7, 2002 and July 15, 2002, respectively, Law No. 25,713 dated November 28, 2002, as ruled by Decree No. 44/03 dated January 26, 2003, and Law No. 25,796, published in the Official Gazette on November 17, 2003 and passed by Congress on November 14, 2003 provided for the following measures, among others:
- the following loans originally agreed in U.S. dollars and then pesified were excluded from the application of the CER: (i) loans secured by residential mortgages on property representing the borrower's sole family residence agreed upon for up to US$250,000; ii) personal loans originally agreed up to Ps. 12,000 or US$12,000 or the equivalent amount in foreign currency; and iii) personal loans secured by a pledge originally agreed up to Ps. 30,000 or US$30,000 or the equivalent amount in foreign currency.
- the application of the adjustment by the CVS as from October 1, 2002 (until such date, loan conditions to be applied would be those in force as of February 2, 2002) and the elimination of such adjustment
beginning on April 1, 2004. This rule was regulated through Decree No. 117/04 published in the Official Gazette on January 6, 2004 and through Communique "A" 4103 issued by the Argentine Central Bank. The Bank began to apply the adjustment by the CVS to the principal of eligible loans on November 2003.
- loans to be adjusted by the CER shall bear an interest rate ranging from 3.5% to 8%, depending on the type of debtor, the existence of guarantees and the type of loan.
- loans to be adjusted by the CVS shall bear an interest rate that would be the lowest between the loan's contractual rate and the following maximum interest rates: 12.38% for mortgage loans, 16.41% for loans secured by a pledge and 25.48% for personal loans.
- those debtors with obligations not included in the above-mentioned exceptions and with a total indebtedness in the financial system, as of February 3, 2002, of up to Ps. 400,000, would be able to capitalize the CER adjustment accrued up to September 30, 2002. Once the debt's new amount was recalculated in such way, the loan had to be restructured so that the first installment at the moment of the restructuring did not exceed the last installment paid in accordance with the previous conditions. If the loan was not an installment loan, the CER adjustment accrued and accumulated up to September 30, 2002, must be paid in installments throughout a period of not less than 120 days. Decree No. 117/2004 set forth that the restructuring of these loans and the offer of alternatives to debtors by creditors to pay off the accumulated CER amounts had to be made before March 1, 2004.
On July 25, 2003, the Argentine Central Bank authorized, through its Communique "A" 3987, financial institutions to grant loans to be adjusted by the CER, with the purposes of increasing peso-denominated loan origination, both medium- and long-term.
DURING MOST OF 2002, SEVERAL REGULATIONS WERE IN FORCE THAT RESTRICTED CREDITORS' ABILITY TO EXERCISE THEIR RIGHTS, INCLUDING FORECLOSURE PROCEEDINGS ON MORTGAGES AND PLEDGES, ALL PRELIMINARY MEASURES, SUCH AS ATTACHMENTS AND PRELIMINARY INJUNCTIONS ON THOSE GOODS AND/OR FACILITIES OWNED BY DEBTORS. THE SUSPENSION OF FORECLOSURE PROCEEDINGS WAS EXTENDED SEVERAL TIMES THROUGH REGULATIONS OR BY MEANS OF BANKS' VOLUNTARY COMMITMENT TO NOT BRING FORECLOSURE ACTIONS AGAINST DEBTORS UNTIL THE NATIONAL CONGRESS HAD THE OPPORTUNITY TO CONSIDER A NEW PROJECT OF LAW IN SUCH RESPECT.
On February 4, 2003, Decree No. 204/03 created the Legal Emergency Units to act as mediators between borrowers and creditors during a 90-day period beginning on February 6, 2003, the date of publication of the Decree in the Official Gazette. This mechanism did not involve the suspension or interruption of judicial proceedings' terms or of judicial or extrajudicial foreclosures, as regulated by the applicable rules.
On May 8, 2003, Congress enacted Act No. 25,737 whereby foreclosure proceedings on real property constituting the home of debtors were suspended for 90-day working days from the date said regulation was published, that is June 3, 2003. On June 26, 2003, through Decree No. 247/03 the government created the Foreclosure Proceedings Registry (Registro de Procedimientos de Ejecucion), with the purposes of identifying borrowers affected by foreclosure proceedings on their sole home, assess the situation and offer a solution not affecting creditors' rights or the Government's financial condition.
Through Law No. 25,798 enacted on November 6, 2003, the Mortgage Refinancing Regime (Sistema de Refinanciacion Hipotecaria) was created in order to refinance nonperforming loans secured by real property constituting the debtor's sole family residence. The Bank decided not to participate in this mortgage refinancing regime.
DEPOSITS
On December 3, 2001, Decree No. 1570/01 established the restrictions to depositors' ability to make cash withdrawals from bank accounts known as the "corralito." The "corralito" did not prevent transfers of deposits among banks. A banking holiday was imposed between December 21, 2001 until January 10, 2002.
On January 10, 2002, Resolution No. 6/02 of the Ministry of Economy established the first restructuring of time deposits in pesos and of most deposits originally denominated in U.S. dollars, above certain amounts. Certain nonrestructured amounts in dollar-denominated deposit accounts were allowed to be transferred to peso-denominated demand accounts at the Ps. 1.40 exchange rate and depositors were allowed to make monthly withdrawals of up to US$500. This limit was modified several times. Resolution No. 6/02, as amended, established a restructured deposits' monthly reimbursement schedule beginning in March 2002 and ending in November 2004, in the case of deposits originally constituted in pesos, and beginning in January 2003 and ending in August 2005, for deposits originally constituted in dollars. Restructured deposits were known as deposits in the "corralon" and were not allowed to be transferred among banks. After Resolution No. 6/02, the "corralito" referred to the restrictions applicable to transactional deposits only.
On February 3, 2002, Decree No. 214/02 established the mandatory conversion of all deposits in U.S. dollars or other foreign currencies in the Argentine financial system into pesos at the exchange rate of Ps. 1.40 per US$1.00. Decree No. 214/02 also allowed for the entire withdrawal of salaries and pensions in cash and other exceptions.
The "corralito" and the "corralon" were meant to shield banks from massive withdrawal of deposits. However, the financial system's deposit levels continued to diminish. One of the reasons for this was the increased access to funds in demand accounts that was permitted by Decree No. 214/02 and the subsequent withdrawal of all such funds by depositors in the context of the prevailing lack of confidence in the financial system. The other factor that became increasingly important beginning March 2002, was the increase in the number of successful amparo claims obtained by depositors requiring banks to release deposits.
During March and April 2002, due to the fact that outflows from the financial system were used to purchase foreign currency, the exchange rate began to increase and, as a result, the inflation accelerated too. The government declared, on April 19, 2002, a new banking and foreign-exchange market holiday that lasted until April 29, 2002. During such period, the Minister of Economy resigned and Mr. Roberto Lavagna, was appointed to replace him. In order to restrict fund outflows from the financial system, Law No. 25,587 was passed on April 25, 2002, that required banks to release deposits only when amparo claims had been issued pursuant to final non-appealable judicial decisions. Enforcement of this Law limited bank losses of deposits due to amparo claims, but did not eliminate them.
In an attempt to solve the problem that the "corralito" and "the corralon" represented, Minister Lavagna proposed a voluntary exchange of deposits for government bonds, known as "Canje I." Decree No. 905/02 established a mechanism pursuant to which any holder of restructured deposits and demand deposits, as well as depositors having participated in a prior voluntary exchange established by Decree No. 494/02, were given the option to exchange their deposits for new Argentine government bonds. These were a peso-denominated bond maturing in 2007 (BODEN 2007) and two dollar-denominated bonds, one maturing in 2005 and the other in 2012 (BODEN 2005 and BODEN 2012). The period to exercise the options expired in mid July 2002.
Decree No. 905/02 established that financial institutions would acquire the government bonds to be offered to depositors in cash, obtained by means of advances to be granted to them by the Argentine Central Bank. These advances had to be fully secured by public- and private-sector debt instruments held by financial institutions, in accordance with the provisions of article 15 of Decree No. 905/02 (which established assets included and their order of preference), except in the case of BODEN 2012, which had to be acquired in the first place by delivering 9.0% National Government Bonds maturing 2002 ("Bonos Encaje"). Such advances would have the same terms as the bonds to be subscribed with the funds provided by them.
In addition, Decree No. 905/02 established that non-exchanged restructured deposits would remain under the repayment schedule defined by Resolution No. 6/02 as amended, but would be registered with Caja de Valores S.A. and constitute publicly negotiable certificates known as "CEDROs," listed in self-regulated exchanges of the country. CEDROs could be used for subscription of primary issues of equity and debt securities authorized to be publicly offered by the CNV and authorized to be listed by an exchange and to repay loans granted by the same financial institution where the deposits were held.
Through Decree No. 1836/02 dated September 16, 2002, the government announced a new exchange (known as "Canje II") of deposits for government bonds and the possibility for holders of restructured deposits outstanding as of May 31, 2002 of up to Ps. 7,000 (excluding the CER adjustment), to exchange them for cash. Financial institutions were allowed to extend this possibility to holders of restructured deposits of up to Ps. 10,000 (excluding the CER adjustment). The period to receive cash began in September 23, 2002, and expired on November 21, 2002. This new exchange contemplated different options for holders of CEDROs or depositors that might have participated in the previous exchange implemented by the government. The period to exercise these options, began in September 23, 2002 and expired on May 23, 2003.
Decree No. 1836/02 opened the possibility for financial institutions to acquire the government bonds to be delivered to depositors, in exchange for secured loans and other public sector debt instruments held by financial institutions included in art.15 of Decree No. 905/02, with the preference there established. In addition, Decree No. 1836/02 allowed financial institutions to offer dollar-denominated government bonds maturing in 2006 to depositors having initiated judicial actions pending resolution, to recover their deposits. Acceptance of such bonds is voluntary.
Given the favorable trend shown during the second half of 2002 by the financial system's deposit base, through its Resolution No. 668/02 and effective December 2, 2002, the Ministry of Economy eliminated the restrictions still in force on the amounts that depositors were allowed to withdraw in cash from transactional deposit accounts. These measures meant the lifting of the "corralito."
On March 5, 2003, the Argentine Supreme Court (the "Supreme Court") ruled on the lawsuit of the Province of San Luis against the Argentine government, concerning the claim for the reimbursement, in dollars or in pesos for an amount equivalent to the dollar amount at the free exchange rate, of a pesified dollar-denominated deposit that the Province of San Luis holds at Banco Nacion. In its ruling, the Supreme Court declared art. 2 of Decree No. 214/02 unconstitutional (the article that had pesified the dollar-denominated deposits outstanding in the Argentine financial system) and ordered Banco Nacion to reimburse the Province of San Luis' deposit in dollars or in pesos for an amount equivalent to the dollar amount at the free exchange rate. In its ruling, the Supreme Court established a 60-day term for the parties to convene or determine the manner and the terms of the reimbursement of the deposit. The parties did not reach an agreement within the established period. Resolution of this issue by the Supreme Court is pending as of the date of this annual report.
Continuing with the progressive release of restructured deposits, through Decree No. 739/03 of April 1, 2003, regulated by Argentine Central Bank Communique "A" 3919, the Argentine government allowed holders of such deposits to request from financial institutions and the Argentine government, the reimbursement of their deposits, on conditions that varied depending on the amount of the deposit and its original currency of denomination. In all cases the difference between the nominal amount of the deposit's principal adjusted by the CER (which was reimbursed in cash plus interest by banks) and the equivalent in pesos of the original dollar amount of the deposit at the exchange rate informed by the Argentine Central Bank as of April 1, 2003 (Ps. 2.979 per US$1.00), will be repaid by the Argentine government through the delivery of "National Government Bonds in Dollars Maturing 2013" ("BODEN 2013"). The period to exercise the options contemplated began on April 8 and ended on May 23, 2003. The process to eliminate the "corralon" was completed in August 2003.
COMPENSATION TO FINANCIAL INSTITUTIONS
For Asymmetric Pesification and its Consequences
Mainly through Decrees No. 214/02, No. 320/02, No. 410/02, No. 471/02, No. 704/02, No. 905/02 and No. 992/02 and complementary ones, as amended, and Argentine Central Bank Communiques "A" 3467, 3507, 3561 and 3648 and complementary ones, as amended, a significant portion of financial institutions' assets and liabilities denominated in foreign currency, which formed part of their net asset position in foreign currency were converted into pesos at different exchange rates.
Decree No. 214/02 provided for the compensation, through the issuance by the government of a bond to be delivered to financial institutions, of the losses that financial institutions would otherwise suffer as a result of the conversion of bank assets and liabilities into pesos at different exchange rates and the short foreign currency
positions that would result from such conversion. Decree No. 494/02 provided a methodology for the calculation of the amount of compensation and established that the government objective in providing such compensation was to cause financial institutions' net worth to return to the levels prior to the pesification, by compensating them for:
- the losses caused by the conversion into pesos of a significant portion of their liabilities at the Ps. 1.40 per US$1.00 exchange rate, greater than the Ps. 1.00 per US$1.00 exchange rate established for the conversion into pesos of a significant portion of its dollar-denominated assets. This would be achieved through the issuance and delivery of a peso-denominated compensatory bond maturing in 2007 ("BODEN 2007").
- the currency mismatch generated by the compulsory pesification of certain portions of financial institutions' assets and liabilities. This would be achieved through the conversion of the compensatory bond originally peso-denominated into a dollar-denominated compensatory bond and, if necessary, through the subscription of a dollar-denominated hedge bond. For this, the government established the issuance of a dollar-denominated bond bearing LIBOR and maturing in 2012 ("BODEN 2012").
Among other measures, Decree No. 905/02, replaced the provisions of Decree No. 494/02 in connection with the methodology for calculating the compensation to be received by financial institutions. Decree No. 905/02 established that (i) the compensation to which a financial institution was entitled would be calculated by taking into account the imbalances generated by the government's pesification measures in the balance sheet of such financial institution's head office and branches located in Argentina as of December 31, 2001, only; and (ii) provision of compensation on account of imbalances generated in the balance sheets of such institution's foreign branches and subsidiaries would be limited exclusively to the effects of the pesification of such foreign branches' and subsidiaries' investments in secured loans. Compensation for the pesification of other assets of a bank's foreign branches and subsidiaries and of the assets of local subsidiaries with complementary activities subject to Argentine Law was not contemplated. On October 28, 2002, Decree No. 2167/02 incorporated into the compensation scope those assets and liabilities subject to Argentine Law and recorded in foreign branches and subsidiaries that were pesified by Decree No. 214/02 and complementary ones. The assets of subsidiaries with complementary activity remained excluded.
Argentine Central Bank Communiques "A" 3805 and "A" 3825 regulated Decree No. 2167/02 and established that no later than December 23, 2002, financial institutions had to inform the Argentine Central Bank of the amounts of compensation to which they were entitled under the new rules. The Argentine Central Bank has to confirm the amounts after its review. In the Bank's case, such review by the Argentine Central Bank has not been completed as of the date hereof.
The Bank has the option to purchase the hedge bond using secured loans pursuant to the provisions of Decree No. 2167/02. If the hedge bond is purchased through borrowings from the Argentine Central Bank, pursuant to article 15 of Decree No. 905/02 such borrowings have to be collateralized by the following assets in the following priority: (i) secured loans representing in origin an exposure to the Argentine government, beginning with those with the shorter average life; (ii) secured loans representing in origin an exposure to the provinces, beginning with those with the shorter average life; and (iii) other assets with the public sector at the criteria of the Ministry of Economy and the Argentine Central Bank. If a bank does not have the required assets, it must give as collateral loans to the private sector classified in the first two categories of the Argentine Central Bank loan classification, beginning with mortgage loans, or if necessary such bank's shareholders shall pledge their shares in such bank. The value of the collateral required must be equal to 100.0% of the amount of the borrowings. No assets have been given as collateral by the Bank as of the date of this annual report because the compensation bonds have not been received in full by the Bank yet. In addition, article 17 of Decree No. 905/02 established that such borrowings from the Argentine Central Bank to purchase the hedge bond may be repaid with the assets pledged as collateral thereto at any time following (i) a default by the Argentine government on the new debt issued pursuant to Decree No. 1387/01 (secured loans), and (ii) the date on which the government shall have completed the restructuring of its foreign debt.
Subsequently, Resolution No. 6/04 of the Ministry of Economy, as
regulated by Argentine Central Bank Communiques "A" 4122 and "A" 4130, issued on
March 26 and April 26, 2004, respectively, established certain changes to the
methodology for the calculation of the compensation for asymmetric pesification:
(i) certain transactions such as debts with a bank's foreign head office as of
December 31, 2001 and a bank's borrowings
which FX risk had been hedged by the bank's head office were excluded from the compensation calculation; (ii) the methodology for the compensation corresponding to holdings of foreign-currency-denominated certificates of participation and debt securities issued by financial trusts was established; and (iii) compensation in the case of nonpesified loans for which payments were received between January 15 and March 3, 2002, at exchange rates higher than Ps. 1.4 per U.S. dollar, was reduced.
As of the date of this annual report, the resolution from the Argentine Central Bank regarding the final amount of this compensation to the Bank is pending. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Consolidated Assets."
For Asymmetric Indexation and for Differences Related to Amparo Claims
Financial institutions have requested to the government that they be compensated for the losses generated to them by other economic policy measures or facts such as: (i) the reimbursement of deposits pursuant to amparo claims at the free market exchange rate, which was greater than that established by the government for the conversion into pesos of financial institutions' assets and liabilities; and (ii) the adjustment for inflation of included assets and liabilities by using different coefficients, the CER or the CVS ("asymmetric indexation").
Law No. 25,796, published in the Official Gazette on November 17, 2003, set forth the compensation to financial institutions by the Argentine Government for the negative effects generated on financial institutions' financial condition by asymmetric indexation. To that end, this law allowed the National Government to issue "National Government Bonds Denominated in Pesos at a Variable Rate Maturing in 2013" for up to Ps. 2,800 million. These bonds shall bear the financial system's average interest rate on deposits not subject to any principal adjustment. Law No. 25,796 was regulated by Decree No. 117/2004, published in the Official Gazette on January 26, 2004, which provided for: (i) the compensation's mechanism; (ii) the optional participation in the compensation regime by financial institutions; and (iii) the possibility for financial institutions to opt for a total or partial participation.
As of December 31, 2003, based on the provisions set forth by Law No. 25,796, which did not provide for a partial option, the Bank had recorded, on the basis of a total option, Ps. 102.7 million under "Other Receivables from Financial Brokerage" on account of the estimated compensation amount.
Subsequently, through the issuance of different rules, the Ministry and the Argentine Central Bank further regulated Law No. 25,796, in a way that, in the Bank's opinion, is contrary to the provisions of Law No. 25,796. On May 6, 2004, the Bank presented a letter to the Executive Branch, the Ministry of Economy and the Argentine Central Bank maintaining the claim for compensation that it had made on December 30, 2003. On May 18, 2004, the date of expiration of the period established by such rules for financial institutions to opt for their participation in the compensation regime laid down by such rules, the Bank did not request to participate in such compensation regime and made a new presentation before the Ministry of Economy and the Argentine Central Bank, restating its right to be compensated for the negative effects of asymmetric indexation and formally challenging the new rules. Based on the provisions of Law No. 25,709, as of December 31, 2003, the Bank had recorded Ps. 102.7 million under "Other Receivables Resulting from Financial Intermediation" on account of its right to receive compensation from the government for asymmetric indexation.
With respect to the differences generated by the payments made by the Bank pursuant to amparo claims, the Bank recorded an intangible asset, the amount of which as of December 31, 2003, was Ps. 487.0 million, net of the amortization mandated by the Argentine Central Bank. on account of its right to receive compensation for having had to make payments pursuant to judicial orders for amounts higher than those provided for by the pesification decrees. See " -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Treatment of Losses in Connection with Amparo Claims." As of the date of this annual report, rules for the provision of compensation to financial institutions on account of the differences arising from the reimbursement of dollar-denominated deposits pursuant to amparo claims for amounts higher than those provided for by the pesification decrees are pending, and the government has expressed that it was contrary to the provision of such compensation.
INFLATION ACCOUNTING
The Banks' financial statements have been restated for inflation for periods ended in 2002 and up to February 28, 2003. For a description of the applicable regulations, see "Presentation of Financial Information" at the beginning of this annual report.
ARGENTINE BANKING SYSTEM AND REGULATION
ARGENTINE BANKING SYSTEM
As of December 31, 2003, the Argentine financial system consisted of 96 financial institutions, of which 75 were banks and 21 were financial nonbank institutions (including finance companies, credit unions, savings and loan associations). Of the 75 banks, 15 were Argentine government-owned or related banks. As of December 31, 2003, out of the 60 private-sector banks:
- 31 were private-sector domestically-owned banks (i.e., sociedades anonimas);
- 27 were foreign-owned banks (i.e., local branches or subsidiaries of foreign banks); and
- 2 were cooperative banks (bancos cooperativos limitados), also domestically-owned.
As of that date, the largest private-sector banks, in terms of total deposits, were: BBVA Banco Frances, Banco Rio Santander, Banco Galicia, Citibank, BankBoston and HSBC Bank. Except for the Bank, these were all foreign-owned banks. According to information published by the Argentine Central Bank as of December 31, 2003, private-sector banks accounted for 51.5% of total deposits and approximately 68.2% of total net loans in the Argentine financial system. Argentine financial industry regulations do not raise any entry or exit barriers, nor do they make any differentiation between locally or foreign-owned institutions. Cooperative banks are active principally in consumer banking, with a special emphasis on the lower end of the market. As of December 31, 2003, financial entities (other than banks) accounted for approximately 0.2% of deposits and 0.8% of net loans in the Argentine financial system.
As of December 31, 2003, the largest Argentine government-owned or related banks, in terms of total deposits, were Banco Nacion and Banco de la Provincia de Buenos Aires. Under the provisions of the Financial Institutions' Law, public banks have comparable rights and obligations as private banks, except that public banks handle public revenues and promote regional development and certain public banks have preferential tax treatment. The bylaws of some Argentine government-owned banks provide that the governments that own them (national and provincial) guarantee their commitments. Under current law, Banco de la Provincia de Buenos Aires is not subject to taxes, levies or contributions that the Argentine government may impose. According to information published by the Argentine Central Bank, as of December 31, 2003, government-owned banks and banks in which the Argentine government (national, provincial and municipal) had an ownership interest accounted for 48.2% of deposits and 30.9% of loans in the Argentine financial system.
Consolidation has been a dominant theme in the banking sector since the Convertibility Law was implemented in 1991, with the total number of financial institutions declining from 214 in 1991 to 96 at December 31, 2003, with the ten largest private banks holding 41.9% of the system's deposits as of December 31, 2003. We expect consolidation in the Argentine financial system to continue.
During the decade of the 1990s, foreign banks significantly increased their presence in the Argentine financial system. Since the last quarter of 1996, control of many of the largest Argentine private-sector domestically-owned commercial banks has been transferred to foreign banks, which ended up controlling the largest private sector financial institutions except the Bank. This foreign presence grew both in the universal bank sector and among financial institutions specializing in specific products or markets. Currently, this situation has not changed despite the fact that the number of foreign banks decreased by twelve through December 2003 as compared with the number at the end of 2001. In this period, most foreign banks operating in Argentina have experienced losses in their Argentine operations. It is still unclear at the moment which foreign institutions will remain in the country.
ARGENTINE BANKING REGULATION
The following is a summary of certain matters relating to the Argentine banking system, including provisions of Argentine law and regulations applicable to financial institutions in Argentina. This summary is not intended to constitute a complete analysis of all laws and regulations applicable to financial institutions in Argentina.
General
Since 1977, banking activities in Argentina have been regulated under the Financial Institutions' Law which places the supervision and control of the Argentine banking system in the hands of the Argentine Central Bank, which is an autonomous institution. The Argentine Central Bank has vested the Superintendencia de Entidades Financieras y Cambiarias (Superintendency of Financial and Exchange Institutions, the "Financial Superintendency") with most of the Argentine Central Bank's supervisory powers. In this section, unless the context otherwise requires, references to the Argentine Central Bank shall be understood as references to the Argentine Central Bank acting through the Financial Superintendency. The Financial Institutions' Law provides the Argentine Central Bank with broad access to the accounting systems, books, correspondence, and other documents of banking institutions. The Argentine Central Bank regulates the supply of credit and monitors the liquidity of, and generally supervises the operation of, the Argentine banking system. The Argentine Central Bank enforces the Financial Institutions' Law and grants authorization for banks to operate in Argentina. The Financial Institutions' Law confers numerous powers to the Argentine Central Bank, including the ability to grant and revoke bank licenses, to authorize the establishment of branches outside Argentina, to approve bank mergers, capital increases and certain transfers of stock, to fix minimum capital, liquidity and solvency requirements and lending limits, to grant certain credit facilities to financial institutions in cases of temporary liquidity problems and to promulgate other regulations that further the intent of the Financial Institutions' Law.
Current regulations place the operation of local and foreign owned banks on equal regulatory terms.
The Public Emergency Law sanctioned on February 6, 2002 introduced substantial amendments to the Argentine Central Bank's charter which, among others, released certain restrictions on its ability to act as a lender of last resort, allowed the Argentine Central Bank to make advances to the Argentine government for up to 10.0% of the cash funds obtained during the preceding 12 months (which before could only be effected by purchasing at market prices negotiable securities issued by the National Treasury) and released the restriction whereby up to one third of the freely available international reserves could be composed of government securities considered at market values.
The Financial Institutions Law and the Argentine Central Bank charter were
recently amended by Law No. 25, 780, published in the Official Gazette on
September 8, 2003. The main provisions established by such law are the
following: (1) authorization was given to the Argentine Central Bank to make
temporary loans to the Argentine government for up to 12.0% of the monetary
base, and to make loans for an amount of up to 10.0% of the total annual amount
raised by the Argentine government in cash during the last 12 months, both of
which shall be reimbursed within 12 months from the relevant date of
disbursement. Such temporary loans cannot not exceed 12.0% of the monetary base,
except those destined exclusively to the payment of outstanding obligations to
multilateral agencies; (2) indemnity for Argentine Central Bank officers was
provided for, by stating that the "opportunity, merits or convenience" of
certain of their decisions (mostly related to the liquidation and restructuring
of financial institutions) must be reviewed by the courts only when such
decisions have been clearly made in an unreasonable and arbitrary manner; (3)
authorization was given to the Argentine Central Bank to exclude assets and
liabilities of financial institutions with liquidity and solvency problems and
establish the rules for their valuation, and assign the transfer of excluded
assets and liabilities to other financial entities, or transfer assets to
financial trusts (see " -- Financial Institutions with Economic Difficulties");
(4) amendment in the degree of payment preferences in favor of creditors (see "
-- Priority Rights of Depositors"); and (5) authorization was given to the
Argentine Central Bank to disburse rediscounts to financial institutions with
liquidity or solvency problems, during the term of the Public Emergency Law.
Supervision
As supervisor of the Argentine financial system, the Argentine Central Bank requires financial institutions to submit information on a daily, monthly, quarterly, semiannual and annual basis. These reports that include balance sheets and income statements, information relating to reserve funds, use of deposits, portfolio quality (including details on debtors and any loan-loss provision established) and other pertinent information, allow the Argentine Central Bank to monitor financial institutions' financial condition and business practices.
The Argentine Central Bank carries out formal inspections from time to time of all banking institutions for purposes of monitoring compliance by banks with legal and regulatory requirements. If the Argentine Central Bank rules are breached, it may impose various sanctions depending on the gravity of the violation. These sanctions range from calling attention to the infraction to the imposition of fines or even the revocation of the financial institution's operating license. Moreover, noncompliance with certain rules may result in the obligatory presentation to the Argentine Central Bank of specific adequacy or regularization plans. The Argentine Central Bank must approve these plans in order for the financial institution to remain in business.
Financial institutions have been subject to the supervision of the Argentine Central Bank on a consolidated basis since 1994. The Argentine Central Bank requires financial entities (i) to consolidate their quarterly and annual financial statements with all corporate and financial entities in its economic group; and (ii) to prepare consolidated semiannual financial statements for its economic group, unless the company or financial entity controlling the economic group is required to prepare audited consolidated financial statements in the country in which it is incorporated. Information set out in " -- Limitations on Types of Business," " -- Capital Adequacy Requirements," " -- Lending Limits," and " -- Loan Classification System and Loan Loss Provisions" below, relating to a bank's loan portfolio, are calculated on a consolidated basis. However, regulations relating to a bank's deposits are not based on consolidated information, but on such bank's deposits in Argentina (for example, liquidity requirements and contributions to the deposit insurance system).
Due to the significant impact of the crisis that unfolded in Argentina since December 2001, in 2002 the Argentine Central Bank suspended the requirement of submission of certain information or changed or postponed the filing dates prescribed by the information regime to which financial institutions were subject. In particular, see the " -- Capital Adequacy Requirements" section below.
Financial System's Restructuring Unit ("Unidad de Reestructuracion del Sistema Financiero" or "URSF")
Decree No. 1262/03 of April 1, 2003, created the Financial System's Restructuring Unit, comprised of three members appointed by the Ministry of Economy and three members appointed by the Argentine Central Bank to decide on the strategy to be followed and the measures to be taken in order to restructure the Argentine financial system, including the conditions under which financial institutions will repay the financial assistance granted by the Argentine Central Bank. See " -- Financial Assistance from the Argentine Central Bank -- Financial Assistance for Liquidity Support Granted Before April 1, 2003."
Examination by the Argentine Central Bank
The Argentine Central Bank established the "CAMEL" quality rating system which is based on weighting the creditworthiness, compliance with the Financial Institutions' Law, administrative order and general operating solvency of a financial institution. Each letter of the CAMEL system corresponds to the following areas of the operations of each bank being rated: "C" represents capital, "A" represents assets, "M" represents management, "E" represents earnings, and "L" represents liquidity. Each factor is evaluated and rated on a scale from 1 to 5, 1 being the highest rating an entity can receive. By combining the individual factors that are under evaluation, a combined index can be obtained that represents the final rating for the financial institution.
The Argentine Central Bank begun to rate each Argentine financial institution based on the results of a periodic examination conducted by the Financial Superintendency, in accordance with the CAMEL system, in October 1994. The last examination of Banco Galicia was based on information as of September 30, 2000 and the rating obtained, informed to the Bank on October 15, 2001 was the highest among financial institutions, as had occurred in the previous years.
On October 6, 2003, the Argentine Central Bank issued Communique "A" 4027 requiring financial institutions to provide information regarding their business plan and their projections. This information had to be filed with the Argentine Central Bank on or prior to October 31, 2003, and the Argentine Central Bank has required updates.
BASIC System
The Argentine Central Bank established a control system ("BASIC") which requires all financial entities to comply with a set of procedures concerning the operations of such financial entities with the purpose of allowing the public access to a greater level of information and safety with respect to their holdings in the Argentine financial system. Each letter of the BASIC system corresponds to one of the following procedures:
- B ("Bonos" or Bonds). On an annual basis, all financial institutions in Argentina were required to engage in certain debt issuing transactions in order to expose them to scrutiny and analysis by third parties with high standards. The Bank was always in compliance with this requirement, which was repealed through Argentine Central Bank Communique "A" 3498, effective March 1, 2002.
- A ("Auditoria" or Audit). The Argentine Central Bank requires a set
of audit procedures that include: (a) the creation of a registry of
auditors; (b) the implementation of strict accounting procedures to be
complied with by auditors; (c) the payment of a performance guarantee
by those auditors to induce their compliance with the procedures, and
(d) the creation of a department within the Argentine Central Bank
liable for verifying that the procedures are followed. The purpose of
this requirement is to assure accurate disclosures by the financial
institutions to both the Financial Superintendency and the public.
- S ("Supervision" or Supervision). The Argentine Central Bank has the right to inspect financial institutions from time to time.
- I ("Informacion" or Information). Financial institutions are required to file on a monthly basis certain daily, weekly, monthly and quarterly statistical information.
- C ("Calificacion" or Rating). The Argentine Central Bank established a system requiring periodic credit evaluation by internationally recognized rating agencies, which was suspended by Communique "A" 3601 in May 2002.
Legal Reserve
The Argentine Central Bank requires that each year banks allocate to a legal reserve a percentage of net income set by the Argentine Central Bank, which is currently 20.0%. Such reserve can only be used during periods in which a bank has incurred losses and has exhausted all allowances and other provisions. Dividends may not be paid if the legal reserve has been impaired.
Limitations on Types of Business
As provided by the Financial Institutions' Law, commercial banks are authorized to conduct all activities and operations that are not specifically prohibited by law or by regulations of the Argentine Central Bank. Some of the activities which are permitted include the ability to make and receive loans; to receive deposits from the public in both local and foreign currency; to guarantee customers' debts; to acquire, place or negotiate stock or debt securities in the Argentine OTC Market, subject to the approval of the CNV; to conduct transactions in foreign currency; to act as fiduciary; and to issue credit cards.
Banks are not permitted to own commercial, industrial, agricultural and other types of businesses, except with prior authorization from the Argentine Central Bank. Under Argentine Central Bank regulations, the aggregate amount of equity investments of a commercial bank (including participations in domestic mutual funds called fondos comunes de inversion) may not exceed 50.0% of such bank's Adjusted Shareholders' Equity or Computable Regulatory Capital (as defined below). In addition, investments in:
- unlisted equity shares excluding (a) stock of companies which provide services complementary to the services offered by the bank, and (b) certain stock participations which are necessary in order to obtain the rendering of public services, if any,
- listed stock and participations in mutual funds which are not included in order to determine the capital requirements related to market risk; and
- listed stock that does not have a "largely publicly available" market price (when daily quotes of relevant transactions are available, which quotes would not be significantly affected by the disposition of the bank's holdings of such stock)
may not exceed, in the aggregate, 15.0% of a bank's Adjusted Shareholders' Equity.
"Adjusted Shareholders' Equity" or "Computable Regulatory Capital" is defined under the Argentine Central Bank's regulations as the so-called (a) "basic" shareholders' equity or "core capital," which includes capital stock, capital adjustments, reserves, uncapitalized irrevocable capital contributions, audited retained earnings and, pursuant to the consolidated supervision regime, third party holdings; plus (b) the so-called "complementary" shareholders' equity which includes certain subordinated debt securities, a portion of the allowances required by the Argentine Central Bank in respect of loans classified Normal and Normal Performance (as such terms are defined in " -- Selected Statistical Information -- Argentine Central Bank's Loan Classification and Loan Loss Provisions") plus certain unaudited net income and less certain items such as permanent investments in other financial institutions, capital assigned to offshore branches, certain intangible assets and nonpaid capital.
Nevertheless, for purposes of calculating the limits described both above and in " -- Lending Limits," it is not necessary to deduct the capital assigned to offshore branches from a bank's shareholders' equity.
Under Argentine Central Bank regulations, financial institutions are typically precluded from engaging directly in insurance activities and from holding an equity interest in excess of 12.5% of the outstanding capital of a company that does not provide services complementary to those provided by financial institutions or which exceeds specified percentages of the respective financial institution's Adjusted Shareholders' Equity as described above. The Argentine Central Bank determines which services are complementary to the services provided by financial institutions.
Through Communique "A" 3918 the Argentine Central Bank established that beginning on April 1, 2003 and until December 31, 2003, financial institutions will be allowed to receive in payment of credits granted shares or equity participations in the capital of a company that engages in activities other than complementary activities, not exceeding 20.0% of the capital stock or of voting rights, subject to certain conditions.
Treatment of Losses in Connection with Amparo Claims
Through Communique "A" 3916 dated April 3, 2003, the Argentine Central Bank provided for the recording of an intangible asset on account of the difference between the amount paid by financial institutions pursuant to legal actions and the amount resulting from the conversion into pesos of the balance of the U.S. dollar deposits reimbursed, at the exchange rate of Ps. 1.40 per US$1 (adjusted by the CER plus interests accrued up to the payment date). In addition, it established that the corresponding amount shall be amortized in 60 monthly equal and consecutive installments as from April 2003. As of December 31, 2003, the Bank had recorded an intangible asset of Ps. 487.0 million and amortizations amounted to Ps. 77.9 million during 2003.
The Bank has reserved its right to file any legal actions, at suitable times, in view of the negative effect caused on its financial condition by the reimbursement of originally dollar-denominated deposits, pursuant to legal orders or final judgments, either in dollars or in pesos for the equivalent amount at the market exchange rate, since compensation of this effect was not included into the calculation of the compensation to financial institutions. The method of recording a deferred loss set forth by the Argentine Central Bank in the above-mentioned Communique does not affect the legitimacy of such rights.
Legal Reserve Requirements
After the crisis of early 1995 (known as the "Tequila crisis") a system of "minimum liquidity requirements" was created in substitution of the prior minimum cash reserve requirements' system. In order to meet the minimum liquidity requirements, a percentage of a bank's liabilities, depending on the type of account, and on the remaining maturity of the liability had to be invested in certain specific instruments, so that financial institutions
could obtain a return on the reserves. Compliance with the minimum liquidity requirements was determined in average for monthly periods. However, the Argentine Central Bank modifies from time to time this practice depending on monetary policy considerations.
Effective June 1, 2001, Argentine Central Bank Communique "A" 3274 changed the regulations for bank reserve requirements: (i) minimum liquidity requirements remained in effect only for liabilities with a fixed maturity, for which banks continued, as previously required, to apply a sliding scale of minimum percentage liquidity requirements that decreased as the remaining maturity of the liability increased. These percentages were set at 22.0% for remaining maturities of up to 89 days, 15.0% for up to 179 days, 10.0% for up to 364 days, and 0.0% for more than one year; and (ii) "minimum cash requirements" were established for demand deposits (savings accounts, current accounts, and other demand-deposit accounts) at 15.5%. The assets eligible for compliance with this requirement were cash held in bank vaults and balances held at the Argentine Central Bank. Through its Communique "A" 3311, the Argentine Central Bank reduced the minimum liquidity requirements for the July-August 2001 period, and allowed the inclusion of cash being transported and cash held in custody with armored-car companies as eligible for compliance with minimum cash requirements.
Beginning June 1, 2001, bank accounts at the Argentine Central Bank began to be remunerated. Reverse repurchase agreements with the Argentine Central Bank ceased to be eligible to comply with the minimum liquidity requirements. The minimum liquidity requirements and the minimum cash requirements and banks' compliance with the level required continued to be determined in average for monthly periods.
Due to the systemic liquidity shortage resulting from deposit outflows, which accelerated during the last quarter of 2001, in December of that year, the Argentine Central Bank established temporary emergency reserve requirements.
Effective March 1, 2002, Communique "A" 3498, of the Argentine Central Bank eliminated the minimum liquidity requirements and modified the regulations addressing minimum cash requirements. Compliance with the minimum cash requirements must be accomplished, in the same currency as the liability that originates the requirement, with cash in bank vaults, the balances of banks' current accounts at the Argentine Central Bank and the balances of the special escrow accounts held by banks at the Argentine Central Bank in favor of clearing houses.
Communique "A" 3598 created the "minimum placement requirements," effective May 1, 2002, applicable only to peso demand deposits (deposits in savings accounts and current accounts). Communique "A" 3732 of September 13, 2002, extended this requirement to time deposits in pesos constituted with funds from the "corralito."
The minimum cash requirements outstanding as of December 31, 2002, were 14.0% for time deposits and 22.0% for demand deposits. Regulations allowed the "Special Funds former Almafuerte and Mendoza Banks" to be considered as a lower requirement in accordance with Argentine Central Bank Resolution No. 36/03. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Consolidated Assets." The assets computable for compliance with this requirement are the technical cash, which comprises notes and currencies in banks' vaults and the balances of the peso- and dollar-denominated accounts and of the escrow accounts in favor of the clearing houses held by banks at the Argentine Central Bank.
As of December 31, 2002, the minimum fund placement requirements were 12.0% for time deposits in pesos and 18.0% for demand deposits in pesos. Certain assets were eligible to comply with this requirement: (i) credits acquired from or debt securities or participation certificates issued by financial trusts or other sums of money applied to those ends obtained in transactions formalized or to be formalized as from November 26, 1998, related to the restructuring of financial institutions under the framework of article 35bis of the Financial Institutions Law, including possible unpaid balances of participation certificates or debt securities of such trusts, subscribed before January 31, 2001, (ii) Lebac in pesos adjustable by the CER and (iii) holdings of "National Government Bonds at 9.0% Maturing in 2002." On this respect, the Argentine Central Bank established a schedule that exhausted the amounts computable in July 2003. In case a bank did not have the necessary assets, the "minimum fund placement requirements" turned into greater "minimum cash requirements."
On March 21, 2003, Communique "A" 3905 distinguished the minimum cash requirements applicable to time deposits by their remaining maturity and incorporated restructured deposits to the calculation base, applying to
such deposits the same scale of requirements, based on remaining maturity, than to time deposits. The percentage requirements established ranged from 12.0% for time deposits maturing in up to 29 days, to 4.0% for deposits maturing in up to 365 days, and 0.0% for deposits maturing after 365 days.
During 2003, in several occasions, the Argentine Central Bank reduced the minimum cash requirements and minimum fund placement requirements applicable.
Through Communique "A" 4032, dated October 10, 2003, the Argentine Central Bank increased the percentages of minimum cash requirements effective November 1, 2003. In addition, through such Communique, it discontinued, effective November 1, 2003, the minimum fund placement requirements.
Through its Communique "A" 4051, dated November 27, 2003, as amended by Communique "A" 4140, dated May 14, 2004, the Argentine Central Bank reduced the percentages of minimum cash requirements applicable to demand-deposit accounts (mainly current accounts and savings accounts ), from 23% to 20%.
On May 28, 2004, Communique "A" 4147 established several changes, as follows:
- Effective June 1, 2004, the percentage of minimum cash requirements applicable to peso-denominated current accounts and saving accounts, other peso-denominated demand-deposit accounts was reduced from 20% to 18%. The percentage applicable to dollar-denominated current accounts was reduced to 18% and for dollar-denominated saving accounts and other dollar-denominated demand-deposits it was reduced to 20%;
- Effective August 1, 2004: the percentages applicable to dollar-denominated saving accounts and other dollar-denominated demand-deposits, except current accounts, will increase from 20% to 30%; and those applicable to minimum demand-deposits by mutual funds required by regulatory requirements, will increase from 80% to 100%;
- Effective on the same date, the percentages applicable to dollar-denominated time deposits, restructured deposits, acceptances, swaps, negotiable obligations (issued after January 1, 2002) and other liabilities with a fixed maturity, will be based on their remaining maturity, as follows:
Less than 29 Days: from 18.0% to 35% From 30 Days to 59 Days: from 14.0% to 28% From 60 Days to 89 Days: from 10.0% to 20% From 90 Days to 179 Days: from 5.0% to 10.0% From 180 Days to 365 Days: from 3.0% to 6.0% |
Beginning on August 1, 2004, the applicable requirement for any type of deposit by mutual funds, excluding those demand-deposits mentioned in (ii), will be 25% for peso-denominated deposits and 40% for dollar-denominated deposits.
The Bank was in compliance with the legal reserve requirements as of December 31, 2003.
Capital Adequacy Requirements
Due to the deep changes made during 2002 to the financial system's operations, which significantly affected the variables to determine the minimum capital requirements, through its Communiques "A" 3599 and "A" 3604 dated May 3 and 9, 2002, respectively, the Argentine Central Bank suspended the submission of this information by financial institutions.
Until December 31, 2001, Argentine banks had to comply with the minimum capital requirements established by the Argentine Central Bank, which were based on the methodology of the Basel Committee on Banking Supervision of the Bank for International Settlements. Banks had to comply with capital requirements both on an unconsolidated basis and on a consolidated basis with its significant subsidiaries. Until December 31, 2001,
the Bank had complied in excess with the minimum capital requirements. See " -- Selected Statistical Information -- Regulatory Capital."
Through its Communique "A" 3959 dated June 2, 2003, the Argentine Central Bank established a new minimum capital requirements regime for financial institutions.
The new regime's main features are:
- an 8.0% requirement on risk-weighted assets, consistent with the international standard set forth by the Basel Committee;
- equal percentage requirements for financial institutions' exposures to private and public sectors' assets;
- the requirement of increasing capital as a function of loans' interest rates was discontinued;
- an additional requirement was established to cover the risk inherent to mismatches between the rate of inflation and market interest rates;
- the determination of the capital requirements to cover market and interest-rate risks, shall incorporate the dollar as well as the adjustments by the CER and the CVS;
- the increase or decrease of the capital requirement depending on the rating granted to each institution by the Superintendency of Financial and Foreign Exchange Institutions was discontinued;
- risk weightings will be adjusted to take into account, among others, the changes introduced in late March 2003 regarding the treatment of public-sector assets.
Through Communique "A" 3959, the Argentine Central Bank required minimum capital information to be presented on a monthly basis for periods after May 1, 2003, but did not specify a date of effectiveness for the minimum capital requirement. On July 25, 2003, Argentine Central Bank Communique "A" 3986 made certain modifications and clarifications to the new rule on minimum capital requirements introduced by Communique "A" 3959, established that the new minimum capital requirements will become effective in January 2004, and maintained the obligation for financial institutions to comply with the associated information regime.
Communique "A" 3986 established that, beginning in January 2004, two coefficients known as "Alfa 1" and "Alfa 2" will be applied, in order to temporarily reduce the minimum capital requirement to cover credit risk and the minimum capital requirement to cover interest-rate risk, respectively.
"Alfa 1" will be applied exclusively to government securities held in investment accounts; loans granted to the nonfinancial public sector until May 31, 2003; government securities received by financial institutions as compensation for the effects of the "asymmetric pesification" (articles 28 and 29 of Decree No. 905/02); and debt instruments issued by the Fiduciary Fund for Provincial Development (Decree No. 1579/02). For the year 2004, the first period for applying this coefficient, "Alfa 1" was established in 0.05 and its value will increase progressively to reach 1 on January 2009.
The initial value of "Alfa 2" will be 0.20 for the year 2004. The value of this coefficient will increase progressively to reach 1 in January 2007.
Lending Limits
The aggregate amount of equity participation and credit, including guarantees granted, a bank can grant to any credit customer at any time is based on the bank's Adjusted Shareholders' Equity on the last day of the immediately preceding month and on the customer's net worth.
According to Argentine Central Bank rules, a commercial bank may not lend or otherwise extend credit to (referred to herein as "financial assistance") or participate in the capital stock of a single unrelated customer (together with its affiliates) in amounts in excess of 15.0% of the bank's Adjusted Shareholders' Equity or 100.0% of such customer's net worth. However, a bank may grant additional financial assistance to such customer up to an amount equal to 10.0% of the bank's Adjusted Shareholders' Equity if such additional financial assistance is secured with certain liquid assets, including public or private debt securities.
Under Argentine Central Bank regulations, the aggregate amount of investments of a commercial bank in the stock of third parties, including participation in certain mutual funds authorized pursuant to Argentine Central Bank regulations, may not exceed 50.0% of such bank's Adjusted Shareholders' Equity, with the aggregate amount of such investments on the assets described below being limited to 15.0% of such Adjusted Shareholders' Equity. Such assets are:
- unlisted stock, excluding (a) stock of companies which provide
services complementary to the services offered by the bank and
(b) any stock participation which is necessary in order to obtain
the rendering of public services;
- listed stock and participations in mutual funds which are not taken into account in order to determine the market risk related capital requirements referred to below; and
- listed stock which does not have a "largely publicly available" Market price. Under the regulations, a stock's market price is considered to be "largely publicly available" when daily quotes of relevant transactions are available, which quotes would not be significantly affected by the disposition of the bank's holdings of such stock.
In addition, an equity investment of a commercial bank in another company that does not provide services complementary to the services provided by the commercial bank may not exceed 12.5% of such company's net worth.
Total financial assistance that a commercial bank may grant to any particular borrower and its affiliates are also limited based on the borrower's net worth. Total financial assistance to any one borrower and its affiliates may not exceed, in general, 100.0% of such borrower's net worth, but such limit may be increased to 300.0% of the borrower's net worth if such amount does not exceed 2.5% of the bank's Adjusted Shareholders' Equity. Communique "A" 4060, dated December 22, 2003, allowed financial institutions to grant new loans exceeding 300% of the borrower's net worth, but not exceeding 2.5% of the bank's Adjusted Shareholders' Equity, considering each client debt, and 15% considering total debt of clients in the same situation. This authorization will expire on June 30, 2005.
The Argentine Central Bank regulates loans to a bank's "related parties," defined as a bank's affiliates and related individuals. For purposes of these lending limits, "affiliate" means any entity over which a bank, directly or indirectly, has control, is controlled by, or is under common control with, or any entity over which a bank has, directly or indirectly, significant influence with respect to such entity's corporate decisions. "Related individuals" means a bank's directors, senior management, syndics and such persons' direct relatives.
The Argentine Central Bank limits the amount banks can lend to their related parties depending on the rating granted to each bank by the Financial Superintendency. Banks rated 4 or 5 are forbidden to lend to their related parties. Banks ranked between 1 and 3 cannot extend financial assistance to their related parties in an amount which exceeds, together with any equity participation held by the bank in its affiliates, 5.0% of such bank's Adjusted Shareholders' Equity. However, a bank may grant additional financial assistance to such related parties up to an amount equal to 10.0% of such bank's Adjusted Shareholders' Equity: (i) if the affiliate provides complementary services (defined as services in connection with stock brokerage, issuance of credit or debit or similar cards, financial intermediation in leasing and factoring transactions) (ii) in the case of temporary acquisition of shareholdings in companies to facilitate their development in order to sell such holdings afterwards, (iii) if the affiliate is a local financial institution rated other than 1 or 2 by the Argentine Central Bank, or (iv) if such additional financial assistance is secured with certain liquid assets, including public or private debt securities. If the affiliate is a financial institution rated 1, the amount of financial assistance can reach 100.0% of a bank's Adjusted Shareholders' Equity. If the receiving affiliate financial institution is rated 2, the amount of financial assistance can
reach 10.0% without limitations and an additional 90.0% should the term for the loans and other credit facilities not exceed 180 days.
In addition, the aggregate amount of a bank's equity participation in, and nonexempt financial assistance to, its related parties may not exceed 20.0% of such bank's Adjusted Shareholders' Equity.
In addition, with respect to related persons who are individuals, the total amount of loans to those related persons cannot exceed Ps. 50,000, which must be used exclusively for personal or family purposes. Failure to properly observe these requirements can result in an increase of the minimum capital requirements for credit risk in an amount equal to 100.0% of the daily excess amounts over the requirements beginning on the month when the excess amounts appear and continuing while the excess amounts remain.
Notwithstanding the limitations described above, the aggregate amount of nonexempt financial assistance (including equity participations) independently of whether customers qualify as related parties or not of a bank as to which such assistance and participation exceeds 10.0% of such bank's Adjusted Shareholders' Equity, may not exceed three times the bank's Adjusted Shareholders' Equity excluding financial assistance to domestic financial institutions, or five times the bank's Adjusted Shareholders' Equity including financial assistance to domestic financial institutions.
The Bank has complied with such rules. On February 11, 2002, through its Resolution No. 81/02, the board of directors of the Argentine Central Bank prohibited the Bank from granting any further financing to related parties.
Communique "A" 3911 issued on March 28, 2003, established limits to a financial institution's new exposure to the Argentine public sector applicable granted after April 1, 2003. These limits exclude the stock exposure outstanding as of March 31, 2003, and government securities received as compensation in accordance with Decree No. 905/02 or those to be received pursuant to other regulations. Beginning April 1, 2003, new financial assistance to the Argentine public sector must be within the limits established as follows: (i) aggregate exposure to national public sector debt instruments (including financial assistance to other public sector jurisdictions secured by the federal tax collection shared with such jurisdictions) cannot exceed 50.0% of a bank's regulatory capital or Adjusted Shareholders' Equity, (ii) aggregate exposure to each provincial jurisdiction and the City of Buenos Aires (including financial assistance to municipal jurisdictions secured by the federal tax collection shared with such jurisdictions but excluding those included in the previous item) may not exceed 10.0% of a bank's Adjusted Shareholders' Equity and shall be secured by local tax collection revenues or by a pledge or be instrumented as a leasing transaction, and (iii) aggregate exposure to each municipal jurisdiction may not exceed 3.0% of a bank's Adjusted Shareholders' Equity and must be secured in the same manner. Total exposure to municipal jurisdictions shall not exceed 15.0% of a bank's Adjusted Shareholders' Equity and the total exposure to the public sector, described in items (i), (ii) and (iii), above, must not exceed 75.0%. In addition, beginning January 1, 2006, the average financial assistance to all the public sector must not exceed 40.0% of a bank's total assets as of the end of the previous month. Any excess over this limit will determine an equal increase in the minimum capital requirement.
Loan Classification System and Loan Loss Provisions
In 1994, the Argentine Central Bank introduced the current loan classification system and corresponding minimum loan loss provision requirements applicable to loans and other types of credit (together, referred to as "loans" in this section) of private sector borrowers.
The current loan classification system is a bifurcated system, applying certain criteria to classify loans in a bank's "consumer" portfolio, and another set of criteria to classify loans in its "commercial" portfolio. The loan classification criteria applied to loans in the consumer portfolio are based on delinquency aging, while the principal criterion of classification of loans in the commercial portfolio is each borrower's ability to pay, as measured mainly by such borrower's future cash flow. In the loan classification system, all customers in an economic group are considered as one borrower. If a customer has both commercial and consumer loans, consumer loans will be added to commercial loans to determine eligibility for classification in the consumer portfolio. Loans backed with preferred guarantees will be considered at 50.0% of their face value.
Until December 31, 2002, banks could opt to apply the consumer loan classification criteria to commercial loans of up to Ps. 200,000. Through Communique "A" 3918, issued on April 4, 2003, the Argentine Central Bank established that between March 31, 2003 and December 31, 2003, customers with debt in the whole financial system of up to Ps. 5.0 million will be classified in the same manner as consumer loans, that is, they will be automatically classified according to the number of days the debt is past due. For the classification, one day past due will be computed for each 3 days elapsed in the period from December 1, 2001 to March 31, 2003. This treatment will also be provided to the portfolio of commercial loans of up to Ps. 200,000, which under the previous rules were already automatically classified. The aggregate amount of net reversal of allowances outstanding as of February 28, 2003, if corresponding, must be reflected in a specific liability account the balance of which shall be used for the establishment of new allowances beginning in April 2004.
For a description of the Argentine Central Bank's loan classification system and the Argentine Central Bank's minimum loan provision requirements, see " -- Selected Statistical Information -- Argentine Central Bank's Loan Classification and Loan Loss Provisions."
Valuation of Public Sector Assets
For a description of the rules governing the valuation of government securities, see " -- Selected Statistical Information -- Government and Corporate Securities."
In November 2001, the government offered a swap of public-sector debt instruments for secured loans to the Argentine government (Decree No. 1387/01). As of December 2001, only the swap of Argentine government debt instruments was completed. Beginning in November 2001, the Bank recorded the secured loans to the national government and those loans to the provinces tendered in the swap in accordance with the terms and conditions of the new secured loans. This swap reduced the yields of public-sector debt instruments and extended their maturity but did not modify their currency of denomination.
The rules issued in 2002 compulsorily pesified the Argentine government secured loans and modified their other terms and conditions (maturity, interest rate and principal adjustment). Decree No. 471/02 established that all secured loans outstanding as of February 3, 2002 had to be pesified at the Ps. 1.40 per US$1.00 exchange rate, with their principal adjusted by the CER and fixed annual interest rates ranging from 3.0% to 5.5% depending on their term. For secured loans representing in origin an exposure to the provinces, Decree No. 1579/02 dated August 28, 2002, introduced an additional restructuring through the offering of a new swap for secured notes (BOGAR) or loans issued by the FFDP maturing in 16 years, principal adjusted by the CER and a fixed 2.0% annual interest rate. The new swap included loans to the FFDP, excluded from the first swap, and recognized the loans to the provinces originally tendered in the first swap. The swap was completed in early 2004. The Bank records provincial secured loans in accordance with the terms and conditions established by Decree No. 1579/02 since November 2002.
Through its Communique "A" 3911, the Argentine Central Bank established a new method for the valuation of secured loans, government securities not subject to capital requirements to cover market risk, promissory notes issued by the FFDP and other loans to the nonfinancial public sector, excluding among others, government securities recorded in investment accounts, compensatory and hedge bonds and Lebac, short-term Argentine Central Bank notes.
Beginning with the financial statements for March 2003, included assets began to be valued at the lower between their face and present values. To determine present values, the Argentine Central Bank established a discount rate that increases gradually over time. Its initial value was 3.0% per annum, applicable during 2003 and until December 2003, inclusively. Thereafter the discount rate increases by 0.25% semiannually until 2005. In 2006 it will be 5.0% and in 2007 the discount rate will be 5% plus a function of the market yield of national-government securities. Beginning in 2008 the applicable discount rate will be the average market yield of national-government securities. The face value is the balance of each instrument adjusted according to its contractual terms. The difference between the lower of present and face values, and the book value has to be reflected in an asset regularizing account, for a positive difference, or be charged to income, for a negative one.
Subsequently, Argentine Central Bank Communique "A" 4084, dated January 30, 2004, modified the public-sector assets valuation rules established by Communique "A" 3911, as follows:
- Public-sector assets granted as collateral of advances from the Argentine Central Bank to purchase BODEN (both for clients and held by banks) contemplated by articles 10, 11 and 12 of Decree No. 905/02 were excluded from the valuation rules for public-sector assets established by Communique "A" 3911 (valuation at present value resulting from a discount rate established by this Communique). Those assets can be recorded at the value determined by the Argentine Central Bank for their use as collateral.
- Cash flow of provincial secured loans created by Decree No. 1579/02 (BOGAR) must be used to calculate the present value of past-due and unpaid public-sector assets.
Finally, this Communique provided for the reversal of the interest accrued on past-due government assets after December 31, 2001, if corresponding.
Financial Assistance from the Argentine Central Bank
Financial Assistance Granted for Liquidity Support Beginning March 10, 2003
Communique "A" 3901, issued on March 19, 2003, established an automatic mechanism to regulate the provision by the Argentine Central Bank to financial institutions of assistance for liquidity support. This mechanism does not apply to the financial assistance granted for such reasons during the 2001/2002 crisis.
Financial Assistance for Liquidity Support Granted Before April 1, 2003
Through Decree No. 739/03, the Argentine government established a voluntary procedure for the restructuring of the financial assistance granted by the Argentine Central Bank to financial institutions during the crisis that affected the financial system since 2001. The basic purpose was to harmonize the cash flows of those financial institutions that are simultaneously debtors (for having received financial assistance from the Argentine Central Bank) and creditors (for their holdings of debt instruments) of the public sector.
Art. 9 of this Decree established that balances due must be amortized in pesos, in the same number of installments as those of the assets granted as guarantees of the financial assistance received, without exceeding 70 monthly installments. Argentine Central Bank Communique "A" 3941 established a minimum cumulative amortization schedule and a monthly repayment of not less than 0.90% of the adjusted balance. Mandatory accelerated repayment is contemplated when the interest rate earned by the assets granted as guarantees exceeds 3.5% per annum. In addition, voluntary prepayment is available.
Decree No. 739/03 also established that financial assistance subject to this repayment system shall be guaranteed by the Argentine government secured loans issued under Decree No. 1646/01 and, in the absence of the latter, Secured Notes issued under the provisions of Decree No. 1579/02 or bonds issued under the provisions of Decree Nos. 905/02, 1836/02 and 739/03. Pursuant to Argentine Central Bank Communique "A" 3941, all instruments to be delivered as security must be adjustable by the variation of the CER. These securities are to be maintained with no decrease until restructuring of the government's foreign debt is concluded under Decree No. 1387/01 or December 31, 2004, whichever occurs first (except for prepayments, in which case the securities are to be returned on a pro rata basis in the inverse order of their granting).
Argentine Central Bank Communique "A" 3941 established that all amortization installments and interest payments shall be automatically withdrawn from the accounts the financial institution holds with the Argentine Central Bank.
In accordance with Argentine Central Bank Communique "A" 3940, for a bank to be eligible to restructure the financial assistance for liquidity reasons provided to it by the Argentine Central Bank, under the terms established by Decrees No. 739/03 and No. 1262/03, such bank was required to have received the approval of the Argentine Central Bank to the terms and conditions for the restructuring of their foreign debt before December 5, 2003.
Decree No. 1262/03 provided that the Argentine Central Bank shall modify the above mentioned repayment conditions, when the URSF establishes so, subject to the following conditions: (i) the average life of the assets
granted as guarantees of the financial assistance received exceeds 70 months and
(ii) the financial institution falls under the provisions of articles 34 and
35bis of the Financial Institutions Law and has adopted a reorganization plan
approved by the URSF. In this case, repayment will occur in the same number of
installments as that of the assets granted as guarantees of the financial
assistance received with a maximum number of 120 monthly installments and a
monthly amortization of not less than 0.4%. Also, upon the occurrence of an
event of default, the URSF has the right to accelerate the maturity of such
financial assistance.
On November 28, 2003, the URSF informed the Bank that through Resolution No. 1 dated November 27, 2003, it had authorized the Argentine Central Bank to extend the maturity of the Banks' debt for liquidity support with said entity, within the regime established by Decree No. 739/03, pursuant to the repayment schedule submitted by the Bank to the Argentine Central Bank and under the terms provided for by Decree No. 1262/03.
By means of a note dated February 3, 2004, the Argentine Central Bank informed the Bank that it had approved the Bank's request to adhere to the regime of repayment of the debt owed to said entity for liquidity support established by Decree No. 739/03 and extended through Decree No. 1262/03. Through the same note the Argentine Central Bank informed the Bank that it had also authorized such debt's amortization schedule submitted by the Bank, which is the result of the minimum amortization defined by the applicable regulations and of the cash flows of the assets eligible as collateral pursuant to such regulations. Consequently, this schedule comprises the debt repayment in 92 monthly installments as from March 2004, inclusively.
Foreign Currency Position
Through Communique "A" 3889, the Argentine Central Bank limited financial institutions' foreign currency exposure based on such institution's "Global Foreign Currency Net Position" (assets and liabilities from financial brokerage and securities denominated in foreign currencies). Beginning May 1, 2003, the absolute value of the "Global Foreign Currency Net Position" must not exceed 30.0% of a bank's computable capital or Adjusted Shareholders' Equity as of the end of the previous month. In the case of short positions, the limit was set at the lower of 30.0% of computable capital or liquid shareholders' equity. For those financial institutions that expected not to be able to comply with such limits, a period for the presentation of a compliance plan was provided that expired May 15, 2003. On that date, the Bank notified the Argentine Central Bank of an excess in its global foreign currency position and proposed a compliance plan, a response with respect to which is pending.
Through Communique "A" 4135, issued on May 5, 2004, the Argentine Central Bank established an additional limit to be observed by financial institutions. Beginning on July 1, 2004, balances of demand accounts, assets and liabilities included in this regime which are usually traded in institutional markets with a significant volume of transactions or which become due within 180 days, will not be able to exceed a percentage to be determined. In order to calculate this position, they should be considered only those securities recorded at their market value, but not excluding those payments that become due within 180 days.
Deposit Insurance System
Argentine Law No. 24,485 and Decree No. 540, as amended by Decree No. 1292/96 and Decree No. 1127/98, created a deposit insurance system for bank deposits and delegated to the Argentine Central Bank the organization and start-up of the deposit insurance system. The deposit insurance system has been implemented through the creation of a fund named Fondo de Garantia de los Depositos ("FGD") which is administered by Sedesa. The shareholders of Sedesa are the Argentine government through the Argentine Central Bank, which holds at least one share, and a trust constituted by the financial institutions authorized by the Argentine Central Bank which wish to participate in the fund. The Argentine Central Bank establishes the extent of participation by each institution proportionally to the resources contributed by each such institution to the FGD (Communique "A" 2337).
The deposit insurance system that became effective covered all peso and foreign currency deposits held in demand deposit accounts, savings accounts and time deposits with a maturity of less than 90 days are insured for an amount up to Ps. 10,000 and all time deposits with a maturity of 90 days or longer are insured for up to Ps. 20,000. In November 1998, the amount of insurance for such deposits was raised to Ps. 30,000 for all deposits and made uniform without distinction of maturity dates. Deposits made after July 1, 1995 with an interest rate 200 basis points
above the interest rate quoted by Banco de la Nacion Argentina for deposits with equivalent maturities are not covered by this system. This guarantee shall be made effective within 30 days from the revocation of the license of a financial institution, subject to the outcome of the exercise by depositors of their priority rights described under " -- Priority Rights of Depositors" below.
The Argentine Central Bank may modify, at any time, and with general scope, the sum of the mandatory deposit guarantee insurance according to the consolidation of the financial system and any other elements that it may deem appropriate.
Decree No. 1292/96, enhanced Sedesa's functions to allow it to provide equity capital or make loans to Argentine financial entities experiencing difficulties and to institutions which buy such Argentine financial entities or buy the deposits of such Argentine financial entities. As a result of such decree, Sedesa has the flexibility to intervene in the restructuring of a financial entity experiencing difficulties prior to bankruptcy.
Priority Rights of Depositors
According to section 49 e) of the Financial Institutions Law, as
amended by Law No. 25,780 dated September 8, 2003, in case of judicial
liquidation or bankruptcy of a financial entity, the holders of deposits in
pesos and foreign currency benefit from a general priority right to obtain
repayment of their deposits up to the amount set forth below, with priority rank
over all other creditors, with the exception of the following: (i) credits
secured by mortgage or pledge, (ii) credits from rediscounts and overdrafts
granted to financial entities by the Argentine Central Bank, according to
section 17 subsections b), c) and f) of the Argentine Central Bank Charter,
(iii) credits granted by the Banking Liquidity Fund created by Decree No. 32 of
December 26, 2001, secured by mortgage and pledge and (iv) certain labor
credits, including accrued interests until its total cancellation. Pursuant to
section 16 of Law No. 25,780 during the term of emergency set forth under the
Public Emergency Law No. 25,561 the Argentine Central Bank can grant rediscounts
and overdrafts to financial entities with liquidity and solvency problems,
included those entities under a restructuring process as contemplated in section
35bis of the Financial Institutions Law.
The holders of the following deposits are entitled to the general preferential right established by the Financial Institutions Law (following this order of preference),
- deposits of individuals or legal entities up to Ps. 50,000 or the equivalent thereof in foreign currency, enjoying this preference only one person per deposit. For the determination of this preference, all deposits of the same person registered by the entity shall be computed;
- deposits in excess of Ps. 50,000 or the equivalent thereof in foreign currency, referred to above;
- liabilities originated on commercial credit lines granted to the financial entity, which are directly in connection with international trade.
According to the Financial Institutions Law, the preferences set forth in previous paragraphs (i) and (ii) above, are not applicable to deposits held by persons who are affiliates of the financial entity, either directly or indirectly as determined by procedures that the Argentine Central Bank will establish in the future.
In addition, under section 53 of the Financial Institutions Law, the Argentine Central Bank has an absolute priority over all other creditors of the entity except as provided by the Financial Institutions Law.
Financial Institutions with Economic Difficulties
The Financial Institutions Law establishes that financial institutions, including commercial banks such as the Bank, which evidence a cash reserve deficiency, have not abided by certain technical standards, have not maintained minimum net worth standards, or which solvency or liquidity is deemed to be impaired by the Argentine Central Bank must submit a restructuring plan (a "Restructuring Plan") to the Argentine Central Bank. Such Restructuring Plan must be presented to the Argentine Central Bank on the date specified by the Argentine Central Bank, which should not be later than 30 calendar days from the date on which the request is made by the Argentine
Central Bank. In order to facilitate the implementation of a Restructuring Plan, the Argentine Central Bank is authorized to provide a temporary exemption from compliance with technical regulations and/or the payment of charges and fines which arise from such noncompliance.
The Argentine Central Bank may also, in relation to a Restructuring Plan presented by a financial institution, require such financial institution to provide guarantees or limit the distribution of profits, and appoint a supervisor, to oversee such financial institutions' management, with the power to veto decisions taken by the financial institution's corporate authorities.
In addition, the Argentine Central Bank's charter authorizes the Financial Superintendency within the Argentine Central Bank, subject only to the prior approval of the president of the Argentine Central Bank, to suspend for up to 30 days, in whole or in part, the operations of a financial entity if its liquidity or solvency has been adversely affected. Notice of this decision must be given to the board of directors of the Argentine Central Bank. In case at the end of such suspension period the Financial Superintendency considers it is necessary to renew it, it can only be authorized by the board of directors of the Argentine Central Bank, for an additional period not to exceed 90 days. During the suspension: (i) there is an automatic stay of claims, enforcement actions and precautionary measures; (ii) any commitment increasing the financial institution's liabilities is void, and (iii) acceleration of indebtedness and interest accrual is suspended.
If, in the judgment of the Argentine Central Bank, a financial institution is in a situation which, under the Financial Institutions' Law, would authorize the Argentine Central Bank to revoke the financial institution's license to operate as such, the Argentine Central Bank may, prior to considering such revocation, order a variety of measures, including (1) taking steps to reduce, increase or sell the financial institution's capital; (2) revoking the approval granted to the shareholders of the financial institution to own an interest therein, giving a term for the transfer of such shares; (3) exclusion and transfer of assets and liabilities; (4) constituting trusts with part or all the financial institution's assets (5) granting of temporary exemptions to comply with technical regulations and/or pay charges and fines arising from such defective compliance; or (6) appointing a bankruptcy trustee and removing statutory authorities.
Furthermore, it is provided that, those acts which are authorized, commissioned or decided by the Argentine Central Bank under section 35bis of the Financial Institutions' Law, involving the transfer of assets and liabilities, or which complement it, or are necessary to execute the restructuring of a financial institution, as well as those related to the reduction, increase and sale of equity, are not subject to any court authorization and cannot be deemed inefficient in respect of the creditors of the financial institution which was the owner of the excluded assets, even though its insolvency preceded such exclusion.
Dissolution and Liquidation of Financial Institutions
The Argentine Central Bank must be notified of any decision to dissolve a financial institution pursuant to the Financial Institutions' Law. The Argentine Central Bank, in turn, must then notify a court of competent jurisdiction which will determine who will liquidate the entity: the corporate authorities or an appointed, independent liquidator. This determination is based on whether or not sufficient assurances exist which indicate that such corporate authorities are able to carry out liquidation properly.
Pursuant to the Financial Institutions' Law, the Argentine Central Bank no longer acts as liquidator of financial institutions. However, when:
- a restructuring plan has failed or is not considered viable;
- local and regulatory violations exist; or
- substantial changes have occurred in the entity's condition since the original authorization was granted,
the Argentine Central Bank may decide to revoke a bank's license to operate as a financial institution. In this case, the law allows judicial or extrajudicial liquidation as in the case of voluntary liquidation described in the preceding paragraph.
Bankruptcy of a financial institution cannot be adjudicated until the license is revoked by the Argentine Central Bank. No creditor, with the exception of the Argentine Central Bank, may request the bankruptcy of the former entity until 60 days have elapsed since the revocation of the license.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
ITEM 5A. OPERATING RESULTS
GENERAL
Substantially all of our operations and customers are located in Argentina, and as a result we have been materially and adversely affected by the 2001 - 2002 economic crisis in Argentina. As a result, the Bank was forced to restructure its foreign debt and its income generation capacity was reduced. Given the continued instability and regulatory and economic changes that have affected Argentina, the accounting information set forth in this annual report may not be fully indicative of our anticipated results of operations or business prospects after the dates indicated.
The following discussion and analysis is intended to help understand and assess the significant changes and trends in our historical results and operations and the factors affecting our resources. You should read this section in conjunction with our audited consolidated financial statements and their related notes included in this annual report.
INFLATION ACCOUNTING ADJUSTMENTS
As a result of the adoption of various regulations since 2002, in addition to adjusting our financial statements for inflation until February 2003, as described in "Presentation of Financial Information" at the beginning of this annual report, we have also been required to adjust some of our assets and liabilities according to changes in various indexes. The following table compares the rate of inflation, as measured by the WPI, the consumer price index (the "CPI"), the CER and the CVS for the periods indicated.
FOR THE 12-MONTH PERIOD ENDED DECEMBER 31, ------------------------------------------- 2003 2002 2001 ------------------------------------------------------------------------------------------ Inflation (1) Wholesale Price Index............... 2.03% 118.44% (5.3)% Consumer Price Index................ 3.66% 40.95% (1.5)% CER................................. 3.66% 40.54% - CVS................................. 15.85% 0.83% - ------------------------------------------------------------------------------------------ |
(1) Source: INDEC.
In the first five months of 2004, the WPI increased 3.9% and the CPI increased 2.7%. Over the same period, the CER increased 2.1%. The CVS was discontinued on April 1, 2004, having increased 7.9% in the first quarter of 2004.
CURRENCY COMPOSITION OF OUR BALANCE SHEET
Until December 31, 2001, financial institutions in Argentina, including the Bank, used both pesos and dollars for all types of transactions, with the exception that only pesos could be used for the payment of salaries and taxes. As a result, Banco Galicia raised deposits and funding and made loans in both currencies. Our policy and Banco Galicia's policy was then to keep a net asset position in foreign currency (i.e., to have more assets than liabilities denominated in foreign currency).
In 2002, together with asymmetric pesification and the measures taken to compensate for it, the government instituted measures that modified the yields of assets and the cost of liabilities that had been pesified. In general, maximum and minimum fixed interest rates were established for pesified assets and liabilities, respectively. In addition, the principal of those assets and liabilities was adjusted by change in certain indexes based on consumer prices (CER) or salaries (CVS). In addition, in most cases, but especially in the case of public-sector assets,
maturities were extended. The terms and conditions of peso-denominated loans to the public sector and of certain peso-denominated deposits were also modified. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003."
As a result of these measures, as of December 31, 2002, and December 31, 2003, our balance sheet showed the following interest rate and currency mismatches:
- CER mismatch: The Bank's peso-denominated assets subject to adjustment by the CER (mainly secured Argentine government loans and certain government securities) exceeded its CER-adjusted peso-denominated liabilities (mainly restructured deposits and the advance to be provided by the Argentine Central Bank to purchase BODEN 2012 for hedging purposes). The recording of the borrowings from the Argentine Central Bank for liquidity support as CER-adjusted long-term peso-denominated liabilities in mid-2003 has partially mitigated the Bank's long CER-indexed peso position. See " -- Funding" below.
- Foreign-currency mismatch: The Bank's dollar-denominated assets (mainly BODEN 2012) exceeded its dollar-denominated liabilities (debt securities, borrowings from foreign banks and deposits in foreign branches and subsidiaries).
- Peso mismatch: The Bank's liabilities (voluntary deposits and the financial assistance from the Argentine Central Bank) exceeded its assets (mainly liquidity reserves and loans to the private sector), in each case denominated in pesos and bearing market interest rates. This mismatch was partially corrected with the recording in mid-2003 of the financial assistance from the Argentine Central Bank as long-term CER-adjusted liabilities.
The net asset portfolios in CER-adjusted and foreign currency-denominated assets are funded by peso-denominated liabilities and by the Bank's shareholders' equity.
The following table sets forth our assets and liabilities denominated in foreign currency, in pesos and adjustable by the CER, at the dates indicated.
AS OF DECEMBER 31, ---------------------------------------- 2003 2002 2001 ----------------------------------------------------------------------------------------------- (In millions (In millions of February of pesos) 28, 2003, constant pesos) ASSETS In pesos, unadjusted (1) 4,001.2 3,050.9 5,561.1 In pesos, adjusted by the CER 10,237.0 10,503.3 - In pesos, adjusted by the CVS 317.1 - - In foreign currency 8,339.4 10,350.3 22,316.5 --------------------------------------------------------------------------------------------- TOTAL ASSETS 22,894.7 23,904.5 27,877.6 --------------------------------------------------------------------------------------------- LIABILITIES AND SHAREHOLDERS' EQUITY In pesos, unadjusted, including shareholders' equity 6,023.4 9,311.0 9,528.5 In pesos, adjusted by the CER 8,979.3 4,803.0 - In pesos, adjusted by the CVS - - - In foreign currency 7,892.0 9,790.5 18,349.1 --------------------------------------------------------------------------------------------- TOTAL LIABILITIES 22,894.7 23,904.5 27,877.6 --------------------------------------------------------------------------------------------- |
(1) As of December 31, 2002, includes assets eligible to be adjusted by the CVS in the form of loans to individuals totaling Ps. 356.1 million. The Bank began to apply the CVS adjustment to the principal of these loans in November 2003.
The Bank's inability to manage or hedge its mismatches has exposed it to fluctuations in the exchange rate, inflation rate and market interest rates in 2002 and 2003 and has generated losses to the Bank, reducing its net financial income. Under inflation accounting rules, the inflation rate used to restate financial statements for inflation (the WPI variation) is used to determine the implicit cost of the Bank's shareholders' equity. This cost is represented in our income statements mainly by the monetary loss from financial intermediation.
In addition, given that, as a result of the measures to compensate banks for asymmetric pesification, the Bank's foreign currency-denominated assets comprise mainly the compensatory and the hedge bonds, which accrue at LIBOR, the yield on the Bank's foreign currency-denominated assets has been lower than the cost of the Bank's foreign currency liabilities.
In the context of significant and differential fluctuations in the exchange rate, inflation rate and domestic interest rates, these mismatches have been a source of potential losses for the Bank and they expose the Bank to future potential losses.
Due to the characteristics of the Argentine financial market, the lack of hedge instruments and limited access to the international capital markets, the Bank's capacity to modify these mismatches has been and remains limited. Moreover, the Bank's ability to hedge such mismatches is expected to remain limited in the near future. Although the Bank completed the restructuring of its foreign debt in 2004 and has agreed on a payment plan with the Argentine Central Bank for the financial assistance for liquidity support it received that is consistent with the Bank's repayment capacity in Argentina's current economic environment, the Bank will, for the foreseeable future, have limitations on its ability to manage its assets and liabilities effectively so as to minimize risks resulting from mismatches in terms of currencies and yields.
ARGENTINE ECONOMY IN 2003
In 2003, the Argentine economy consolidated its recovery from the recession starting in the second half of 1998, which had particularly intensified with the political, institutional and economic crisis at the end of 2001 and the first half of 2002. This latter crisis resulted in a strong deterioration of the real and monetary variables. During 2003, economic growth was accompanied by lower inflation rates and lower interest rates and, in the fiscal area, by a strong increase in fiscal revenue.
The two agreements signed with the International Monetary Fund in January 2003 and September 2003 helped to reduce uncertainty and to improve the fiscal accounts. Also positive during the past year was the orderly political transition in a year with presidential elections, after great institutional instability in the previous two years. The new administration headed by President Nestor Kirchner continued, in general, with the economic policies pursued by the previous government.
Continuing the recovery observed in the last two quarters of 2002, the GDP showed a seasonally adjusted increase of 2.5% and 2.0% in the first and the second quarters of 2003, respectively, with the growth during the first semester being 6.7% compared to the prior year. In the second half of the year, GDP growth accelerated. In the third and fourth quarters, GDP growth was 3.5% and 2.5%, respectively, in seasonally adjusted terms, with year-over-year growth in the second semester of 10.7%.
This strong increase in economic activity was fueled by recovery in domestic demand. In fact, investment rebounded strongly, reaching in 2003 a level 37.1% higher than the depressed levels of 2002. In addition, the increase in total wages, generated by the improvement in labor market conditions and the partial recovery in real wages, had a significant impact on private consumption, which grew 8.5% in 2003. This trend gained pace in the second half of the year when consumption grew at an annual rate of 11%.
On the supply side, the sectors that showed the best performances were again those benefiting from the change in relative prices of 2002, which favored the tradable sector of the economy. Such change had only a very small correction in 2003. In this regard, while the goods producing sector grew 14.4% on average during 2003, the service sector only grew by 4.1%. Manufactures recorded a solid performance, growing 15.8%, fueled mainly by import substitutes and exports. The high starting level of idle installed capacity at the aggregate level (it was 60% at the end of 2002 and had reached 70.1% a year later) benefited the manufacturing sector. The agricultural sector also showed solid performance in 2003, growing 6.9%, as so did construction, which grew on average 34.3% over the same period.
The strong economic growth had a favorable impact on the labor market. The unemployment rate (including beneficiaries of the subsidy granted by the government to unemployed heads of household through the
Heads of Household Plan) decreased from 17.8% in October 2002 to 14.3% in August 2003, as measured by the INDEC survey.
Credit did not expand in 2003, generating a strong increase in the economy's demand for money. This private-sector behavior allowed the Argentine Central Bank to pursue an expansionary monetary policy.
Inflation decelerated significantly during 2003. Consumer prices increased 3.7%, and wholesale prices increased only 2.0%. This moderate increase in prices is mainly explained by significant overall idle capacity, sustained demand for money by the public, appreciation of the nominal exchange rate and the government's refusal to allow an increase in utility tariffs.
Despite the expansionary monetary policy pursued by the Argentine Central Bank, the excess of foreign currency generated by the external sector contributed to a 12.8% appreciation of the nominal exchange rate during the year. The nominal exchange rate at year-end was Ps. 2.93 per U.S. dollar while at the end of 2002 it was Ps. 3.36 per U.S. dollar. Domestic interest rates reflected the significant improvement in the financial system's liquidity. In effect, average interest rates on 30-day peso-denominated time deposits were 2.59% at the end of 2003 compared to 33.06% at the end of 2002. There was also a strong decrease in the yield of the Lebac, which fell to 15.99% per annum at the end of 2003 from 42.14% per annum in December 2002. At the same time, the average maturity of the Lebac was extended to 361 days from 138 days in the previous year.
In the fiscal area, the improvement observed in the second half of 2002 continued during 2003, mainly as a result of a strong increase in tax revenues, which grew 43.6%. This increase was attributable to the favorable impact of the recovery on revenues from taxes related to the economic cycle, to the increase in revenues from income-related taxes (principally because firms were not allowed to adjust their financial statements for inflation) and to the contribution of revenues from taxes on exports and from the tax on bank debits and credits. The increase in tax revenues offset the Ps. 14,940 million expansion in primary expenditures, of which Ps. 6,000 million are explained by higher automatic transfers to the provinces given the current revenue-sharing system, and allowed the government to achieve a fiscal surplus of Ps. 8,700 million (equivalent to 2.3% of GDP). This permitted the government to comfortably meet the fiscal target agreed to with the IMF. After interest payments of Ps. 6,917 million, the global fiscal result was a surplus of Ps. 1,778 million.
The external sector showed an important current account surplus once more in 2003, which resulted from a high trade surplus. During 2003, the current account surplus amounted to US$7,941 million, similar to the level observed during 2002. The trade surplus during the period amounted to US$14,746 million despite the strong increase in imports.
ARGENTINE FINANCIAL SYSTEM
During 2003, change in the financial system in Argentina was very positive. Deposits and money market mutual funds recovered, and the financial system's liquidity as a whole increased. Nonetheless, total credit to the private sector continued to decrease, even though certain components fared satisfactorily, especially during the second half of the year. Although the change in deposits was positive, their growth was attenuated by a high tax levied on bank debits and credits (which is not to be computed on account of other taxes). This tax encourages individuals to hold cash as opposed to deposits.
During 2003, peso-denominated voluntary time deposits in the system increased 84.6% to Ps. 34,308 million as of December 31, 2003, while peso-denominated transactional deposits (or deposits held in current accounts and savings accounts) increased 61.6% to Ps. 37,651 million. Therefore, total voluntary deposits denominated in pesos amounted to Ps. 71,989 million as of year-end 2003. Likewise, dollar-denominated voluntary deposits showed a strong increase of 155.7% in the year, amounting to Ps. 4,749 million as of December 31, 2003. Total voluntary deposits in the system, denominated either in pesos or dollars, reached Ps. 76,708 million (approximately 20.6% of GDP) at the end of 2003, which represented 75.3% growth, compared with 12.9% of GDP at the end of 2002 and with a maximum of 29.8% of GDP in 2000.
In 2003, the average term of total voluntary time deposits increased 19.9%, from 44.5 days at the beginning of the year to 53.4 days at year-end, reflecting a greater confidence in the financial system. Furthermore, during 2003, the voluntary deposits segment exceeding Ps. 1 million grew faster than the retail deposit segment, signaling an improvement in the confidence of wholesale investors.
Growth in voluntary deposits was sharper in the first half of 2003 as a result of the government-authorized release of a portion of the deposits restructured during the 2001 - 2002 crisis. Most of these funds were attracted by the financial system. During the second half of the year, total deposits continued to increase but at slower growth rates. Over this period, transactional deposits grew 39% while voluntary time deposits decreased by 2.6%. This led transactional deposits to exceed voluntary time deposits at the end of 2003. This incongruous behavior can be explained principally by the decrease in interest rates.
Total deposits grew 32.8%, reaching Ps. 88,736 million at year-end. These deposits include remaining restructured deposits or CEDROS and deposits subject to amparo claims, net of the restructured deposits exchanged for government bonds pursuant to Decree No. 1836/02. This exchange had not been completed as of December 31, 2003. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Deposits."
At the end of 2003, total loans to the private sector amounted to Ps. 30,900 million, which represented 8.3% of GDP, compared to the maximum of 23.3% of GDP recorded in 1999. The volume of loans to the private sector has steadily diminished since 1999. This drop became steeper in 2002 (31.0%), with an 11.9% reduction in 2003. However, loan volume stabilized in the second half of the year, thus increasing 0.6% during this period, mainly as a result of an increase in consumer credit lines (personal loans and loans through credit cards) and short-term commercial loans. Consumer credit lines increased 16.2% during that period and commercial loans (advances in current accounts and promissory notes) grew 3.85%. This increase went along with the expansion in economic activity and the recovery of aggregate consumption, especially during the last half of 2003. The volume of mortgage loans and loans collateralized by movable goods continued to decrease during 2003. However, since the end of 2003, banks have launched advertising campaigns to actively offer mortgage credit lines denominated in pesos with terms ranging from five to 15 years.
The strong growth of deposits and the continuing contraction of credit fostered the increase in the financial system's liquidity, which reached high levels, even compared with those of the convertibility period. At the end of the year, the financial system's liquidity exceeded 28% of total deposits.
RESULTS OF OPERATIONS OF GRUPO GALICIA FOR THE FISCAL YEARS ENDING DECEMBER 31, 2003, DECEMBER 31, 2002 AND DECEMBER 31, 2001
GENERAL
We discuss below our results of operations for our fiscal year ended December 31, 2003, as compared with our results of operations for the fiscal year ended December 31, 2002. We also discuss our results of operations for fiscal year 2002 as compared with our results of operations for the fiscal year ended December 31, 2001.
NET LOSS
For fiscal year 2003, we recorded a net loss of Ps. 217.1 million compared to a net loss after loss absorption (described below) of Ps. 1,471.5 million for fiscal year 2002. The lower net loss in 2003 was primarily attributable to the following factors:
- a 67.0% reduction in financial expenses, from Ps. 4,560.4 million to Ps. 1,502.9 million;
- a 82.6% reduction in charges for provisions for losses on loans and other receivables, from Ps. 1,648.5 million to Ps. 286.4 million;
- a 40.5% reduction in administrative expenses, from Ps. 947.5 million to Ps. 563.4 million;
- a 99.0% reduction in the monetary loss from financial intermediation, from Ps. 1,437.7 million to Ps. 14.5 million;
- the generation of Ps. 143.0 million of miscellaneous income, net, compared to Ps. 429.6 million of miscellaneous losses for the same period in fiscal year 2002; and
- a 56.5% reduction in losses from equity investments, from Ps. 52.0 million to Ps. 22.6 million.
The decrease in net loss in 2003 was partially offset by a 71.0% reduction in financial income, from Ps. 5,797.7 million to Ps. 1,681.9 million.
In fiscal year 2002, we absorbed Ps. 1,370.0 million of net losses in accordance with Argentine Central Bank Communique "A" 3800. This loss absorption is explained under " -- Loss Absorption." After giving effect to the loss absorption allowed under Communique "A" 3800, our net loss for fiscal year 2002 was Ps. 1,471.5 million.
GRUPO GALICIA ---------------------------------------------------- FISCAL YEAR ENDED ---------------------------------------------------- DECEMBER 31, ----------------------------------------------------- 2003 2002 2001 ------------------------------------------------------------------------------------------------------ (in millions of (in millions of February 28, 2003, pesos, except constant pesos, percentages) except percentages) CONSOLIDATED INCOME STATEMENT Financial income............................... Ps.1,681.9 Ps. 5,797.7 Ps. 3,586.8 Financial expenses............................. 1,502.9 4,560.4 2,126.1 Net financial income........................... 179.0 1,237.3 1,460.7 Provision for losses on loans and other receivables ................................ 286.4 1,648.5 1,008.5 Net income from services....................... 361.4 375.4 942.6 Monetary loss from financial intermediation.... (14.5) (1,437.7) - Administrative expenses........................ 563.4 947.5 1,369.9 Monetary gain (loss) from operating expenses... 0.1 21.0 - Minority interest.............................. (9.6) 269.6 (22.2) Income from equity in other companies.......... (22.6) (52.0) 35.0 Miscellaneous income (loss), net .............. 143.0 (429.6) 386.0 Monetary gain (loss) from other transactions... (3.5) (163.1) - Income before taxes............................ (216.5) (2,775.1) 423.7 Income tax..................................... (0.6) (66.4) (159.1) Net income before absorption................... (217.1) (2,841.5) 264.6 Absorption subject to approval of annual shareholders' meeting....................... - 1,370.0 - NET INCOME AFTER ABSORPTION.................... Ps. (217.1) Ps. (1,471.5) Ps. 264.6 Return on average assets....................... (0.92)% (5.90)% 0.90% Return on average shareholders' equity......... (14.19) (60.51) 8.67 ====================================================================================================== |
Net loss per share amounted to Ps. 0.199 in fiscal year 2003. For fiscal year 2003, return on assets was a negative 0.92% and return on average shareholders' equity was a negative 14.19%, compared with a negative 5.90% return on assets and a negative 60.51% return on shareholders' equity in the previous fiscal year.
FINANCIAL INCOME
Our financial income was composed of the following:
GRUPO GALICIA -------------------------------------------------- FISCAL YEAR ENDED -------------------------------------------------- DECEMBER 31, -------------------------------------------------- 2003 2002 2001 ---- ---- ---- (in millions of (in millions of February 28, 2003, pesos) constant pesos) Income on loans and other receivables resulting from financial intermediation and premiums earned on reverse repos........................................ Ps. 924.9 Ps. 1,404.2 Ps. 3,310.9 Income from government and corporate securities, net...... 129.2 601.0 158.0 Other(1).................................................. 627.8 3,792.5 117.9 ----------- ----------- ----------- TOTAL..................................................... Ps. 1,681.9 Ps. 5,797.7 Ps. 3,586.8 ----------- ----------- ----------- |
(1) Reflects income from financial leases, net, and differences in the quotation of gold and foreign currency as well as premiums on forward sales of foreign exchange. Also includes CER adjustments in the amount of Ps. 576.8 million and Ps. 3,402.8 million for fiscal years 2003 and 2002, respectively, and a CVS adjustment in the amount of Ps. 35.0 million for fiscal year 2003.
The following table shows our yields on interest-earning assets and cost of funds:
GRUPO GALICIA, AS OF DECEMBER 31, ---------------------------------------------------------------------------------------- 2003 2002 2001 ---------------------------------------------------------------------------------------- AVERAGE AVERAGE NOMINAL REAL AVERAGE BALANCE RATE BALANCE RATE RATE BALANCE RATE ------- ---- ------- ---- ---- ------- ---- (in millions of pesos, (in millions of February 28, 2003, constant pesos, except except rates) rates) INTEREST-EARNING ASSETS ............ Ps. 20,725.1 6.44% Ps. 26,953.5 19.71% 3.43% Ps. 27,254.2 13.98% Government securities............. 2,082.8 3.43 2,255.6 13.24 36.49 2,531.3 10.96 Loans............................. 11,556.7 9.84 15,262.4 28.86 (26.18) 20,002.3 16.03 Other (1)......................... 7,085.6 1.77 9,435.5 6.47 43.42 4,720.6 6.90 INTEREST-BEARING LIABILITIES ....... Ps. 18,637.7 6.17% Ps. 22,896.3 18.89% 7.84% Ps. 24,047.3 8.42% Current accounts.................. 215.6 1.39 194.6 8.99 (31.57) 739.9 7.14 Saving accounts................... 613.1 0.55 1,451.8 0.63 (20.11) 2,421.6 1.58 Time deposits..................... 3,608.3 7.13 6,371.5 20.95 16.06 14,250.3 9.74 Argentine Central Bank (2)........ 8,062.7 5.87 7,147.6 31.31 (39.83) 149.7 9.29 Other financial entities.......... 2,074.4 9.20 2,778.7 8.85 58.68 1,708.5 8.62 Debt securities (includes negotiable obligations).......... 2,710.5 5.69 2,568.5 5.90 62.26 2,934.2 8.37 Other ............................ 1,353.1 5.03 2,383.6 13.82 31.19 1,843.1 7.54 SPREAD AND NET YIELD Interest spread, nominal basis (3).. 0.27% 0.82% (4.41)% 5.56% Net yield on interest-earning assets (4)....................... 0.89 3.66 (6.41) 6.54 Financial margin (5) ............... 0.86 4.59 5.36 |
(1) For fiscal years 2002 and 2003, includes amounts corresponding to the compensatory bond and the hedge bond.
(2) For fiscal years 2002 and 2003, includes the financial assistance from the Argentine Central Bank for transitory liquidity support and the advance granted by the Argentine Central Bank for the subscription of the hedge bond.
(3) Reflects the difference between the average nominal interest rate on interest-earning assets and the average nominal interest rate on interest-bearing liabilities. For fiscal years 2002 and 2003, interest rates include the CER adjustment.
(4) Net interest earned divided by average interest-earning assets. For fiscal years 2002 and 2003, interest rates include the CER adjustment.
(5) Represents net financial income, divided by average interest-earning assets.
Fiscal Year 2003 Compared to Fiscal Year 2002
For fiscal year 2003, our financial income was Ps. 1,681.9 million, a 71.0% decrease compared to Ps. 5,797.7 million in fiscal year 2002. The decrease was the result of the lower yield on interest-earning assets and a lower average volume of such assets. The average yield on interest-earning assets decreased 1,327 basis points to 6.44%. This decline is mainly attributable to the 1,902 basis-point decrease in the average yield on loans, which was due in turn to a CER variation of 3.7% for fiscal year 2003 compared to a CER variation of 40.5% for fiscal year 2002. Average interest-earning assets for fiscal year 2003 were Ps. 20,725.1 million, 23.1% lower than the Ps. 26,953.5 million for fiscal year 2002. This decrease was the result of a decline in the average loan portfolio by 24.3%, a 24.9% decrease in the item "Others" and a 7.7% decrease in the net position in government securities.
The average loan portfolio for fiscal year 2003 was Ps. 11,556.7 million, 24.3% lower than the Ps. 15,262.4 million for fiscal year 2002. This reduction was due to the Ps. 2,982.3 million decrease in loans to the private sector and the Ps. 723.4 million decrease in loans to the public sector. The decrease in average loans to the private sector was mainly due to significant borrower repayments and prepayments and the securitization or sale of mortgage and commercial loans as part of the Galicia capitalization and liquidity plan. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Galicia Capitalization and Liquidity Plan." In addition, the variation in the private- and public-sector loan portfolios reflects the restatement of the figures for the 12 months of fiscal year 2002 in constant currency of February 28, 2003, while practically no net loan origination took place during fiscal year 2003.
Based on daily information published by the Argentine Central Bank, the Bank's estimated loan market share in the Argentine financial system (on an unconsolidated basis and excluding the regional credit-card companies' loan portfolio) was 12.93% as of December 31, 2003, and 11.04% as of December 31, 2002.
In fiscal year 2003, the average yield on total loans, including the CER adjustment, was 9.84% compared to 28.86% in fiscal year 2002. During this period, the private-sector loan portfolio accrued at an average 20.03% interest rate and the public-sector loan portfolio accrued at an average 4.51% interest rate. The yield on public-sector loans (mostly secured loans) was reduced by the valuation rules issued by the Argentine Central Bank. Those secured loans resulting from an exposure (in origin) to the Argentine federal government accrued the CER adjustment plus a 4.0% average annual interest rate and those resulting from an exposure (in origin) to the provincial governments accrued the CER adjustment plus a 2.0% average annual interest rate. However, Argentine Central Bank Communique "A" 3911 established that certain public-sector assets had to be recorded at their present value calculated using a discount rate of 3.0% per annum. See Item 4. "Information on the Company -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Valuation of Public Sector Assets." The effect of adjusting the book value of secured loans in accordance with this rule resulted in a Ps. 198.1 million loss for the Bank. This loss decreased our financial income during fiscal year 2003.
The average interest rate on peso-denominated private-sector loans decreased by 345 basis points mainly due to the difference in the CER variation (in fiscal year 2002, the CER increased 40.5% and, in fiscal year 2003, it increased only 3.7%). This decrease was partially offset in fiscal year 2003 by a gain of Ps. 102.7 million (end-of-period amount) corresponding to the estimated difference resulting from the application of the CER to the loan portfolio that should instead have been adjusted by reference to the CVS. On May 18, 2004, the date by which financial institutions had to opt into the compensation regime laid down by the government for the negative effects of asymmetric indexation (through, among other measures, Resolution No. 302/04 of the Ministry of Economy), the Bank announced it would not participate in the compensation regime and formally challenged the Ministry of Economy resolution. In the Bank's opinion, that resolution is contrary to Law No. 25,796 by which the government established compensation to financial institutions for the negative effects of asymmetric indexation. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Compensation to Financial Institutions -- For Asymmetric Indexation and for Differences Related to Amparo Claims."
Our average position in government securities in fiscal year 2003 was Ps. 2,082.8 million, 7.7% lower than the Ps. 2,255.6 million for fiscal year 2002. In addition, the average interest rate on those assets decreased from 13.2% to 3.4% over the same period. Our average position in government securities decreased due to the acceptance by holders of Ps. 693.0 million in deposits with the Bank of the Canje I, an offer made to depositors to exchange
their deposits for government bonds, which was completed in late December 2002. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Deposits."
The "Other" item is mainly comprised of compensatory bonds and hedge bonds resulting from the compensation for asymmetric pesification to be received by the Bank and recorded under the balance sheet account "Other Receivables from Financial Intermediation," the balance of which was Ps. 4,629.6 million as of December 31, 2003. These bonds are dollar-denominated. The Ps. 2,349.8 million decrease in the average balance of "Other" mainly reflects reporting the additional compensation to be received under "Government Securities" in fiscal year 2003 rather than "Other," as previously, and the net effect of restating in constant currency of February 28, 2003, the balances of these bonds in fiscal year 2002 and the decrease in the exchange rate between the two periods.
The average yield on "Other" decreased 470 basis points mainly due to the lower variation of the CER in fiscal year 2003 (as previously explained). This item includes the Bank's holdings of notes from the Galtrust I Financial Trust (whose assets consist of secured loans originally extended to provincial governments), the principal of which is adjusted by the CER.
Fiscal Year 2002 Compared to Fiscal Year 2001
For fiscal year 2002, financial income was Ps. 5,797.7 million, a 61.6% increase from Ps. 3,586.8 million in the fiscal year 2001.
In accordance with the provisions of Argentine Central Bank Communique "A" 3703, financial income does not include the gain obtained by revaluation of the Bank's net asset foreign currency position as of December 31, 2001, from Ps. 1.00 per US$1.00 to Ps. 1.40 per US$1.00 as a result of the change in the foreign exchange regime introduced on January 6, 2002, which implied a 40.0% increase in the exchange rate. In accordance with the communique, this gain had to be directly reflected in a specific shareholders' equity account ("Unrealized Valuation Difference from the Net Asset Foreign Currency Position"), without being recognized in the income statement. See " -- Loss Absorption." This policy, which differs from Argentine GAAP standards, modified financial income for fiscal year 2002 since a Ps. 1,451.3 million gain was not recorded in the Bank's income statement.
According to the data shown in the table above, financial income for fiscal year 2002 was the result of an increase in the average yield on interest-earning assets, partially offset by a decrease in the average volume of those assets. The average rate on interest-earning assets rose 573 basis points to 19.71%. This fluctuation was based on a 1,283 basis-point increase in the average lending rate, which was mainly due to the accrual of the CER on the pesified loan portfolio (mainly secured loans). The CER variation was 40.54%. Average interest-earning assets amounted to Ps. 26,953.5 million, which represented a 1.1% decrease from the Ps. 27,254.2 million in the year ended December 31, 2001. This was mainly the result of a lower average loan portfolio, which decreased by 23.7%. The decrease of the average loan portfolio was partially offset by the 99.9% growth recorded in the item "Others."
The average loan portfolio for fiscal year 2002 amounted to Ps. 15,262.4 million, 23.7% lower than Ps. 20,002.3 million in fiscal year 2001. This decrease was the result of a Ps. 6,793.6 million decrease in the private-sector loan portfolio, partially offset by a Ps. 2,054.1 million increase in the public-sector loan portfolio (mainly secured loans). The increase in the public-sector loan portfolio was the result of the pesification of the portfolio at the Ps. 1.40 per US$1.00 exchange rate and of the adjustment of the portfolio's principal by the CER. The decrease in the private-sector loan portfolio was the result of the pesification of the portfolio at the Ps. 1.00 per US$1.00 exchange rate, significant customer repayments and prepayments and the Bank's securitization or sale of private-sector commercial and mortgage loans when the Galicia capitalization and liquidity plan was launched in the amount of Ps. 638.0 million in constant pesos of February 28, 2003. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Galicia Capitalization and Liquidity Plan." In addition, these variations reflect the restatement of fiscal years 2002 and 2001 in constant currency of February 28, 2003.
Based on daily data prepared by the Argentine Central Bank, Banco Galicia's estimated market share of all loans in the Argentine financial system, excluding the loans of the four regional credit-card companies, was 11.04% as of December 31, 2002, compared with 10.00% as of December 31, 2001.
The average interest rate for total loans was 28.86% for fiscal year 2002, including the CER adjustment. In this period, loans to the private sector accrued at an average 20.82% interest rate, while loans to the public sector recorded an average interest rate of 35.57%. Secured loans representing an original exposure to the Argentine government accrued the CER adjustment plus an annual average interest rate of 4.0%. Those secured loans that were originally an exposure to the provincial governments accrued the CER plus an annual 2.0% interest rate. The average rate was lower than the CER variation during the year mainly due to the restatement of fiscal year 2002 balances for inflation. Because of the regulatory changes described in other sections of this annual report, private-sector pesified loans (excluding those mortgage loans for the sole and permanent residence of the borrower of up to US$250,000 and certain personal loans and pledge loans) accrued the CER plus an additional fixed interest rate ranging from 3.5% to 8.0% depending on the type of loan, as established by the Argentine Central Bank. Due to the successive changes in the applicable rules and since these modifications had not been fully defined as of December 31, 2002, mortgage loans for the sole and permanent residence of the borrower of up to US$250,000 and personal loans and pledge loans, for which the CVS adjustment plus an interest rate determined by the Argentine Central Bank applied, accrued at the originally agreed interest rate. Private-sector loans that were originally denominated in pesos (mainly credit card loans) bore market interest rates.
The 99.9% increase in the item "Others" mainly shows the incorporation of the compensatory bonds and hedge bonds still to be received by the Bank as compensation for asymmetric pesification. These bonds were recorded under "Other Receivables from Financial Brokerage" for Ps. 7,098.6 million as of December 31, 2002, in constant pesos of February 28, 2003. Both bonds are dollar-denominated, and their valuation tracked the increase in the value of the U.S. dollar against the peso in fiscal year 2002. See " -- Consolidated Assets" below.
The average balance of our net position in government securities was Ps. 2,255.6 million, 10.9% lower than in fiscal year 2001. The average yield on the net position in government securities was 228 basis points higher than that recorded in the prior year. The decrease in the average balance was mainly due to the restatement for inflation of the prior-year balance. In addition, the decrease was the result of the net effect of the Bank's participation in the swap of government securities for secured loans in late 2001 and the increase in the peso value of the net position in government securities not tendered in that swap (since most were dollar-denominated securities, which were pesified at the Ps. 1.40 per US$1.00 exchange-rate). The average net position in government securities during fiscal year 2002 consisted mainly of Argentine Republic External Notes, Bono Encaje, Fiscal Credit Certificates and that portion of the compensatory bond that was actually credited to the Bank. The Argentine Republic External Notes and the compensatory bond are dollar-denominated. The Bono Encaje and the Fiscal Credit Certificates were pesified at the Ps. 1.40 per US$1.00 exchange-rate, and their principal was adjusted by the CER. In addition, during September 2002, the Bank used its holdings of the Bono Encaje, amounting to Ps. 539.7 million, to acquire the bonds to be delivered to depositors who had chosen to exchange their deposits for bonds as part of the Canje I. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Deposits" and Item 4. "Information on the Company -- Selected Statistical Information -- Government and Corporate Securities."
Financial income also recognized a gain of Ps. 182.5 million due to foreign exchange differences and foreign currency premiums (this gain does not include the gain from the revaluation of our net asset foreign currency position as of December 31, 2001, from peso-dollar parity to the Ps. 1.40 per US$1.00 exchange rate) and income from foreign exchange brokerage amounting to Ps. 53.0 million.
FINANCIAL EXPENSES
Our financial expenses were composed of the following:
GRUPO GALICIA ---------------------------------------- FISCAL YEAR ENDED ---------------------------------------- DECEMBER 31, ---------------------------------------- 2003 2002 2001 ---- ---- ---- (in millions of (in millions of February pesos) 28, 2003, constant pesos) Expenses from Interest on deposits............................. Ps. 228.6 Ps. 448.4 Ps. 1,495.5 Debt securities ................................. 154.2 281.0 234.9 Contributions and taxes.......................... 31.7 50.4 93.0 Other (1)........................................ 1,088.4 3,780.6 302.7 ----------- ---------- ----------- TOTAL.............................................. Ps. 1,502.9 Ps.4,560.4 Ps. 2,126.1 ----------- ---------- ----------- |
(1) Includes accrued interest on liabilities resulting from financial brokerage with banks and international entities and premiums payable on repos. For fiscal years 2003 and 2002, includes Ps. 187.5 million and Ps. 1,734.6 million, respectively, of CER adjustments.
Fiscal Year 2003 Compared to Fiscal Year 2002
Financial expenses for fiscal year 2003 decreased by 67.4% to Ps. 1,502.9 million compared to Ps. 4,560.4 million for fiscal year 2002. The reduction in financial expenses was the result of a 1,272 basis-point decrease in the average cost of funds and of an 18.1% decrease in the average balance of interest-bearing liabilities. Average interest-bearing liabilities for fiscal year 2003 amounted to Ps. 18,637.7 million compared to Ps. 22,896.3 million for fiscal year 2002. This decrease is explained, among other factors, by the restatement of fiscal year 2002 figures in constant currency of February 28, 2003. Average interest-bearing deposits amounted to Ps. 4,437.0 million in fiscal year 2003, 44.7% lower than the Ps. 8,017.9 million for fiscal year 2002. This decrease was primarily the result of:
- the strong decrease in the Bank's deposits, both of its Argentine and foreign operations, that took place during the first months of 2002;
- the restructuring, completed during the last quarter of 2002, of Galicia Uruguay's deposits, which, in accordance with the restructuring proposal and depositor preferences, were partially replaced by negotiable obligations;
- the completion during the third quarter of 2003 of the offer made by Galicia Uruguay to its customers to exchange its restructured deposits for different combinations of BODEN 2012 and/or new negotiable obligations issued by Galicia Uruguay;
- the payment by Galicia Uruguay in January 2003 and September 2003 of the first installments under Galicia Uruguay's deposit restructuring schedule;
- the decrease in the Bank's deposits in Argentina as a consequence of the judicial orders received by the Bank mandating the reimbursement of deposits;
- the completion by late December 2002 of the Canje I (see Item 4.
"Information on the Company -- Main Regulatory Changes in 2002 and 2003 --
Deposits");
- to a lesser extent, the lifting of restrictions on the availability of restructured deposits as established by Decree No. 739/03, as a result of which, between April 2003 and August 2003, the Bank retained approximately 75% of the amount of restructured deposits that became freely available as well as of the maturity of the installments for the repayment of the remaining restructured deposits (see Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Deposits"); and
- the appreciation of the peso against the U.S. dollar between 2002 and 2003.
Interest-bearing deposits held with the Bank in Argentina increased from Ps. 2,535.7 million as of December 31, 2002, to Ps. 3,248.5 million as of December 31, 2003. This growth was not sufficient to offset the factors outlined above, however.
Of the total average interest-bearing deposits for fiscal year 2003, Ps. 1,631.9 million were dollar-denominated deposits and Ps. 2,805.1 million were peso-denominated compared with Ps. 3,938.5 million and Ps. 4,079.4 million, respectively, in fiscal year 2002. The Bank's estimated market share of "voluntary" deposits (current account and saving account deposits plus voluntary time deposits) in the Argentine financial system only, based on daily information published by the Argentine Central Bank, increased to 4.75% as of December 31, 2003, compared to 4.34% as of December 31, 2002.
The average cost of interest-bearing deposits was 5.95% in fiscal year 2003, 1,103 basis points lower than the 16.98% average cost for fiscal year 2002. Peso deposits accrued an 8.45% average interest rate (including the adjustment of principal to reflect the variation of the CER) in fiscal year 2003 compared to a 30.34% average interest rate in fiscal year 2002. This decrease was mainly the consequence of the decrease in the CER variation (as explained in " -- Net Financial Income") and of the decrease in peso-offered interest rates experienced by the whole market in 2003 (as a result of increased relative exchange rate stability and an expansionary monetary policy). The cost of dollar-denominated deposits was 1.64% in fiscal year 2003, 150 basis points lower than the 3.14% for fiscal year 2002. This reduction was mainly attributable to the restructuring of Galicia Uruguay's deposits, which was approved by the Uruguayan courts in December 2002. From December 2002 until December 2003, these deposits accrued interest at a 2.0% annual rate compared to a higher market-based rate prior to the restructuring.
The average balance of debt securities for fiscal year 2003 amounted to Ps. 2,710.5 million, slightly greater than the Ps. 2,568.5 million for fiscal year 2002. The average cost of debt securities was 5.69% in fiscal year 2003. For the prior fiscal year, this cost was 5.90%.
In fiscal year 2003, the item "Argentine Central Bank" recorded an average balance that was Ps. 915.1 million greater than the Ps. 7,147.6 million of fiscal year 2002 and an average cost of 5.87%, 2,544 basis points lower than the 31.31% interest rate for fiscal year 2002. The increase in the average balance mainly reflects the addition of the supplemental advance from the Argentine Central Bank to be granted to the Bank for the purchase of the hedge bond corresponding to pesified assets of foreign branches and subsidiaries under the provisions of Decree No. 2167/02. See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Compensation to Financial Institutions -- For Asymmetric Pesification and its Consequences."
During fiscal year 2003, the average amount of outstanding financial assistance owed by the Bank to the Argentine Central Bank for liquidity reasons, excluding borrowings from the Argentine Central Bank used to repay debt with the Banking Liquidity Fund, was Ps. 4,786.1 million compared with Ps. 4,878.5 million for fiscal year 2002. The higher amount recorded for fiscal year 2002 reflects the adjustment for inflation of 2002 amounts through February 28, 2003. The average cost of this financial assistance was 5.83% for fiscal year 2003 compared to 28.25% for fiscal year 2002. The Bank obtained approval for the voluntary restructuring of the debt owed to the Argentine Central Bank for liquidity support in accordance with the terms of Decrees No. 739/03 and No. 1262/03. Therefore, on April 30, 2003, this financial assistance began to accrue the CER adjustment plus a 3.5% annual interest rate. Prior to that date, this financial assistance was a peso-denominated unadjusted liability accruing interest at a rate equivalent to 80.0% of the monthly average interest rate on 30-day Lebac or the minimum term Lebac auctioned on the market.
The borrowings from the Argentine Central Bank to repay debts with the Banking Liquidity Fund amounted in average to Ps. 807.2 million in fiscal year 2003 compared with Ps. 484.3 million in fiscal year 2002. This debt is adjusted by the CER and accrues at a 3.5% annual interest rate. The financial assistance to be granted to the Bank by the Argentine Central Bank for the purchase of the hedge bond is adjusted by the CER and accrues at a 2.0% annual interest rate. The average balance of this liability was Ps. 2,472.0 million in fiscal year 2003 and Ps. 2,008.8 million in fiscal year 2002. This increase was due to the addition of the advance to be granted to the Bank by the Argentine Central Bank for the purchase of the hedge bond corresponding to pesified assets of foreign branches and subsidiaries during the second half of 2002.
During fiscal year 2003, debt with other financial institutions recorded an average balance of Ps. 2,074.4 million, 25.3% lower than the Ps. 2,778.7 million of fiscal year 2002. The average cost was 9.20% for fiscal year 2003, 36 basis points higher than the 8.85% for fiscal year 2002. The decrease in the average balance was mainly attributable to the appreciation of the peso and the increase in interest rate was mainly attributable to the increase in the cost of credit lines denominated in pesos.
The decrease in the average balance of the item "Other Interest-Bearing Liabilities" between fiscal year 2003 and the previous period is mainly attributable to the repayment of repurchase agreements entered into with the Argentine Central Bank and the repayment of a loan from the Banking Liquidity Fund during 2002 with the proceeds of borrowings from the Argentine Central Bank. In addition, the item "Other Interest-Bearing Liabilities" included the average balances of loans granted to the Bank by Sedesa and the FFAEFyS, both dollar-denominated and amounting, on average, to Ps. 190.5 million and Ps. 90.6 million, respectively, in fiscal year 2003, compared with Ps. 158.2 million and Ps. 79.7 million, respectively, in fiscal year 2002.
Financial expenses for fiscal year 2003 include a Ps. 150.2 million loss for foreign-exchange quotation differences mainly reflecting the revaluation of the Bank's foreign currency net position for the decrease in the exchange rate from Ps. 3.36 as of December 31, 2002, to Ps. 2.93 as of December 31, 2003. This loss was partially offset by a Ps. 57.9 million gain from foreign exchange brokerage.
Fiscal Year 2002 Compared to Fiscal Year 2001
Financial expenses for fiscal year 2002 were Ps. 4,560.4 million, 113.2% higher than Ps. 2,126.1 million for fiscal year 2001. This increase reflected a 1,049 basis point growth in the average interest rate of interest-bearing liabilities, partially offset by a 5.0% decrease in their volume.
Average interest-bearing liabilities amounted to Ps. 22,896.3 million in comparison with Ps. 24,047.3 million for fiscal year 2001. This decline is to a large extent the result of the restatement of the comparison base in constant currency of February 28, 2003. In addition, this decline was the result of the decrease in deposits during the first half of 2002, which was partially compensated by: (1) the pesification of originally dollar-denominated deposits at the exchange rate of Ps. 1.40 per US$1.00 and the adjustment of their principal by the CER (the resulting restructured peso deposits are known as "CEDROS"); (2) the valuation of dollar-denominated liabilities subject to foreign law at the market exchange rate, which increased from Ps. 1.00 per US$1.00 to Ps. 3.363 per US$1.00 at the close of fiscal year 2002, including debt with foreign financial institutions, debt securities and deposits in foreign branches and subsidiaries; (3) the increase in Argentine Central Bank's financial assistance for liquidity support due to Bank's deposit loss in the first half of 2002; (4) the addition of the Argentine Central Bank advance to be used for the purchase of the hedge bond; and (5) the addition of dollar-denominated loans granted to the Bank by Sedesa and the FFAEFyS when the Galicia capitalization and liquidity plan was launched.
Total interest-bearing deposits amounted to Ps. 8,017.9 million, 53.9% lower than the Ps. 17,411.8 million of fiscal year 2001. This decrease was the result of the decrease in the dollar-denominated deposits of foreign subsidiaries, mainly during the first quarter of 2002, and in restructured deposits (CEDROs). The decline in CEDROs resulted from court orders in response to amparo claims requiring their reimbursement and the government's offer to holders of restructured deposits to exchange such deposits for Argentine government bonds. These decreases were compensated by the pesification of deposits in Argentina originally denominated in U.S. dollars at the exchange rate of Ps. 1.40 per US$1.00 and adjustment of their principal by the CER and by the valuation of deposits in foreign branches and subsidiaries (mainly deposits in Galicia Uruguay) at the market exchange rate. Galicia Uruguay's restructuring of deposits into new deposits or negotiable obligations was approved by the Uruguayan courts on December 23, 2002. As a result, fiscal year 2002 average dollar-denominated interest-bearing deposits reflect practically all of Galicia Uruguay deposits.
Average peso-denominated time deposits amounted to Ps. 2,917.4 million in fiscal year 2002. This amount mainly represents restructured deposits in Argentina. As of December 31, 2002, total restructured deposits in Argentina amounted to Ps. 735.4 million (principal only) and Ps. 73.6 million corresponded to restructured deposits whereby their holders had exercised the option to exchange them for Argentine government securities, pursuant to Decree No. 1,836/02 (Canje II). The Canje I was completed in December 2002, which in the Bank's case, led to a decrease in CEDROs of Ps. 693.0 million in nominal terms (principal only) in the last month of the year.
Furthermore, restructured deposits decreased during 2002 as a result of a significant number of amparo claims that were filed against the Bank by deposit holders.
Banco Galicia's estimated market share of "voluntary" deposits in the Argentine financial system only, based on daily information published by the Argentine Central Bank, increased to 4.34% as of December 31, 2002, compared to 3.83% as of June 30, 2002.
The average balance of debt securities in fiscal year 2002 was Ps. 2,568.5 million, a 12.5% decrease from fiscal year 2001. This decrease is the result of the restatement for inflation of the 2001 balances, the reclassification of debt corresponding to two commercial paper programs for a total amount of US$332.0 million into credit lines with foreign banks restructured in 2004 (and recognized in the item "Others" in the table showing the yields on average interest-earning assets and the cost of funds) and the restructuring of two notes of the New York branch for an aggregate amount of US$200.0 million, since the new securities were issued for a lower amount (US$115.8 million) as a consequence of payments made in cash and the forgiveness of debt. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Capitalization." These effects were partially offset by the fact that all of the liabilities described in this paragraph are dollar-denominated and valued at the market exchange rate.
Debt with financial institutions amounted to Ps. 2,778.7 million in fiscal year 2002. This amount mainly reflects the Bank's dollar-denominated debt with foreign financial institutions. When compared with the average balance for fiscal year 2001, total debt with financial institutions shows a 62.6% increase. This increase resulted from the increase in the market exchange rate during 2002 and from the reclassification mentioned above.
The average balance of financial assistance from the Argentine Central Bank in fiscal year 2002 amounted to Ps. 7,147.6 million, as compared with Ps. 149.7 million in fiscal year 2001. This increase was due to the fact that the Argentine Central Bank provided financial assistance to the Bank until April 2002 to counter the run on the financial system's and the Bank's deposits. The average balance of financial assistance from the Argentine Central Bank for liquidity support in fiscal year 2002 was Ps. 4,878.5 million, Ps. 484.3 million of which corresponded to a loan to pay off debt owed to the Banking Liquidity Fund. In addition, the increase results from incorporation of an average balance of Ps. 1,847.8 million corresponding to the loan to be granted to the Bank by the Argentine Central Bank to be used for the purchase of the hedge bond.
The loans from Sedesa and the FFAEFyS, which are dollar-denominated liabilities, with average balances of Ps. 158.2 million and Ps. 79.7 million, respectively, in fiscal year 2002, resulting from the implementation of the Galicia capitalization and liquidity plan, are shown under the item "Others." The average balance of other interest-bearing liabilities was Ps. 2,383.6 million in fiscal year 2002, 29.3% higher than in fiscal year 2001. The increase is primarily due to the fact that these liabilities are mainly dollar-denominated.
In fiscal year 2002, the 1,049 basis-point increase in the cost of funds was mainly the result of the increase in the cost of interest-bearing deposits and in the cost of financial assistance from the Argentine Central Bank.
Restructured deposits (CEDROs) representing deposits originally constituted in Argentina in dollars accrued the CER plus a 2.0% annual interest rate during fiscal year 2002. CEDROs originally denominated in pesos accrued an interest rate of 7.0%.
The cost of financial assistance from the Argentine Central Bank is mainly explained by the cost of the loans for liquidity support (excluding the advance received to pay off debts with the Banking Liquidity Fund), which accrued at an average interest rate of 28.25% during fiscal year 2002. The advance received to pay off the debt to the Banking Liquidity Fund accrued the principal adjustment by the CER plus an annual 3.5% interest rate. The loan to be received from the Argentine Central Bank to purchase the hedge bond accrued the CER plus an annual interest rate of 2.0%.
The increases in the cost of funds mentioned above were mitigated by the decrease in the cost of debt securities, reflecting the decrease in LIBOR and the debt reduction obtained in the restructuring of the New York branch's debt securities. In addition, the cost of dollar-denominated time deposits decreased from 8.96% in fiscal
year 2001 to 3.49% in fiscal year 2002. This reduction mainly reflects the fact that Galicia Uruguay time deposits accrued a 2.0% interest rate during 2002.
The loan from Sedesa accrued at an interest rate equal to 180-day LIBOR plus an annual 3.0%. The loan from the FFAEFyS accrued at an interest rate equivalent to 180-day LIBOR plus an annual 4.0%, with a minimum rate of 8.07% per annum.
NET FINANCIAL INCOME
Fiscal Year 2003 Compared to Fiscal Year 2002
In fiscal year 2003, our net financial income continued to be affected by the consequences of the government's measures to resolve the 2001 - 2002 crisis. Our net financial income was impacted in fiscal year 2003 by:
(i) mismatches between assets and liabilities denominated in different currencies generated by the government measures regarding asymmetric pesification of the financial system's assets and liabilities and those regarding the compensation for its effects. These measures are described elsewhere in this annual report. The Bank's inability to obtain or retain assets that accrue similar interest rates in the same currency or that are adjusted for similar indexes has resulted in significant losses for the Bank. In particular, the appreciation of the peso from Ps. 3.36 per US$1.00 as of December 31, 2002, to Ps. 2.93 per US$1.00 as of December 31, 2003, has resulted in a significant loss given the Bank's net asset position in foreign currency. However, the loss derived from the net position of the Bank in CER-adjusted assets was significantly reduced in the second quarter of fiscal year 2003 by the restructuring of the Bank's debt with the Argentine Central Bank for liquidity support into long-term CER-adjusted liabilities; and
(ii) accrual by the compensatory bond and hedge bonds, which represent most of our dollar-denominated assets, at LIBOR, which caused the yield of interest-earning foreign currency assets to be lower than the cost of interest-bearing foreign currency liabilities.
Net financial income for fiscal year 2003 was Ps. 179.0 million, and the net financial margin was 0.86%. In fiscal year 2002, net financial income was Ps. 1,237.3 million and the net financial margin was 4.59%.
In 2002, our net financial income mainly resulted from the gain generated by the revaluation of our net asset position in foreign currency from Ps. 1.00 per U.S. dollar as of December 31, 2001, to Ps. 3.36 per U.S. dollar as of December 31, 2002, partially offset by the losses generated by the mismatches between assets and liabilities denominated in pesos (net liability position) and between assets and liabilities adjusted by the CER (net asset position) and by the negative net yield of the matched positions, particularly in foreign currency.
Fiscal Year 2002 Compared to Fiscal Year 2001
The economic policy implemented by the government in 2002 meant compulsory modification as of December 31, 2001 of the terms bank assets and liabilities (including currency denomination, interest rate and maturity), and the introduction of the adjustment by the CER of the principal of the pesified assets and liabilities. As a result, the Bank's balance sheet in 2002 contained mismatches in the different segments of assets and liabilities created by the government's economic policy. Net financial income for fiscal year 2002 was the consequence of these mismatches between assets and liabilities in terms of their currency of denomination and in terms of whether they accrued only an interest rate or a fixed interest rate determined by the government plus the CER, variances in interest rate, exchange rate and the CER index over the fiscal year and the Bank's inability to hedge these mismatches.
Net financial income for fiscal year 2002 before the monetary gain or loss from financial intermediation amounted to Ps. 1,237.3 million, representing a 4.59% financial margin, lower than the 5.36% financial margin in the year ended December 31, 2001.
PROVISION FOR LOSSES ON LOANS AND OTHER RECEIVABLES
Fiscal Year 2003 Compared to Fiscal Year 2002
The provision for losses on loans and other receivables for fiscal year 2003 was substantially lower than that recorded in fiscal year 2002, amounting to Ps. 286.4 million in fiscal year 2003 compared with Ps. 1,648.5 million for fiscal year 2002.
During 2003, the Bank's loan portfolio quality improved as shown by the decrease in nonaccrual loans from 13.08% of its total loan portfolio to 10.73% of the Bank's total loan portfolio a year later. Considering loans to the private sector only, the Bank's nonaccrual portfolio as of December 31, 2003, was 31.19% of the Bank's total loan portfolio compared to 35.47% as of December 31, 2002.
The improvement in loan portfolio quality reflects the recovery of the Argentine economy during 2003 and the progress made during the year in restructuring the Bank's commercial loan portfolio.
Due to the establishment of significant loan loss allowances, mainly during 2002, the coverage of the nonaccrual loan portfolio, with allowances, reached 90.61% and the loan loss allowances as a percentage of total loans (excluding interbank loans) amounted to 9.86% as of December 31, 2003. As of December 31, 2002, these ratios were 104.45% and 13.84%, respectively. A total of Ps. 212.6 million of loans (included in the Argentine Central Bank's loan classification as category "2.b") are being restructured. The coverage of nonaccrual loans plus loans in this category with allowances for loan losses was 77.87% as of December 31, 2003.
Fiscal Year 2002 Compared to Fiscal Year 2001
Provision for losses on loans and other receivables for fiscal year 2002 reached Ps. 1,648.5 million, 63.5% higher than the Ps. 1,008.5 million in fiscal year 2001.
This increase reflects the significant deterioration in the quality of the Bank's portfolio in comparison with previous years, resulting from Argentina's unprecedented economic situation during 2002, as a result of the 2001 - 2002 crisis and the government's measures aimed at restructuring private-sector debts. Within this context, Banco Galicia increased significantly its allowance for loan losses and its coverage with allowances for its nonaccrual loan portfolio. As of December 31, 2002, the nonaccrual loan portfolio represented 13.08% of total loans and 35.46% of total loans to the private sector. Due to the establishment of significant loan loss provisions in fiscal year 2002, the allowance for loan losses amounted, as of December 31, 2002, to Ps. 1,681.8 million, 60.1% higher than as of December 31, 2001, and the coverage of the nonaccrual loan portfolio with allowances reached 104.45% at the end of fiscal year 2002 and allowances as a percentage of total loans amounted to 13.66%. The net charge to the income statement for loan losses (provisions charged to income plus direct charge-offs net of recoveries) in fiscal year 2002 amounted to 10.37% of average total loans (before the allowance for loan losses) as compared to 4.47% in fiscal year 2001.
During 2001, the Bank's asset quality had already began to deteriorate as a result of the long economic recession and its impact on large and medium corporations.
NET INCOME FROM SERVICES
Our net income from services consisted of:
GRUPO GALICIA ---------------------------------------------- FISCAL YEAR ENDED ---------------------------------------------- DECEMBER 31, ---------------------------------------------- 2003 2002 2001 ----------- --------- ------------ (in millions of (in millions of February 28, pesos) 2003, constant pesos) Income from Credit cards..................................... Ps. 260.9 Ps. 281.5 Ps. 581.0 Deposits accounts................................ 66.6 91.9 195.9 Credit-related fees.............................. 12.9 30.1 36.1 Check collection................................. 7.5 10.3 19.9 Collection services (taxes and utility bills) ... 6.6 7.0 13.9 Foreign trade.................................... 13.6 14.1 23.6 Insurance........................................ 22.0 32.8 59.9 Other (1)........................................ 41.7 48.4 226.4 --------- --------- ----------- TOTAL INCOME....................................... Ps. 431.8 Ps. 516.1 Ps. 1,156.7 TOTAL EXPENSES..................................... Ps. 70.4 Ps. 140.7 Ps. 214.1 --------- --------- ----------- NET INCOME FROM SERVICES........................... Ps. 361.4 Ps. 375.4 Ps. 942.6 --------- --------- ----------- |
(1) Includes fees from market making in government securities, investment banking activities, asset management, safe deposit boxes and cash management.
Fiscal Year 2003 Compared to Fiscal Year 2002
Net income from services amounted to Ps. 361.4 million in the 12 months of fiscal year 2003, 3.7% lower than the Ps. 375.4 million recorded in fiscal year 2002. This decrease mainly reflects service prices increasing over fiscal year 2003 by less than the WPI that affected fiscal year 2002.
Fiscal year 2003 income from credit cards of Ps. 260.9 million included Ps. 174.1 million of income from the regional credit card companies. Income from regional credit card operations for fiscal year 2003 increased 8.9% from Ps. 159.9 million for fiscal year 2002 due to a 6.5% increase in the average number of cards managed in 2003 to 1,173.7 thousand from 1,101.7 thousand in 2002 and due to significantly greater card usage in 2003. As of December 31, 2003, these companies managed 1,179.2 thousand cards.
Income from credit card operations not related to the regional credit card companies was Ps. 86.8 million. The number of cards administered by the Bank (excluding those administered by the regional credit card companies) amounted to 505.1 thousand as of December 31, 2003, compared to 498.6 thousand as of December 31, 2002. However, income from the Bank's credit card operations not related to the regional credit cards companies for fiscal year 2003 decreased 28.6% from the Ps. 121.6 million recorded in fiscal year 2002. This decrease was mainly attributable to restatement of the 2002 figures for inflation, as in nominal terms the credit card income of the Bank not related to the regional credit card companies decreased only slightly. The decrease in nominal terms was due to a 13.9% decrease in the average number of credit cards managed (from 585.3 thousand in 2002 to 503.7 thousand in 2003). This decline was partially compensated by an increase in the use of such cards. The improved performance of the credit card business of the regional companies in 2003 relative to that of the Bank is attributable to an improvement in the competitive and economic environment of the regions of Argentina in which the regional companies operate.
The following table sets forth the number of credit cards outstanding on the dates indicated:
% CHANGE -------------------------- DECEMBER 31, DECEMBER 31, --------------------------------------------- -------------------------- CREDIT CARDS (1) 2003 2002 2001 2003/2002 2002/2001 ------------ ------------- ------------- ----------- ----------- VISA........................................ 411,367 423,397 597,577 (2.84)% (29.15)% "Gold"................................... 66,303 59,547 67,047 11.35 (11.19) International............................ 218,041 231,374 301,061 (5.76) (23.15) Domestic................................. 125,832 130,081 225,136 (3.27) (42.22) "Business"............................... 1,191 2,395 4,333 (50.27) (44.73) AMERICAN EXPRESS............................ 89,294 67,254 106,543 32.77% (36.88)% "Gold"................................... 34,508 25,014 33,867 37.95 (26.14) International............................ 54,786 42,240 72,676 29.70 (41.88) MASTERCARD.................................. 4,420 7,971 24,179 (44.55)% (67.03)% "Gold"................................... 682 1,257 3,342 (45.74) (62.39) MasterCard............................... 3,738 6,714 19,868 (44.33) (66.21) Argencard................................ - - 969 - (100.00) REGIONAL CREDIT CARD COMPANIES (2).......... 1,179,192 1,097,838 1,188,739 7.41% (7.65)% Visa...................................... 368,088 426,075 332,354 (13.61) 28.20 Local Brands.............................. 811,104 671,763 856,385 20.74 (21.56) ------------- ------------- ----------- ----------- TOTAL ...................................... 1,684,273 1,596,460 1,917,038 5.50% (16.72)% AMOUNT OF PURCHASES (in millions of Feb..28, 2003, constant Pesos)....................... Ps. 2,925.7 Ps. 2,423.7 Ps. 5,044.6 20.71 (51.95) |
(1) Issued by Banco Galicia and subsidiaries.
(2) Tarjeta Naranja, Tarjeta Comfiar, Tarjetas Cuyanas, Tarjetas del Mar and Tarjetas del Sur.
(3) For the six-month period ended December 31, 2000.
The Bank's total deposit accounts amounted to 943.3 thousand as of December 31, 2003, 9.1% lower than that as of December 31, 2002.
The decrease in credit-related fees was mainly due to the decrease in the volume of loan operations during all of 2002 and 2003 and to the effect of the WPI in fiscal year 2002. Expenses from services were affected in fiscal year 2002 by a nonrecurring US$10.0 million charge in connection with the Bank's prepayment of certain structured-note transactions.
Fiscal Year 2002 Compared to Fiscal Year 2001
Net income from services reached Ps. 375.4 million in fiscal year 2002, 60.2% lower than in the fiscal year 2001. This decrease mainly reflects that fees for services did not increase in the same proportion as the price index used to restate financial statements for inflation (the WPI) and a lower level of activity.
The table above shows that the decrease in net income from services was mainly due to the decrease in fees from credit card activities, other fees and fees from deposit accounts.
Income from credit cards, totaling Ps. 281.5 million, included Ps. 159.9 million related to the regional credit card companies, which were managing 1,097.8 thousand cards as of December 31, 2002. Because of the significant decrease in overall economic activity suffered by the Argentine economy during most of 2002, that translated into higher unemployment and lower real wages and lower consumption, credit card use showed a 52.0% decline when compared with fiscal year 2001. The number of credit cards managed by these companies decreased by 7.6% in fiscal year 2002.
Excluding the regional credit card companies, the Bank's income from credit cards was Ps. 121.6 million for fiscal year 2002. Use of these cards in 2002 was 50.7% lower than in 2001. The number of credit cards managed directly by the Bank (excluding the cards of the regional companies) was 498,600 as of December 31, 2002, compared with 728,300 recorded at December 31, 2001.
The Bank's deposit accounts numbered 1.06 million as of December 31, 2002, 52.3% lower than a year earlier. This decline was due to the closing of accounts denominated in foreign currency held at the Bank in Argentina, the pesification of deposits that occurred in the financial system during the year and, to a lesser extent, the closing of accounts by customers.
The number of insurance policies (property, life and retirement) administered by the Bank was 229,000 as of December 31, 2002, as compared to 289,000 as of December 31, 2001.
The decline in credit-related fees reflects the decrease in the private-sector loan portfolio.
The decrease in other fees is related to the significant reduction in investment banking, asset management, market-making in government securities and lending to the government in fiscal year 2002.
Expenses from services included nonrecurring expenses of US$10.0 million, on account of payments in connection with structured-note transactions paid off by the Bank prior to maturity.
MONETARY LOSS FROM FINANCIAL INTERMEDIATION
Fiscal Year 2003 Compared to Fiscal Year 2002
Our monetary loss from financial intermediation amounted to Ps. 14.5 million in fiscal year 2003 compared to Ps. 1,437.7 million in fiscal year 2002. This decrease was the result of a lower increase in the WPI in fiscal year 2003 (2.03%), as compared with fiscal year 2002 (118.4%). In fact, the first half of 2002 was the period of higher inflation after the devaluation of the peso in early 2002. The monetary loss from financial intermediation represents the net effect of inflation on financial income and expenses, income and expenses from services and loan loss provisions. Monetary loss from financial intermediation plus the monetary effect on administrative expenses and on other income and expenses, represents the loss caused by the exposure of the Bank's liquid shareholders' equity (shareholders' equity less fixed assets and equity investments) to inflation, measured by the variation of the WPI.
In addition, the financial statements for fiscal year 2003 were adjusted for inflation from January 1, 2003, through February 28, 2003, only. Therefore, in addition to reflecting the substantial decrease in inflation between both periods, monetary loss from financial intermediation for year 2003 included only two months of adjustment.
No monetary loss was recorded prior to 2002, as the adjustment for inflation was not applicable at that time.
ADMINISTRATIVE EXPENSES
The following table sets forth components of our administrative expenses:
GRUPO GALICIA ----------------------------------------------------------- FISCAL YEAR ENDED ----------------------------------------------------------- DECEMBER 31, ----------------------------------------------------------- 2003 2002 2001 --------------------- --------- ------------ (in millions of February 28, 2003, (in millions of pesos) constant pesos) Salaries and social security contributions....... Ps. 198.3 Ps. 435.3 Ps. 597.4 Property-related expenses........................ 70.1 100.0 124.3 Personnel services............................... 15.7 23.6 54.5 Advertising and publicity........................ 20.0 15.3 54.6 Amount accrued in relation to directors' and syndics' compensation.......................... 1.9 3.2 35.4 Electricity and communications................... 27.2 42.5 70.3 Taxes............................................ 29.8 57.8 84.5 Other............................................ 200.4 269.8 348.9 --------- --------- ----------- TOTAL ........................................... Ps. 563.4 Ps. 947.5 Ps. 1,369.9 --------- --------- ----------- |
Fiscal Year 2003 Compared to Fiscal Year 2002
Administrative expenses amounted to Ps. 563.4 million in fiscal year 2003, 40.5% lower than the Ps. 947.5 million recorded in fiscal year 2002.
This decrease shows the full impact of the significant efforts made by the Bank during 2002 to streamline its operational structure and reduce its administrative expenses within the framework of the Galicia capitalization and liquidity plan. This process was mainly concentrated in the second half of fiscal year 2002. Between December 31, 2001, and December 31, 2003, the number of branches in the Bank's branch network fell by 62; 61 branches were closed in fiscal year 2002. The Galicia Ahora service centers were closed, and their activity was consolidated into the branch network mainly during the second quarter of 2002.
In addition, the Bank's staff, excluding staff of consolidated companies, decreased by 226 employees between December 31, 2002 and 2003, a 5.6% decrease from the December 31, 2002, level. In fiscal year 2002, the Bank's staff, excluding staff of consolidated companies, decreased by 1,804 employees through voluntary retirement plans. Consolidated companies' staff increased by 24 employees, or 1.2%, during fiscal year 2003. Moreover, during 2002, the Bank renegotiated all of its leases and supply contracts. Expenses related to salaries and social security contributions totaled Ps. 198.3 million in fiscal year 2003, 54.4% lower than in the previous period. This decrease was due to the decrease in staff.
Remaining administrative expenses totaled Ps. 365.1 million in fiscal year 2003, 28.7% lower than the Ps. 512.2 million of the prior fiscal year. All components of the remaining administrative expenses showed a decrease as a consequence of the cost-reduction initiatives implemented by the Bank, except for advertising and publicity, which increased by 30.7%.
Fiscal Year 2002 Compared to Fiscal Year 2001
In fiscal year 2002, administrative expenses totaled Ps. 947.5 million, 30.8% lower than the Ps. 1,369.9 million recorded in fiscal year 2001.
In fiscal year 2002, Banco Galicia made significant progress in streamlining its organizational structure and administrative expenses in order to adapt to a context that had radically changed. This process mainly took place during the second half of the year. The Bank reduced its branch network in Argentina by 61 branches, equivalent to 21.1% of those existing as of December 31, 2001, and the Galicia Ahora service centers were closed and their
activity was consolidated into the branch network. Similarly, through voluntary retirement plans, the Bank's staff, excluding staff of consolidated companies, decreased by 1,804 people, or 30.7%, from December 31, 2001. During fiscal year 2002, the staff of companies consolidated by the Bank decreased by 581 employees, or 23.0%, as compared to fiscal year 2001, mainly representing a reduction in the regional credit card companies' staff. In addition, these companies also reduced their distribution network by 16 service centers, 15.5% of those existing as of December 31, 2001. Moreover, the Bank renegotiated all of its leases and supply contracts.
Expenses related to salaries and social security contributions totaled Ps. 435.3 million, 27.1% lower than in fiscal year 2001. This amount includes Ps. 130.0 million on account of restructuring charges. Net of that amount, personnel expenses for the period amounted to Ps. 288.2 million, 50.1% lower than in 2001. This decrease was partially due to restating the fiscal year 2001 amounts for inflation.
Excluding salaries and social security contributions, remaining administrative expenses totaled Ps. 512.2 million, 33.7% lower than in fiscal year 2001. All components of this category suffered reductions. Personnel services and directors' and syndics' fees were the items showing the greatest percentage declines.
The effect of inflation was a Ps. 21.0 million gain. Net of this gain, administrative expenses amounted to Ps. 926.5 million, 32.4% lower than the Ps. 1,369.9 million of fiscal year 2001.
INCOME/(LOSS) FROM EQUITY INVESTMENTS
In fiscal year 2003, we recorded a Ps. 22.6 million loss from equity investments as compared to a loss of Ps. 52.0 million recorded in fiscal year 2002. The loss in fiscal year 2003 was mainly due to losses recorded by Aguas Argentinas S.A. (Ps. 8.8 million), Tradecom International (Ps. 6.5 million), Camino de las Sierras S.A. (Ps. 2.3 million) and Aguas Cordobesas S.A. (Ps. 0.9 million) .
In fiscal year 2002, we recorded a loss from equity investments of Ps. 52.0 million. This loss was mainly due to losses recorded by Aguas Argentinas (Ps. 25.5 million), Aguas Provinciales de Santa Fe S.A. (Ps. 17.5 million) and Aguas Cordobesas (Ps. 6.9 million).
In fiscal year 2001, income from equity investments was Ps. 35.0 million. This amount included Ps. 26.2 million in income from the sale of the Bank's stake in Banco Barclays e Galicia S.A., Ps. 9.7 million in income from Galicia Capital Markets S.A. and Ps. 5.7 million in income from Banelco S.A. In addition, a Ps. 4.8 million dividend from Aguas Argentinas and a Ps. 12.6 million loss from Correo Argentino S.A. were also included in this amount.
MISCELLANEOUS INCOME (LOSS), NET
During fiscal year 2003, miscellaneous income, net (excluding the associated monetary loss), amounted to Ps. 143.0 million compared to a Ps. 429.6 million loss in fiscal year 2002. The gain recorded in fiscal year 2003 was mainly due to a net reversal of allowances for loan losses and other contingencies in the amount of Ps. 185.4 million and to loan recoveries for Ps. 40 million. This income was partially offset by the application of the provisions of Argentine Central Bank Communique "A" 3916, which established that the deferred loss associated with the repayment by the Bank of restructured deposits in their original currency or at the peso equivalent amount at the market exchange rate (as a consequence of amparo claims) had to be amortized beginning in April 2003, in 60 monthly consecutive installments. This amortization totaled Ps. 77.9 million for the period from April 2003 to December 2003.
In fiscal year 2002, the loss was mainly the result of the establishment of allowances for contingencies related to the Bank's interests in nonfinancial companies, the amortization of certain goodwill and the coverage of all estimated restructuring expenses.
In fiscal year 2001, miscellaneous net income amounted to Ps. 386.0 million, Ps. 342.8 million higher than the annualized net income of Ps. 43.2 million recorded in the second half of 2000. In fiscal year 2001, miscellaneous net income principally included Ps. 289.3 million of income from government securities that overcollateralized
repurchase transactions and Ps. 114.6 million corresponding to the reversal of income tax provisions. These income tax provisions had been established in order to afford income tax payments that could become due on income that might be generated as a result of the difference between the market value and the book value of government securities held in the investment account. Given that these government securities were exchanged for secured loans with no quotation in November 2001, the provision was reversed.
LOSS ABSORPTION
Argentine Central Bank Communique "A" 3800 offered financial institutions the option to absorb losses recorded during fiscal year 2002 with and up to amounts recorded under the shareholders' equity accounts "Retained Earnings" and "Unrealized Valuation Difference," subject to the approval by their boards of directors and shareholders. The annual meeting of the Bank's shareholders, held on April 30, 2003, approved the absorption by the Bank of the amounts mentioned in the paragraph below.
Under "Absorption subject to the approval of the shareholders' meeting," Ps. 1,370.0 million are shown, equivalent to 93.59% of Banco Galicia's gain from the revaluation of its net asset foreign currency position as of December 31, 2001, from Ps. 1.00 to Ps. 1.40 per US$1.00. This gain amounted to Ps. 1,463.9 and was recorded by the Bank under the shareholders' equity account "Unrealized Valuation Difference" in accordance with Argentine Central Bank Communique "A" 3703. This amount, together with Ps. 353.7 million in retained earnings, was used by the Bank to absorb losses for the same amount.
We absorbed losses for Ps. 1,370.0 million recorded as "Unrealized Valuation Difference" since we did not have retained earnings.
INCOME TAX
In fiscal year 2003, income tax expense amounted to Ps. 0.6 million.
In fiscal year 2002, income tax expense amounted to Ps. 66.4 million. This expense is mainly due to the holding company beginning to apply the deferred tax method in 2002. This implied the recognition of a deferred liability of Ps. 54.2 million and an income tax expense for the same amount. The tax provision of the holding company was Ps. 5 million while the remaining income tax expense was mainly due to the charges recorded by Galicia Factoring y Leasing S.A. (Ps. 1.8 million) and Galicia Valores S.A. (Ps. 3.4 million).
During fiscal year 2002, the variation in our shareholders' equity was Ps. 1,464.8 million, while the reported net loss was Ps. 1,471.5 million. The Ps. 6.7 million difference is due to the fact that we began to apply the deferred tax method in 2002, which implied the recognition of an adjustment to the previous fiscal year's results for the same amount.
In fiscal year 2001, the income tax expense totaled Ps. 159.1 million, which represented an annual effective tax rate of 37.6%. The annualized income tax charge for the second half of 2000 was Ps. 230.7 million, representing an annual effective rate of 36.8%.
U.S. GAAP AND ARGENTINE BANKING GAAP RECONCILIATION
GENERAL
We prepare our financial statements in accordance with Argentine Banking GAAP. The more significant differences between Argentine Banking GAAP and U.S. GAAP relate to the determination of the allowance for loan losses, the carrying value of certain government securities and receivables for government securities and recognition of deferred income taxes. For more detail on differences in accounting treatment between Argentine Banking GAAP and U.S. GAAP through December 31, 2003, see note 39 to our consolidated financial statements.
The differences mentioned above do not include the reversal of the adjustments to the financial statements for the effects of inflation required under Argentine Banking GAAP, which were applicable mostly during 2002, as
the application of inflation accounting represents a comprehensive measure of the effects of price-level changes in the Argentine economy and, as such, is considered a more meaningful presentation than historical-based financial reporting for U.S. GAAP purposes.
ALLOWANCES FOR LOAN LOSSES
With respect to the determination of the allowance for loan losses, Banco Galicia follows the rules of the Argentine Central Bank. Under these rules, reserves are based on minimum reserve requirements established by the Argentine Central Bank. U.S. GAAP requires that an impaired loan be generally valued at the present value of expected future cash flows discounted at the loan's effective rate or at the fair value of the collateral if the loan is collateral dependent.
For the purposes of analyzing its loan loss reserve under U.S. GAAP, Banco Galicia divides its loan portfolio into performing and nonperforming commercial and consumer loans.
Performing Commercial and Consumer Loans
Performing loans are considered to be loans that are classified under the Argentine Central Bank classification guidelines as:
- "Normal" and "Normal Performance"
- "Potential Risk" and "Improper Fulfillment"
Banco Galicia performs analyses of historical losses from its performing commercial and consumer loan portfolios in order to estimate losses for U.S. GAAP purposes resulting from loan losses that had been incurred in the performing loan portfolio at the balance sheet date but which had not been individually identified.
Banco Galicia estimates that, on average, it takes a period of up to one year between the trigger of an impairment event and the identification of a loan as being a probable loss. Therefore, Banco Galicia has concluded that the losses incurred by the performing loan portfolio over the next year give a basis for estimating the amount of loss at the balance sheet date. The Bank has collected data on the amounts of losses that had been incurred on commercial loans and consumer loans that were performing one year before. Using this data, the range of estimated default probabilities and estimated losses given default yield the following estimated SFAS 5 reserve for the performing commercial and consumer loan portfolio:
DECEMBER 31, 2003 DECEMBER 31, 2002 DECEMBER 31, 2001 ----------------- ----------------- ----------------- HIGH LOW HIGH LOW HIGH LOW ---- --- ---- --- ---- --- (in millions of pesos) (in millions of February 28, 2003 constant pesos) Performing Commercial Loans..... 215.2 24.4 242.9 19.1 288.7 28.2 Performing Consumer Loans....... 23.2 20.0 111.3 102.4 207.6 183.2 ===== ==== ===== ===== ===== ===== |
Nonperforming Consumer Loan Portfolio
The nonperforming consumer loan portfolio is comprised of loans falling into the following classifications of the Argentine Central Bank:
- "Defective Fulfillment"
- "Difficulty in Recovery"
- "Uncollectible"
For these loans, Banco Galicia has developed a range of loss projections based on the default experience of nonperforming loans. Based on this data, Banco Galicia has calculated a range of estimated loan losses for nonperforming consumer loans:
DECEMBER 31, 2003 DECEMBER 31, 2002 DECEMBER 31, 2001 ----------------- ----------------- ----------------- HIGH LOW HIGH LOW HIGH LOW ---- --- ---- --- ---- --- (in millions of pesos) (in millions of February 28, 2003 constant pesos) Non-Performing Consumer Loans... 84.6 74.4 Ps.248.7 Ps.228.4 Ps.389.2 Ps.333.5 ==== ==== ======== ======== ======== ======== |
Nonperforming Commercial Loans
The nonperforming commercial loan portfolio is comprised of loans falling into the following classifications of the Argentine Central Bank:
- "With Problems"
- "High Risk of Insolvency"
- "Uncollectible"
For such nonperforming commercial loans, Banco Galicia applied the procedures required by SFAS 114.
For loans that were not collateral dependent, the expected future cash flows to be received from the loans were discounted using the interest rate at each balance sheet date for variable loans. Loans that were collateral dependent, and for which there was an expectation that the loan balance would be recovered via the exercise of collateral, were valued using the fair value of the collateral. In addition, in order to assess the fair value of collateral, Banco Galicia has discounted collateral valuations due to the extended period of time that it can take to foreclose assets under the Argentine judicial system.
Summary
The following table identifies the high and low of loan loss reserves for the periods indicated.
DECEMBER 31, 2003 DECEMBER 31, 2002 DECEMBER 31, 2001 ----------------- -------------------------------------- HIGH LOW HIGH LOW HIGH LOW ---- --- ---- --- ---- --- (in millions of pesos) (in millions of February 28, 2003 constant pesos Performing Commercial Loans........... Ps. 215.2 Ps. 24.4 Ps. 242.9 Ps. 19.1 Ps. 288.7 Ps. 28.2 Performing Consumer Loans............. 23.2 20.0 111.3 102.4 207.6 183.2 Non-Performing Consumer Loans......... 84.6 74.4 248.7 228.4 389.2 333.5 Non-Performing Commercial Loans....... 953.7 953.7 1,031.5 1,031.5 1,208.1 1,208.1 ----------- ----------- ------------ ----------- ----------- ----------- TOTAL................................. Ps. 1,276.7 Ps. 1,072.5 Ps. 1,634.4 Ps. 1,381.4 Ps. 2,093.6 Ps. 1,753.0 ----------- ----------- ------------ ----------- ----------- ----------- LOAN LOSS RESERVE UNDER U.S. GAAP..... Ps. 1,117.2 Ps. 1,634.0 Ps .1,944.6 =========== =========== =========== |
As of December 31, 2001, Banco Galicia expected that the loan loss reserve under U.S. GAAP would fall more toward the midpoint of the range after the charge-offs of accumulated unsecured consumer loans and the increase of the loan loss reserve under FAS 114 of the impaired loans. As of December 31, 2002, Banco Galicia expected that the loan loss reserve under U.S. GAAP would fall more toward the high end of the range due to the significant uncertainties associated with the Argentine economic crisis. The reserve under U.S. GAAP would be in that range due to the recording of substantial losses caused by the situation in Argentina in 2002, partially offset by the decrease of the loan loss reserve of the impaired loans under FAS 114 due to the effect of inflation. As of December 31, 2003, the Banco Galicia expected that that the loan loss reserve under U.S. GAAP would fall more toward the midpoint of the range after the charge-offs of accumulated unsecured consumer loans and the increase of the loan loss reserve under FAS 114 of the impaired loans.
In addition to assessing the reasonableness of the loan loss reserve as described above, Banco Galicia makes an overall determination of adequacy of each period's reserve based on such ratios as:
- Loan loss reserves as a percentage of nonaccrual loans
- Loan loss reserves as a percentage of total amounts past due
- Loan loss reserves as a percentage of past-due unsecured amounts.
DECEMBER 31, 2003 DECEMBER 31, 2002 DECEMBER 31, 2001 ----------------- ----------------- ----------------- Loan loss reserves as a percentage of nonaccrual loans..................... 85.98% 101.48% 136.89% Loan loss reserves as a percentage of total amounts past due............... 110.50 133.65 185.93 Loan loss reserves as a percentage of past-due unsecured amounts........... 310.59 271.97 334.41 ====== ====== ====== |
CARRYING VALUE OF CERTAIN GOVERNMENT SECURITIES AND RECEIVABLES FOR GOVERNMENT SECURITIES
During the fiscal year ended December 31, 2001, and as a consequence of Decree No. 1387/01, the Bank swapped, effective as of November 6, 2001, its Argentine government debt instruments, under the promissory note/bond program of the Argentine government. In accordance with this decree, the conversion for Argentine Banking GAAP purposes was made at the nominal value, at a rate of exchange of Ps.1.0 per US$1.00 and in the same currency as that of the converted obligation. The Argentine Central Bank provided that the difference between the nominal value of the secured loans and the book value of the instruments exchanged (in the case of securities, classified and valued as "investment accounts" or "for trading purposes," under Argentine Central Bank rules) must be credited to income and added to the recorded amount included in "Loans to the Non-Financial Public Sector" on a monthly basis in proportion to the term of each of the secured loans received.
In accordance with U.S. GAAP, satisfaction of one monetary asset (in this case, a debt security) by the receipt of another monetary asset (in this case, a secured loan) for the creditor is generally based on the market value of the asset received in satisfaction of the debt. In this particular case, the secured loan being received was significantly different in structure and in interest rates than the debt securities swapped. Therefore, the fair value of the loans was determined on the balance sheet date based on the contractual cash flows of the loan received discounted at an estimated market value. The estimated fair value of the loan received constitutes the cost basis of the asset. The difference between the cost basis and amounts expected to be collected is amortized on an effective yield basis over the life of the loan.
In addition, the Bank had offered to exchange its loans to Argentine provincial governments for secured loans pursuant to the same decree. Subsequently, pursuant to Decree No. 1579/02 of August 28, 2002, the Bank tendered its portfolio of loans to Argentine provincial governments for secured loans issued by the FFDP with different terms and conditions. This swap had not been completed at the date of preparation of the audited consolidated financial statements as of December 31, 2002, included in this annual report. The Bank had other loans to the Argentine provincial public sector that, in addition to the loans already mentioned, were considered to be impaired under U.S. GAAP in accordance with Statement of Financial Accounting Standards No. 114 as of that date. Accordingly, the Bank established an allowance for loan losses on loans to the Argentine provinces. In 2003, the Bank completed the exchange of Argentine provincial government loans for bonds issued by the Argentine national government (BOGAR). The Bank requested that the financial instrument it received be Argentine national government secured loans (promissory notes) with the same duration and maturity as the BOGAR. This exchange has been accounted for similar to the 2001 swap, with the securities received (BOGAR) valued at estimated market value upon receipt.
Government securities and certain other securities that are included under investment accounts under Argentine Central Bank rules are considered as available for sale under U.S. GAAP.
The compensatory bonds received or receivable by the Bank and the compensation to be received in connection with asymmetric indexation should initially be recognized at its market value, limited to the amounts of the loss suffered by the Bank in connection with asymmetric pesification (i.e., the loss generated by the pesification of certain assets at Ps. 1.0 per US$1.00 and of certain liabilities at Ps. 1.40 per US$1.00) and with asymmetric indexation (i.e., the loss generated by the adjustment of the principal of certain assets by the variation of the CVS index, which was 16.81% in 2002 and 2003, and of the principal of certain liabilities by the variation of the CER
index, which was 45.67% over the same period). After receipt, the compensatory bond would be classified as an available for sale security and recognized at market with the unrealized gain or loss recognized as a charge or credit to equity through other comprehensive income. In connection with estimating the fair value of the compensatory bond and of the compensation for asymmetric indexation, the Bank used quoted market values. There has been low volumes of activity in the trading of these securities. Therefore, the quoted market values may not represent the price of an actual sale between a willing buyer and a willing seller.
In connection with the Bank's right (but not its obligation) to purchase the hedge bond, under Argentine Banking GAAP, the Bank has recognized the right to purchase the hedge bond (BODEN 2012) at its equivalent value as if the Bank had the associated bond in its possession, and recognized the associated liability to fund the hedge bond as if the Bank had executed the debt agreement with the Argentine Central Bank. The receivable is denominated in U.S. dollars and bears interest at Libor, while the liability to the Argentine Central Bank is denominated in pesos and accrues interest at CER plus 2.0%, each retroactive to February 3, 2002.
Under U.S. GAAP, the right to purchase the hedge bond is not considered an asset under Financial Accounting Standards Board Statement of Financial Accounting Concepts No. 6, Elements of Financial Statements. Under this concepts statement, assets are defined as "... probable future economic benefits obtained or controlled by an entity as a result of past transactions or events." In addition, one of the three essential characteristics of an asset is that an entity can obtain the benefit and can control others' access to it. As of December 31, 2003, and as of December 31, 2002, the Bank could not obtain the benefit of the hedge bond until the transaction is approved by the Argentine Central Bank and the Bank remits funds to the Argentine Central Bank. The liability under U.S. GAAP would be recognized when the Bank actually enters into the financing arrangement.
As of December 31, 2003, under Argentine Banking GAAP, the Bank had recorded under "Intangible Assets" the difference arising from the reimbursement of restructured deposits at the market exchange rate pursuant to amparo claims and the carrying value of these restructured deposits for Ps. 487.0 million. As of December 31, 2002, the value of this difference was Ps. 446.8 million, which had been recorded by the Bank under Argentine Banking GAAP under "Other Receivables from Financial Brokerage." The receivable for differences related to amparo claims does not represent an asset under U.S. GAAP.
FOREIGN CURRENCY TRANSLATION
With respect to foreign currency exchange differences, the official exchange rate between the U.S. dollar and the Argentine peso in Argentina was one-to-one as of December 31, 2001. This rate was used to translate all U.S. dollar - denominated assets and liabilities as of December 31, 2001 for Argentine GAAP purposes. For U.S. GAAP purposes, foreign currency transactions should be translated at the applicable rate at which those particular transactions could be settled at the balance sheet date. In anticipation of an announced devaluation, "exchange houses" in Argentina (used for limited personal transactions and not for settling business transactions) started exchanging dollars at 1.40 or more pesos to the dollar prior to December 31, 2001. Such exchange houses were closed as of December 31, 2001. Through January 10, 2002, no transactions were conducted in U.S. dollars and there was no exchangeability between the peso and the dollar. Under Statement of Accounting Standards No. 52, if the exchangeability between two currencies is temporarily lacking at the balance sheet date, the first subsequent rate at which exchanges can be made is used for translating foreign currency transactions. In this case, the January 11, 2002, exchange rate of Ps. 1.60 per US$1.00 was the first available rate after year-end. Thus, that rate was used for U.S. GAAP purposes to translate U.S. dollar - denominated assets and liabilities as of December 31, 2001.
In addition, Banco Galicia's equity holdings in Argentine companies were similarly adjusted under U.S. GAAP for the proportional effect of applying the Ps. 1.60 per US$1.00 exchange rate to the U.S. dollar - denominated assets and liabilities of such companies as of December 31, 2001.
For subsequent years, market exchange rates were used, with no differences arising between Argentine Banking GAAP and U.S. GAAP.
Under Argentine Banking GAAP, certain costs such as set-up costs for branches, termination costs, and Year 2000 compliance costs are deferred and amortized. Under U.S. GAAP, these costs are expensed as incurred.
FINANCIAL GUARANTEES
Effective January 1, 2003, we adopted FASB Interpretation No. 45, "Guarantor's Accounting and Disclosures Requirements for Guarantees, including Indirect Guarantees of Indebtedness of Others." As of December 31, 2003, the Bank recognized a liability for the fair value of the obligations assumed.
As of December 31, 2003, we maintained the following guarantees, which arise from the Bank's operations:
ESTIMATED MAXIMUM PROCEEDS CARRYING POTENTIAL FROM COLLATERAL AMOUNT PAYMENTS RECOURSE LIABILITY --------- --------------- --------- IN MILLIONS OF PESOS Exchange of deposits with the financial system II Ps. 165.4 - Ps. 69.7 Other financial guarantees 44.4 Ps. 3.0 11.7 --------- ------- --------- TOTAL Ps. 209.8 Ps. 3.0 81.4 ========= ======= ========= |
The maximum potential payments represent a "worse-case scenario" and do not necessarily reflect expected results. Estimated proceeds from collateral and recourse represent the anticipated value of assets that could be liquidated or received from other parties to offset our payments under guarantees.
SUBSEQUENT EVENTS
For purposes of U.S. GAAP, the following events constitute subsequent events:
- The restructuring of the financial assistance for liquidity support granted to the Bank by the Argentine Central Bank for a principal amount of Ps. 5,647.1 million as of December 31, 2003, which was completed on February 3, 2004.
- The restructuring of the foreign debt of the Bank's head office in Argentina and its Cayman branch, the principal amount subject to restructuring being US$1,349.6 million as of December 31, 2003, and US$1,344.7 million as of the expiration date of the restructuring.
Financial Assistance Granted by the Argentine Central Bank for Liquidity Support
In connection with the liquidity crisis in Argentina, the Argentine Central Bank loaned Banco Galicia approximately Ps. 5.4 billion as of December 31, 2002. This loan was renewed monthly, with interest payable based on 64% of the 30-day Lebac rate (short-term government rate).
In order to be eligible for maturity extension, the financial institution had to identify and pledge collateral that matched the cash requirements of the outstanding loan and present its foreign debt restructuring proposal to the Argentine Central Bank before July 31, 2003. Each of these submissions had to be approved by the Argentine Central Bank. Subsequently, the Argentine Central Bank amended the restructuring plan allowing the maturity date to be extended up to 120 months, subject again to providing acceptable collateral that matched the cash requirements of the outstanding loan and to the financial institution presenting an update of its foreign debt restructuring proposal. Moreover, each of these submissions was again subject to approval by the Argentine Central Bank.
On November 28, 2003, the Financial System's Restructuring Unit (Unidad de Reestructuracion del Sistema Financiero), the regulatory body responsible for restructuring the Argentine financial system after the 2001 - 2002 crisis, informed the Bank that it had authorized the Argentine Central Bank to extend the maturity of the Bank's debt with the Argentine Central Bank for liquidity support by up to 120 monthly installments in accordance with the repayment schedule presented by the Bank to the Argentine Central Bank and under the provisions of Decree No. 1262/03.
On December 3, 2003, the Argentine Central Bank informed the Bank that, through its Resolution No. 460/03, its board of directors had approved the terms and conditions of the proposed restructuring of the foreign debt of the Bank's head office and its Cayman branch.
On February 3, 2004, the Argentine Central Bank informed the Bank that it had approved the request made by the Bank under Decree No. 739/03 (modified by Decree No. 1262/03) for the repayment of the debt for liquidity support under the terms proposed by the Bank over a 92-month period.
For U.S. GAAP purposes, the accounting for this transaction is effective with the approval by the Argentine Central Bank on February 3, 2004. The Bank's schedule comprises the repayment of the debt in 92 monthly installments beginning in March 2004, with a fixed annual interest rate of 3.5%.
Although this is a 2004 transaction, based on facts and circumstances, the financial assistance granted by the Argentine Central Bank was deemed to be a nontroubled debt restructuring since there are no concessions granted to the Bank based on the guidelines established by EITF 02-4 and FAS 15. Accordingly, the Bank followed EITF 96-19 to account for this restructuring, and no gain or loss was recognized in the transaction.
Under Argentine Banking GAAP, the restructuring was accounted for the period ended December 31, 2003, and no gain or loss was recognized in the transaction.
Restructuring of the Foreign Debt
On May 18, 2004, the restructuring of the foreign debt of the Bank's head office in Argentina and its Cayman branch was completed. At the expiration date of the exchange offer made by the Bank to carry out the restructuring, the aggregate principal amount of the Bank's debt subject to the restructuring amounted to US$1,344.7 million. The Bank offered different options to restructure its debt including the payment of cash, the exchange of cash or BODEN 2012 as full consideration of debt, the issuance of new debt with different features and maturities and the issuance of our preferred shares. Management is presently evaluating the impact of the restructuring under U.S.
GAAP.
SUMMARY
As a result of the above and other differences, net income and shareholders' equity for Banco Galicia under Argentine Banking GAAP and U.S. GAAP for the periods indicated were as follows:
NET INCOME (LOSS) SHAREHOLDERS' EQUITY (DEFICIT) ----------------------------- -------------------------------- ARGENTINE BANKING ARGENTINE BANKING GAAP U.S. GAAP GAAP U.S. GAAP ----------------- --------- ----------------- ------------ (in millions of pesos) Fiscal year 2003......... Ps. (217.1) Ps. 731.3 Ps. 1,462.3 Ps. (4,453.3) (in millions of February 28, 2003 constant pesos) Fiscal year 2002......... (1,471.5) 422.5 1,638.7 (5,422.3) Fiscal year 2001......... 264.6 (8,638.4) 3,103.5 (5,887.8) |
The significant differences that result between net income under U.S. GAAP and that under Argentine Banking GAAP primarily reflect that under U.S. GAAP:
- significant losses were recognized in 2001 from the effects of several government actions reflected at the end of that year. With the improvement in the Argentine economy and business environment, changes in estimated losses are reflected in 2002 and 2003.
- the recording of the effects of the right to receive the hedge bond are not recognized, the effect of which varies significantly in 2002 and 2003.
- the amounts receivable for the compensatory bond are reflected at market values with changes in values being recognized in the income statement, the effect of which varies significantly in 2002 and 2003.
- much of the national and provincial public-sector debt balances reflect market-value adjustments recognized from exchange transactions. Accretion of the discount, considering the amounts estimated to be collected, are recognized as income after the exchange transaction occurs.
- the effect of the change in the Argentine peso exchange rate at the end of 2001 is reflected in that year.
RESULTS BY SEGMENTS
GENERAL
Banco Galicia is our most significant subsidiary. We also have an 87.5% direct interest in Sudamericana Holding S.A. (in which Banco Galicia holds a 12.5% stake), an 87.5% direct participation in Net Investment S.A. (Banco Galicia owns the remaining 12.5% stake) and an 87.5% direct interest in Galicia Warrants S.A., where Banco Galicia holds the other 12.5%. On September 19, 2001, we increased our participation in Sudamericana Holding S.A. to 87.5% from 37.5%, obtaining control of Sudamericana Holding S.A. During 2001, we also acquired 87.5% of Galicia Warrants.
Grupo Galicia's main segments are:
- the "Grupo Galicia" segment showing the holding company's specific income and expenses not attributable to its investments in subsidiaries, except for goodwill amortization;
- the "Insurance" segment, corresponding to Sudamericana Holding's consolidated results of operations (including the 12.5% interest owned by the Bank);
- the "Other Grupo's Businesses" segment representing the results of operations of Net Investment S.A. consolidated and Galicia Warrants S.A. (in both cases, including the results of the 12.5% interests of the Bank); and
- Banco Galicia's operating segments (see below).
Our results by segment are shown in note 36 to our audited consolidated financial statements. The column "Corporate Adjustments" comprises intercompany transactions between Grupo Galicia and its consolidated subsidiaries that are eliminated in our consolidated income statement and the results corresponding to minority interests in Banco Galicia. For fiscal year 2002, this column also includes the loss absorption made by Grupo Galicia. See " -- Results of Operations of Grupo Galicia for the Fiscal Years Ending December 31, 2003, December 31, 2002 and December 31, 2001 -- Loss Absorption."
The operating segments employed by Banco Galicia's management for operating decisions and for assessing performance are based on the following criteria:
- the geographical location of each branch or business, or "unit";
- the similarity of the businesses conducted with or the services provided to Banco Galicia's customers; and
- the existence of homogeneous groups of customers to which products and services are provided.
Banco Galicia's operating segments are:
Buenos Aires Metropolitan Branches -- corresponds to business conducted with customers in branches located in the Federal District and the greater Buenos Aires area.
Rest of the Country Branches -- corresponds to business conducted with customers in branches located in Argentina but outside the Federal District and the greater Buenos Aires area.
Home Office -- corresponds to business conducted with customers in Banco Galicia's home office and with the national and provincial public sectors.
Regional Credit Cards -- corresponds to the results from Banco Galicia's investments in the operating regional credit card companies and Tarjetas Regionales S.A (the holding company for the regional credit card companies).
International -- corresponds to the business of Galicia Uruguay, Banco Galicia's foreign branches and other international subsidiaries.
Other Financial Businesses -- corresponds to the business of Galicia Capital Markets S.A., Galicia Valores S.A., Agro Galicia S.A. and Galicia Factoring y Leasing S.A. In addition, this segment includes the results of the equity investments of the Bank in financial-related companies not required to be consolidated in which the Bank holds minority interests.
Other Equity Investments -- corresponds to Banco Galicia's participation in various infrastructure and public utility services companies.
The net financial income of each unit is determined based on the financial income and financial expenses generated by the assets and liabilities located in each unit and through the use of transfer prices to compensate the lending unit and to charge the borrowing unit, based on Banco Galicia's average margin by currency and type of funds for the same period. Each unit is also allocated its income from services, provisions for loan losses and other income generated by the assets managed by such unit.
The distribution of administrative expenses is made based on the information arising from the cost system, which gathers the allocation of the expenses by unit from the accounting system and appropriates to each unit the cost of the support provided by the rest of the organization.
Below is a discussion of our results of operations by segment for the years ended December 31, 2003, 2002 and 2001, based on the existing Grupo Galicia and Banco Galicia segments.
RESULTS BY SEGMENTS FOR THE FISCAL YEAR ENDING DECEMBER 31, 2003
Grupo Galicia -- This segment, which comprises only the holding company itself, posted a net loss of Ps. 20.1 million in fiscal year 2003, mainly due to a Ps. 18.1 million net financial loss mainly attributable to the revaluation of Grupo Galicia's US$43 million holdings of dollar-denominated Galicia Uruguay negotiable obligations, from Ps. 3.36 per U.S. dollar as of December 31, 2002, to Ps. 2.93 per U.S. dollar as of December 31, 2003.
Insurance -- The insurance segment showed a Ps. 7.9 million net loss, mainly due to: (1) the recording of earnings for Ps. 16.5 million from premiums earned and other net charges; (2) the payment of claims in the amount of Ps. 12.8 million; (3) a Ps. 14 million loss from other income, which was in turn mainly due to a Ps. 12.9 million increase in the amounts to be paid to Galicia Retiro's customers in accordance with the plan previously agreed with its customers to restructure its dollar-denominated annuities, (4) administrative expenses of Ps. 15.6 million; (5) a Ps. 3.1 million net loss from services mainly reflecting acquisition costs and (6) a Ps. 11.7 million loss from inflation adjustment. These losses were partially offset by a Ps. 33.2 million net financial income attributable to gains resulting from the pesification of liabilities, CER adjustments and interest earned on deposits, government securities and secured loans, net of interest on negotiable obligations.
Other Grupo Businesses -- This segment, showing the results of Net Investment S.A. and Galicia Warrants S.A., posted a Ps. 5.5 million net loss. The negative results of this segment were attributable to Net Investment. Galicia Warrants' net income amounted to Ps. 0.5 million in the 12 months ended December 31, 2003. Galicia Warrants' net income was affected by a Ps. 0.4 million loss resulting from the appreciation of the exchange rate during 2003. Net Investment showed a Ps. 6.1 million loss in fiscal year 2003, mainly due to the poor performance of its operating subsidiaries, which generated a Ps. 3.0 million loss from equity investments, and due to the establishment by the company of a Ps. 3.3 million valuation reserve on its interest in its subsidiary Tradecom International.
The results of the segments relating to the breakdown of the Bank's operations were as follows:
Buenos Aires Metropolitan Branches and Rest of the Country Branches -- In aggregate, these two segments which recorded similar behaviors, showed a Ps. 84.1 million loss (Ps. 39.3 million and Ps. 44.8 million, respectively). These segments' net losses were the consequence of low net financial income, as in the previous fiscal year, and lower net fee income, which were not offset by lower administrative expenses.
These segments' net financial income was affected by a significant decrease in average loans (the branches' loan portfolio is mainly comprised of loans to the private sector, which decreased in average from Ps. 3,524.8 million to Ps. 1,917.3 million for the two segments in aggregate in 2003); a decrease in average deposits from Ps. 3,468.1 million to Ps. 3,092.5 million. The decrease in average deposits was attributable to the same reasons that accounted for the strong decrease in the Bank's deposits experienced mainly in 2002, as explained under " -- Results of Operations of Grupo Galicia for the Fiscal Years Ending December 31, 2003, December 31, 2002 and December 31, 2001 -- Financial Expenses," including the restructuring of Galicia Uruguay's deposits, which are included in these segments to the extent that the depositor is a client of a metropolitan or rest of the country branch; and by the reduction in the interest-rate spread for the Bank as a whole, which was mainly due to the decrease in the lending rate (which was due, in turn, to the decrease in the CER variation).
As a consequence of the improvement in the quality of their loan portfolios, in 2003 the branches' loan loss provisions were 78.8% lower than in the previous fiscal year. This improvement reflects the better performance of the Argentine economy as a whole in 2003.
Fee income decreased 10.5% when compared with the prior fiscal year mainly due to the effect of the restatement in real terms of the net fee income of the prior fiscal year.
Administrative expenses were 4.0% lower than in the prior fiscal year, reflecting the Bank's cost containment policy. We ended fiscal year 2003 with 226 branches (compared to 227 in December 2002) and with 1,837 employees (compared to 1,888 in December 2002).
Home Office -- This segment showed a Ps. 71.0 million net loss in 2003, as a consequence of a significant net financial loss, partially offset by significant net other income, an increase in net fee income and a decrease in loan loss provisions and administrative expenses.
The Ps. 341.4 million net financial loss was mainly attributable to the valuation of the Bank's portfolio of secured loans (recorded at the Home Office) in accordance with the requirements of Argentine Central Bank Communique "A" 3911. See Item 4. "Information on the Company -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Valuation of Public Sector Assets". Application of this valuation rule meant for the Bank a Ps. 198.1 million loss, recorded as a lower financial income; a lower yield on secured loans as a consequence of the decrease in the CER variation and by the revaluation of the compensatory and hedge bonds (dollar-denominated BODEN 2012 also recorded at the Home Office) from Ps. 3.36 per U.S. dollar at December 31, 2002, to Ps. 2.93 at December 31, 2003, and net yield on the Bank's dollar-denominated assets being negative due to the lower yield on the BODEN 2012 (LIBOR). These effects were not offset by a lower deposit cost and by the significant (2,544 basis-point) decrease in the cost of Argentine Central Bank borrowings. See " -- Results of Operations of Grupo Galicia for the Fiscal Years Ending December 31, 2003, December 31, 2002 and December 31, 2001 -- Financial Expenses."
This segment's net income from services recovered its precrisis level (year 2001), amounting to Ps. 48.5 million in 2003 compared to a net loss of Ps. 3.3 million in 2002. The net loss from services in 2002 included the payment of extraordinary fees in connection with structured-note transactions. See " -- Results by Segments for the Fiscal Year Ending December 31, 2002 -- Home Office" below.
Home Office administrative expenses decreased 78.6% from the prior year as a consequence of the Bank's efforts to cut costs and streamline operations.
Both the Ps. 40.4 million gain from provisions for loan losses and the Ps. 267.0 million net other income were attributable to the net reversal of loan loss reserves as a result of the improvement in the Argentine economy as a whole and the progress made by the Bank in the restructuring of its commercial loan portfolio, both leading to an asset quality improvement from the prior year. The increase in net other income was also due to the net reversal of reserves for other contingencies, partially offset by the Ps. 77.9 million amortization of the deferred loss in connection with the payment of restructured deposits at exchange rates higher than Ps. 1.4 per U.S. dollar, as required by judicial orders (amparos) in accordance with Argentine Central Bank Communique "A" 3916.
Regional Credit Cards -- The regional credit card companies recorded net income of Ps. 49.4 million, reflecting the favorable effect on their results of operations of the recovery of the Argentine economy's activity level and of the appreciation of the peso during 2003.
The appreciation of the peso during the year had a positive effect on these companies' net financial income, which amounted to Ps. 55.5 million (compared to a Ps. 17.2 million net financial loss in 2002) given their short foreign-currency position.
As a result of the improvement in the general economic environment and of the resulting decrease in loan delinquency, loan loss provisions decreased 66.0% from the prior year level. The nonaccrual-to-total loans ratio for these companies reached 3.61% at the end of fiscal year 2003 from 19.12% a year before.
Growing economic activity resulted in an increase of these companies' loan origination (which reduced the decrease in average loans when compared to that observed in 2002) and in the volume of average credit cards managed by them (from 1,107 thousand in 2002 to 1,173.7 thousand in 2003). In addition, the improvement in the general economic environment led these companies' customers to increase consumption as well as use of the cards managed by the regional credit card companies. These positive developments were partially offset by the failure of service prices to increase as much as the general level of prices. As a result of the above these companies' net income from services increased 11.5% from the prior fiscal year.
In addition, administrative expenses decreased 9.9% reflecting these companies' continuing cost containment efforts after the significant downsizing of operations carried out in 2002.
International -- This segment showed a Ps. 36.8 million profit. This result is mainly attributable to the Ps. 186.5 million net financial income, which mainly reflects the gain generated by the appreciation of the peso during 2003 since Galicia Uruguay was left, after asymmetric pesification, with a short foreign-currency position for which the government compensated Banco Galicia in Argentina. In addition, loan loss provisions decreased and net other income showed a Ps. 65.7 million profit mainly due to the net reversal of loan loss reserves, both as a consequence of the improvement in the quality of Galicia Uruguay's loan portfolio generated by the overall improvement in the Argentine economy and by the restructuring of the Galicia Uruguay loan portfolio achieved during 2003. Administrative expenses for this segment decreased 58.6%, reflecting a decrease in all expense components but particularly in taxes.
Other Financial Businesses -- This segment showed a Ps. 31.0 million net loss mainly attributable to the Ps. 23.4 million net other loss reflecting the establishment of a valuation reserve by Galicia Capital Markets S.A. on its holdings of subordinated notes issued by a trust whose assets were shares of an Argentine private-sector company.
Other Equity Investments -- This segment showed a Ps. 12.0 million loss as a result of net other losses. The "Other Income" line shows the aggregate losses generated by the Bank's interests in infrastructure and utility companies, mainly Aguas Argentinas S.A., Caminos de las Sierras S.A. and Aguas Cordobesas S.A. These companies were significantly affected by the changes that occurred in the Argentine economy since 2002.
RESULTS BY SEGMENTS FOR THE FISCAL YEAR ENDING DECEMBER 31, 2002
Grupo Galicia -- This segment posted a net loss of Ps. 30.8 million in fiscal year 2002, mainly attributable to a Ps. 168.5 million monetary loss from financial intermediation and the recording of a Ps. 59.2 million deferred
tax liability that implied an income tax charge for the same amount in accordance with applicable regulations for commercial companies. Net financial income in 2002 was Ps. 206.3 million, mainly reflecting the gain associated with the revaluation of Grupo Galicia's dollar-denominated deposits in Galicia Uruguay (most of which were restructured at the end of 2002 as subordinated negotiable obligations) and accrued interest (the exchange rate increased from Ps. 1.0 per US $1.00 as of December 31, 2001, to Ps. 3.36 per US $1.00 as of December 31, 2002. Administrative expenses amounted to Ps. 7.1 million, remaining practically unchanged.
Insurance -- The insurance segment showed a Ps. 2.2 million net loss, mainly as a result of a Ps. 45.2 million net financial loss attributable to the negative effect of inflation on the company's investments (monetary loss) and the establishment of valuation reserves on these investments. Net income from services recorded a Ps. 5.6 million loss, mainly as a result of acquisition costs. In addition, administrative expenses increased from 2001 levels. These losses and expenses were not compensated by greater net other income, which amounted to Ps. 86.4 million, including premiums earned net of benefits, claims and reinsurance costs.
Other Grupo Businesses -- This segment showed a Ps. 8.5 million net loss, mainly as a result of the poor operating performance of Net Investment S.A.'s subsidiaries and Galicia Warrants, together with the losses recorded as "Other Income," mainly resulting from Net Investments' equity interest in Tradecom Intl.
The results of the segments relating to the breakdown of the Bank's operations were as follows:
Buenos Aires Metropolitan Branches and Rest of the Country Branches -- The two segments reflecting the results of the branches performed similarly. These segments' net losses were the consequence of an extremely low net financial income when compared to previous periods. These segments' net financial income was affected by the significant decreases in deposit and loan volumes and by the reduction in the interest-rate spread for the Bank as a whole. It should be noted that the branches' portfolios are mainly private-sector loan portfolios, which were pesified at parity (Ps. 1.0 per US $1.00) and most of which were eligible to be adjusted not by the CER but by the CVS. The latter adjustment was not applied by the Bank during 2002. In addition these segments' results were affected by the deterioration of the quality of their loan portfolios as a result of the unfavorable economic environment prevailing in Argentina during most of 2002, which led to an increase in their loan loss provisions. These factors were not offset by positive net income from services and lower administrative expenses.
Fee income decreased when compared with the prior fiscal year because services prices did not track the increase in the general level of prices in 2002, especially the WPI, and therefore have fallen in real terms because fee income was affected by the overall fall in the Bank's activity level in 2002.
Administrative expenses fell significantly as a result of the cost reduction plan implemented by the Bank in 2002, which involved closing branches and reducing staffing levels. During 2002, 61 branches in Argentina were closed (i.e., 21.1% of those existing as of December 31, 2001) and branch staff decreased by 1,106 employees, 36.9% decrease from the December 31, 2001, staff level.
Home Office -- This segment showed a net loss in 2002, mainly as a result of a monetary loss from financial intermediation for Ps. 1,252.5 million; the significant charge for the establishment of the unallocated provisions of the Bank and the recording of net other losses for Ps. 607.4 million, mainly reflecting the provisions established by the Bank for contingencies related to its interests in nonfinancial businesses and the amortization of certain goodwill.
The Ps. 1,964.2 million net financial income reflects the fact that the Home Office segment concentrates the financial income attributable to all of the public-sector assets held by the Bank, including secured loans and the compensatory and the hedge bonds received or to be received by the Bank for the effects of asymmetric pesification on both Banco Galicia (and its foreign branches) and on Galicia Uruguay. Compensation for the effects of asymmetric pesification on Galicia Uruguay's balance sheet was granted to the Bank in Argentina and was therefore booked at the Home Office. It should be stressed that public-sector assets were pesified at the Ps. 1.40 per U.S. dollar exchange rate and accrued the CER adjustment. In addition, the compensatory bond and the hedge bond are dollar denominated and, during 2002, the exchange rate increased by approximately 240%, both factors explaining the Home Office's relatively high financial income. Net financial income was positive despite the fact that this
segment's results are net of the cost of the Home Office's foreign debt (and the corresponding valuation difference in 2002) and that of the Bank's liabilities with the Argentine Central Bank.
This segment's income from services, structurally lower than that of the branches, was affected by the payment of extraordinary fees in connection with structured-note transactions that were paid off by the Bank prior to maturity.
In addition, this segment's administrative expenses increased due to the fact that they include all of the restructuring charges (Ps. 131.1 million) associated with the decrease in the Bank's overall staff in 2002.
Regional Credit Cards -- The regional credit-card companies' results showed a Ps. 336.3 million net loss in 2002.
On one hand, these companies' results were affected by the decrease in their level of activity caused by the recession, especially during the first half of 2002, and by the decrease of services prices in real terms. This is reflected in the Ps. 143.0 million income from services, that was 54.1% lower than in 2001, being practically unchanged in nominal terms from the previous year's figure.
On the other hand, these companies net loss show the effects of the adjustment of their balance sheet for inflation, which resulted in a monetary loss of Ps. 261.9 million (shown under "Monetary Results of Other Income"), and the devaluation of the peso during 2002 and the decrease in interest-rate spreads, which account for the Ps. 17.2 million net financial loss. The negative effect of the increase in the exchange rate, is a result of these companies' consolidated short foreign currency position, which in turn was caused by the fact that the loss caused to these companies by asymmetric pesification measures were not compensated by the government. Net financial income was also affected by the pesification of loans to the private sector at parity.
In addition, provisions for loan losses were higher than in previous years, given that these companies' customer base, pertaining to the lower-income segment of the population, was particularly affected by the 2002 recession that caused high unemployment rates and the fall in real income. However, the deterioration in asset quality slowed by year-end. The streamlining of these companies' operations (through reductions in their distribution network and staff) is reflected in the 55.3% decrease of their consolidated administrative expenses.
International -- This segment showed a Ps. 1,849.1 million loss. This loss is mainly attributable to the Ps. 1,521.7 million net financial loss, which reflects the losses generated by the increase in the exchange rate during 2002.
In addition this segment's results were affected by high loan loss provisions reflecting the deterioration of the quality of its assets, mainly loans granted to Argentine private-sector customers, the repaying capacity of which was affected by the unfavorable economic environment prevailing in Argentina during most of 2002, including the devaluation of the peso.
Banco Galicia Uruguay's activities were suspended on February 13, 2002, and Banco Galicia wound down most of its foreign-based units during 2002.
Other Financial Businesses -- This segment's net loss was mainly due to the Ps. 6.3 million monetary loss from financial intermediation, partially offset by the profits generated by the Bank's investments in non-consolidated financial-related companies such as Banelco and Visa, shown under "Other Income." The remaining consolidated companies show a lower fee income, as compared to the previous year's figure, as a result of lower levels of activity.
Other Equity Investments -- This segment showed a Ps. 51.1 million loss as a result of negative net other income. The "Other Income" line shows the aggregate losses generated by the Bank's interests in infrastructure and utility companies, mainly Aguas Argentinas S.A., Aguas Cordobesas S.A. and Aguas Provinciales de Santa Fe S.A. These companies were significantly affected by the changes that occurred in the Argentine economy in 2002, mainly the devaluation of the currency, which increased the amount in pesos of these companies' foreign-currency debts
together with the government's policy of not allowing utilities to increase prices in the inflationary environment prevailing in Argentina during 2002, especially in the first half of the year.
RESULTS BY SEGMENTS FOR THE FISCAL YEAR ENDING DECEMBER 31, 2001
Grupo Galicia -- This segment posted a Ps. 8.5 million net loss in fiscal year 2001 compared to the Ps. 0.2 million annualized net loss accounted in the six-month period ended in December 31, 2000. This performance was mainly attributable to higher administrative expenses (Ps. 7.5 million vs. Ps. 4 million annualized) because the holding company structure became fully operative in 2001. In addition, there was a decrease in net financial income (Ps. 1.2 million compared to Ps. 5.6 million annualized). This line shows the interest earned by the company through its liquidity management, which is basically obtained from Banco Galicia's cash dividend distribution.
Insurance -- The insurance segment posted a net income of Ps. 0.2 million mainly attributable to a Ps. 0.3 million net financial income, administrative expenses of Ps. 20.5 million and net other income of Ps. 20.5 million (which included income of Ps. 12.1 million from the sale of a small Uruguayan subsidiary).
Other Grupo Businesses -- The net loss of Ps. 2.1 million posted in fiscal year 2001 can be mainly explained by net financial and fee income of Ps. 4.9 million and administrative expenses of Ps. 6.1 million. This poor performance can be traced to Net Investment's loss in the first half of the year. However, in the second six months of 2001, Net Investment reached breakeven.
The results of the segments relating to the breakdown of the Bank's operations were as follows:
Buenos Aires Metropolitan Branches and Rest of the Country Branches -- The drop in these two segments results were mainly attributable to a reduction in financial spreads mainly in the last quarter of the year. The net average financial margin for both segments amounted to 5.85% in 2001 compared to 6.15% in 2000.
Fee income grew because of a 5.5% increase in deposit fees, partially generated by the increase in the number of saving and current accounts opened at the branches. In addition, fees from foreign exchange brokerage increased because of lack of confidence in the domestic currency which grew in the second half of the year. Finally, insurance fees rose 38% in the Buenos Aires metropolitan branches and 28.7% in the rest of the country branches.
Administrative expenses grew in the Buenos Aires metropolitan branches due to the incorporation of the branches acquired from ABN AMRO Bank Argentina (19 branches and 192 employees) in October 2001. This was partially compensated by a 36.9% reduction in communication expenses. In the rest of the country branches, communication expenses dropped 35.2% and four branches were closed. Considering the two segments, there was an aggregate net increase of 93 employees compared to the prior year despite the new 192 employees from ABN AMRO Bank. Finally, administrative expenses also rose due to an increase in the VAT tax and the implementation of the tax on financial transactions effective April 2001.
Home Office -- The growth in this segment's net income can be basically explained by an increase in net financial income due to the Ps. 288.9 million income from government securities that collateralized repurchase transactions. Moreover, loan loss provisions rose as a consequence of the deterioration in asset quality that resulted from the economic recession that Argentina was experiencing since 1998. This resulted in an increase in the number of medium-large companies entering Chapter 11 bankruptcy.
Regional Credit Cards -- This segment's net loss can be explained by a decrease in financial spreads during the last six months of 2001 and a significant increase in administrative expenses.
International -- The International segment showed an increase in net financial income generated by a wider spread partially offset by higher administrative expenses due to an increase in taxes. The other income line can be traced to an extraordinary result from the sale of the 22.71% stake in Banco Barclays e Galicia.
Other Financial Businesses -- This segment's earnings were mainly related to the fee income generated by Galicia Capital Markets S.A. and Galicia Factoring y Leasing S.A. Both companies performed well despite the negative economic conditions. For instance, Galicia Capital Markets completed transactions with 50 clients and met its
annual income budget. Galicia Factoring reached Ps. 746.7 million volume from its factoring product while the leasing product suffered a 8.92% decrease in volume.
Other Equity Investments -- The earnings of this segment were mainly generated by the divestiture from Inversora en Distribucion de Entre Rios S.A. The gain from that transaction was partially offset by the loss from Correo Argentino S.A., where Banco Galicia held an 11.77% stake.
CONSOLIDATED ASSETS
The structure and main components of our consolidated assets as of December 31, 2003, were as follows:
DECEMBER 31, 2003 ---------------------- (In millions of pesos) Cash and due from banks............................. Ps. 826.2 Government and corporate securities................. 2,900.1 Loans to the nonfinancial public sector............. 7,800.6 Other loans, net.................................... 3,183.2 Compensatory and hedge bonds to be received......... 4,629.6 Other assets........................................ 3,555.0 ------------ TOTAL............................................... Ps. 22,894.7 ============ |
Of our total assets as of December, 31, 2003, Ps. 22,707.8 million, equivalent to 99.2%, corresponded to the Bank. The remaining 0.8% is attributable mainly to Sudamericana Holding S.A. consolidated (Ps. 110.7 million). The composition of the Group's assets does not differ from that of the Bank and has not shown significant changes from the prior fiscal year.
The item "Cash and Due from Banks" mainly includes cash of Ps. 400.7 million and Ps. 360.1 million held at the Argentine Central Bank. The cash and the balance held at the Argentine Central Bank are computable for meeting the minimum cash requirements set by the Argentine Central Bank and explained under Item 5. "Operating and Financial Review and Prospects -- Item 5B. Liquidity and Capital Resources -- Liquidity."
Our holdings of government securities as of December 31, 2003, are shown under Item 4. "Information on the Company -- Selected Statistical Information -- Government and Corporate Securities." This item includes Ps. 1,610 million of compensatory BODEN 2012, which corresponds to that part of the compensatory bond already received by the Bank.
The difference between the amount of BODEN 2012 actually received and the total compensation amount calculated by the Bank, has been recorded under the "Other Receivables from Financial Brokerage -- In Foreign Currency -- Compensation to be Received from the National Government" account as a right to receive BODEN 2012 for an amount of Ps. 4,629.6 million (US$1,530.7 million on account of principal and US$47.8 million on account of interest). This amount comprises both the portion of the compensatory bond still to be received and all of the hedge bond (Ps. 1,013.9 million and Ps. 3,615.7 million, respectively). If bonds not yet received were recognized under the caption "Government and Corporate Securities," this item would represent 32.9% of our total assets.
In December 2002, the Bank originally calculated that it should receive US$2,254.0 million of face value of BODEN 2012. On October 30, 2003, the Argentine Central Bank made certain observations to certain criteria applied and to the inclusion of certain items, by means of which it would modify the final amount of such compensation. In December 2003, the Bank accepted and recognized in its financial statements a US$53.9 million adjustment to the carrying amount of the compensation to be received, which resulted in a Ps. 163.2 million (equivalent to US$55.6 million on account of principal and interests) decrease in the Bank's assets. As of December 31, 2003, the amount of compensation claimed by the Bank amounted to US$2,200.0 million. After having examined the file where the observations are made, in order to know the grounds on which the remaining observations were based, the Bank has answered these observations, clarifying its position and requesting that observations be rectified. The Argentine Central Bank is currently in the process of reviewing the Bank's position.
As of December 31, 2003, total loans amounted to Ps. 10,983.8 million, of
which Ps. 10,934.8 million corresponded to the Bank and the remaining amount to
secured loans held by Sudamericana Holding S.A. Total loans represented 48.0% of
total assets, and continued representing our most important asset. As of that
date, the Bank's loan portfolio contained Ps. 7,751.4 million of secured loans
to the Argentine public sector valued in accordance with Argentine Central Bank
Communique "A" 3911. For more information on the Bank's loan portfolio, see Item
4. "Information on the Company -- Selected Statistical Information -- Loan
Portfolio."
In connection with the restructuring of the financial assistance for liquidity support it received from the Argentine Central Bank described under Item 5. "Operating and Financial Review and Prospects -- Funding" and approved by the Argentine Central Bank on February 3, 2004, the Bank has granted the Argentine Central Bank, as collateral for repayment, secured loans with a book value of Ps. 6,837.5 million as of December 31, 2003, valued in accordance with Argentine Central Bank Communique "A" 3911.
"Other Assets" mainly comprises:
- Ps. 915.7 million corresponding to bank premises and equipment, miscellaneous assets and intangible assets.
- Ps. 646.1 million of the Bank's holdings of debt securities and subordinated notes issued by the Galtrust I Financial Trust, as a result of the securitization of loans to the provincial public sector in late 2000, recorded in the balance sheet under the caption "Other Receivables from Financial Brokerage."
- Ps. 487.0 million corresponding to the recording (as an intangible asset pursuant to Argentine Central Bank Communique "A" 3916) of the right to receive compensation for the difference between the amount paid to depositors who filed legal actions (amparo claims) and collected their deposits as originally denominated in U.S. dollars or at the free market exchange rate and the amount established by the pesification rules (conversion at the exchange rate of Ps. 1.40 per U.S. dollar plus the CER adjustment and accrued interest).
- Ps. 274.7 million (recorded under the balance sheet item "Other Receivables from Financial Brokerage") corresponding to the Bank's interest in the funds jointly formed by the Bank with other private-sector banks in order to facilitate the recovery of the assets of former banks Almafuerte and Mendoza, in whose restructuring Banco Galicia took part. The fund's assets, made up of national government securities, were exchanged for secured loans in late 2001.
- Ps. 185.8 million (recorded under the balance sheet item "Miscellaneous Receivables") of secured loans granted as collateral for the assistance received from the FFAEFyS, as part of the implementation of the Galicia capitalization and liquidity plan.
- Ps. 118.4 million (recorded under the balance sheet item "Other Receivables from Financial Brokerage") of the Bank's holdings of subordinated notes issued by the "Galicia Mortgage Loans Financial Trust" as part of the implementation of the Galicia capitalization and liquidity plan.
- Ps. 102.8 million corresponding to the recording (under the balance sheet item "Other Receivables from Financial Brokerage") of the estimated value of the compensation for the difference that arises from the exclusion of certain loan portfolios from the system of adjustment by the CER, which portfolios remained subject to the application of the CVS. On May 18, 2004, the deadline for financial institutions to opt into the compensation regime established by the government, the Bank did not request to do so but rather restated its right to be compensated for the negative effects of asymmetric indexation, formally challenging the regulations implementing the compensation regime.
- Ps. 87.1 million of equity interests in companies not consolidated.
- Ps. 68.7 million (recorded under the balance sheet item "Other Receivables from Financial Brokerage") of our holding of debt securities and subordinated notes issued by the Galtrust II and V Financial Trusts created in late 2001 as a result of the securitization of part of the Bank's mortgage loan portfolio.
- Ps. 40.5 million (recorded under the balance sheet item "Other Receivables from Financial Brokerage") of subordinated notes issued by the Secured Loans Trust as part of the implementation of the Galicia capitalization and liquidity plan and held by the Bank.
EXPOSURE TO THE ARGENTINE PUBLIC SECTOR
The following table shows our total net exposure to the Argentine public sector, both national and provincial. This exposure mainly consists of exposure of the Bank.
As of December 31, 2003 ----------------------- (in millions of pesos) NET POSITION IN GOVERNMENT SECURITIES......................... Ps. 2,898.4 Trading and investment accounts........................... 1,209.8 Fiscal Credit Certificate ................................ 78.6 Compensatory bond......................................... 1,610.0 OTHER RECEIVABLES RESULTING FROM FINANCIAL BROKERAGE.......... Ps. 5,664.6 Compensatory bond......................................... 1,013.9 Hedge bond................................................ 3,615.7 Galtrust I Financial Trust................................ 646.1 Special Funds Former Almafuerte and Mendoza Banks......... 245.6 Secured Loans Trust....................................... 40.5 CER/CVS Difference........................................ 102.8 LOANS......................................................... Ps. 7,991.0 Provinces -- financial sector ............................ 190.4 Secured loans............................................. 7,800.6 MISCELLANEOUS RECEIVABLES..................................... Ps. 185.8 Secured loans granted as guarantee of the FFAEFyS loan.... 185.8 INTANGIBLE ASSETS............................................. Ps. 487.0 Difference for payment of Amparo Claims (2)............... 487.0 ------------ TOTAL ASSETS (1) ............................................. Ps. 17,226.8 ============ LIABILITIES WITH THE ARGENTINE CENTRAL BANK 8,199.2 ============ NET EXPOSURE 9,027.6 ============ |
(1) Does not include deposits with the Argentine Central Bank which constitute one of the items by which the Bank complies with the Argentine Central Bank's minimum cash requirements.
(2) Net of amortization.
Our total net exposure to the Argentine public sector as of December 31, 2003, amounted to Ps. 9,027.5 million, representing 39.4% of our total assets.
OFF-BALANCE SHEET ARRANGEMENTS
Our off-balance sheet risk mainly arises from the Bank's activities.
In the normal course of its business, the Bank is party to financial instruments with off-balance sheet risk in order to meet the financing needs of its customers. These instruments expose the Bank to credit risk in addition to amounts recognized in our consolidated balance sheets. These financial instruments include commitments to extend credit, standby letters of credit, guarantees granted and acceptances.
COMMITMENTS TO EXTEND CREDIT, STAND-BY LETTERS OF CREDIT AND GUARANTEES GRANTED
Guarantees granted are surety guarantees in connection with transactions between two parties. Standby letters of credit and guarantees granted are conditional commitments issued by the Bank to guarantee the performance of a customer to a third party. Acceptances are conditional commitments for foreign trade transactions.
Commitments to extend credit are agreements to lend to a customer at a future date, subject to meeting certain contractual terms. Commitments generally have fixed expiration dates or other termination clauses and may
require payment of a fee. Since many of the commitments are expected to expire without being drawn upon, total commitment amounts do not necessarily represent actual future cash requirements of the Bank. The Bank evaluates each customer's creditworthiness on a case-by-case basis.
The Bank uses the same credit policies in making commitments, conditional obligations and guarantees as it does for granting loans. In the opinion of management, the Bank's outstanding commitments and guarantees do not represent unusual credit risk.
The Bank's exposure to credit loss in the event of nonperformance by the other party to the financial instrument for commitments to extend credit, standby letters of credit, guarantees granted and acceptances is represented by the contractual notional amount of those investments.
The Bank's credit exposure related to these items as of December 31, 2003, is summarized below:
DECEMBER 31, ---------------------- 2003 ---------------------- (In millions of pesos) Commitments to extend credit... Ps. 220.9 Standby letters of credit...... 10.9 Guarantees granted............. 234.4 Acceptances.................... 22.4 |
On March 25, 2004, a guaranty for Ps. 7.3 million granted by the Bank in favor of the Argentine government in connection with Correo Argentino's contract with the Argentine government was called. The related claim has been proved as a possible claim in the reorganization proceedings involving Correo Argentino. This claim is fully covered by an allowance. The Bank will pay this guaranty as provided in accordance with conditions to be established by the National Communications Commission, as applicable.
In addition to the above commitments, as of December 31, 2003, available purchase limits for credit card holders amounted to Ps. 2,675.1 million.
The credit risk involved in issuing letters of credit and granting guarantees is essentially the same as that involved in extending loan facilities to customers. In order to grant guarantees to its customers, the Bank may require counter guarantees. As of December 31, 2003, these counter guarantees, classified by type, were as follows:
DECEMBER 31, ---------------------- 2003 ---------------------- (In millions of pesos) Preferred counter guarantees... Ps. 53.6 Other counter guarantees....... 97.7 |
See note 29 to our audited consolidated financial statements.
OTHER
The Bank accounts for checks drawn on it and other banks, as well as other items in the process of collection, such as notes, bills and miscellaneous items, in memorandum accounts until the related item clears or is accepted. In management's opinion, the risk of loss on these clearing transactions is not significant. The amounts of clearing items in process as of December 31, 2003, were as follows:
DECEMBER 31, ---------------------- 2003 ---------------------- (In millions of pesos) Checks drawn on the Bank................ Ps. 109.2 Checks drawn on other banks............. 162.4 Bills and other items for collection.... 327.0 |
With respect to fiduciary risk, in fiscal year 2000, the Bank was appointed as trustee under four trust agreements to guarantee obligations arising from various contracts between the parties. As of December 31, 2003, the trust funds amounted to Ps. 72.8 million.
In addition, the Bank has securities in custody, mainly related to its activity as a mutual fund depositary. As of December 31, 2003, these securities amounted to Ps. 5,412.7 million.
See note 29 to our audited consolidated financial statements.
SECURITIZATION OF ASSETS
In the normal course of business, the Bank has used the securitization of assets as a source of funding. In addition, in 2002, within the framework of the Galicia capitalization and liquidity plan, the Bank securitized mortgage loans and secured loans in order to restore the Bank's liquidity, which had been adversely affected by the deposit run of late 2001 and early 2002.
The securitization of assets basically involves a company selling assets to a trust and the trust funding the purchase by issuing securities that are sold to third parties. A trust is a special-purpose entity, not an operating entity; typically, a trust is set up for the single purpose of completing the securitization transaction, has a limited life and no employees.
- Galtrust I Individual Financial Trust
On October 20, 2000, the Bank securitized a group of loans that had been made to the provinces of Argentina and collateralized by tax revenues shared by the national government and the provinces. The Bank transferred the ownership of these loans to the Galtrust I Financial Trust. The trust issued, in turn, class A debt securities with a face value of US$100.0 million, class B debt securities with a face value of US$200.0 million and participation certificates (subordinated notes) with a face value of US$200.0 million. Third-party investors purchased Ps. 46.9 million (in historical currency) of the class B debt securities, and the Bank retained the remainder of the certificates. As of December 31, 2003, the Bank held debt securities and subordinated notes totaling an aggregate amount of Ps. 646.1 million. The trustee is First Trust of New York, National Association, acting through its permanent representative office in Argentina.
- Galtrust II, III, IV and V Individual Financial Trusts
At a meeting held on December 6, 2001, the Bank's board of directors approved the creation of a program for the securitization of loans and the issuance of debt securities and/or certificates of participation by various Galtrust financial trusts. The CNV approved the program on April 6, 2000, for a face value of up to US$1,000 million and authorized the Bank's participation as originator, trustor and manager of the program.
Four financial trusts, Galtrust II, III, IV and V - Letras Hipotecarias, were set up under this program. Certificates of participation and debt securities were then issued under the trusts. In December 2001, the Bank transferred ownership of mortgage loans totaling Ps. 521.3 million to the Galtrust II, III, IV and V - Letras Hipotecarias financial trusts.
The Bank retained 100% of the certificates of participation. The remaining class A and class B debt securities were subscribed for by the Bank and by Hartford Seguros de Vida S.A.
As of December 26, 2002, the Galtrust III and IV financial trusts were terminated. As of December 31, 2003, the Bank held certificates of participation and debt securities of the Galtrust II and V financial trusts for Ps. 68.8 million. The trustee for each trust is First Trust of New York, National Association, acting through its permanent representative office in Argentina.
- Trusts set up as part of the Galicia capitalization and liquidity plan
As part of the implementation of the Galicia capitalization and liquidity plan, the Galicia Mortgage Loans Financial Trust was created in May 2002. The Bank transferred Ps. 312.8 million of mortgage loans to the trust and received in exchange Ps. 234.6 million in cash and Ps. 78.2 million in certificates of participation (in May 2002 currency). The trustee is ABN AMRO Bank Argentine Branch. Thirteen domestic financial institutions subscribed for the trust's debt securities. The Bank is obligated to replace the loans in the trust under certain circumstances. As of December 31, 2003, the Bank held certificates of participation totaling Ps. 118.4 million.
Also as part of the implementation of the Galicia capitalization and liquidity plan, the Secured Loans Trust was created. The parties to the trust are Banco de la Provincia de Buenos Aires as beneficiary and BAPRO Mandatos y Negocios S.A. as trustee. The Bank transferred Ps. 108 million of secured loans to the trust and received in exchange Ps. 81 million in cash and Ps. 27 million in certificates of participation. As of December 31, 2003, the Bank held certificates of participation totaling Ps. 40.5 million.
See note 34 to our audited consolidated financial statements.
FUNDING
Traditionally, we have had three principal funding sources: customer deposits (consisting of current accounts, savings accounts and time deposits generated by the Bank's branch network), credit lines from banks and multilateral agencies and funds obtained through issuances of medium- and long-term securities in international financial markets.
Our ability to raise funds in local and international financial markets declined substantially during 2001, practically disappeared by late 2001 and remained substantially limited during 2003 (except for our ability to raise short-term deposits in the Argentine market). Other Argentine companies faced similar problems. This difficulty stemmed from the Argentine government solvency crisis, the sovereign's default on its debt and other consequences of the Argentine crisis.
As a consequence of the 2001 - 2002 liquidity crisis, the Argentine Central Bank provided liquidity support to financial institutions, including us, in the form of short-term loans or rediscounts. These funds were the only source of funding for the Bank from late 2001 until April 2002. As of December 31, 2003, liabilities owed by the Bank to the Argentine Central Bank on account of rediscounts for liquidity support amounted to Ps. 5,663.1 million. In accordance with Decrees No. 739/03 and No. 1262/03, these borrowings were restructured into a long-term liability with principal adjusted by CER plus a 3.5% annual interest rate. In addition, as a result of the compensation measures undertaken by the government, as of December 31, 2003, our balance sheet included Argentine Central Bank loans for Ps. 2,536.1 million to fund the acquisition of the hedge bond (BODEN 2012).
In November 2001, after the government restructured public-sector indebtedness with domestic creditors (including government securities) into secured loans and in the context of the financial system's increasing reliance on financial assistance from the Argentine Central Bank, the government (through Decrees No. 1523/01 and No.
1526/01) permitted the Argentine Central Bank to grant financial assistance to financial institutions for liquidity support collateralized by those secured loans, without the term and amount limits that were previously imposed. (Under the convertibility system, the Argentine Central Bank was precluded from lending to a financial institution except for 30-day rediscounts or advances for transitory liquidity support secured by government securities up to the amount of the financial institution's shareholders' equity.)
In order to reduce the maturity mismatches faced by financial institutions that were simultaneously debtors (for having received financial assistance for liquidity support from the Argentine Central Bank during the 2001 - 2002 crisis) and creditors (as holders of public-sector debt instruments) of the Argentine public sector, the Argentine government established a voluntary procedure in March 2003 for restructuring the financial assistance received from the Argentine Central Bank during the 2001 - 2002 crisis. In accordance with Decree No. 739/03, these borrowings were to be restructured into liabilities maturing in up to 70 months, with principal adjusted by the CER plus a 3.5% annual interest rate, and were to be collateralized by secured loans in an amount equal to at least 125% of the debt owed. The amortization schedule would be based on the cash proceeds of assets granted as collateral, the minimum amortization established by the decree and the maximum number of installments allowed by it. Subsequently, Decree No. 1262/03, dated May 22, 2003, extended the maximum number of installments to 120 months, if approved by the URSF. These rules are known as the "matching" rules.
Beginning on April 30, 2003, the Bank began to account for the financial assistance for liquidity support from the Argentine Central Bank in accordance with the matching rules (i.e., principal was adjusted by the CER and the interest rate accrued was CER plus 3.5% per annum). Up to April 29, 2003, such liability had been a peso-denominated monthly revolving facility whose cost was tied to the interest rate of the Lebac (equivalent to 64.0% of the interest rate on the 30-day Lebac or the minimum term Lebac auctioned). During 2002, the Argentine Central Bank financial assistance for liquidity support accrued at an average interest rate of 28.25%. The interest rate accrued in April 2003 was 6.50% per annum.
On November 27, 2003, the URSF authorized the Argentine Central Bank to extend the maturity of the Bank's debt with the Argentine Central Bank for liquidity support in accordance with the repayment schedule presented by the Bank to the Argentine Central Bank and the provisions of Decree No. 1262/03. On February 3, 2004, the Argentine Central Bank approved the request made by the Bank to adhere to the regime established by Decree No. 739/03, as modified by Decree No. 1262/03, as well as the amortization schedule proposed by the Bank. That schedule contemplates repayment in 92 monthly installments beginning in March 2004.
As a result of the liquidity crisis experienced by the Bank in late 2001 and early 2002, the Bank defaulted on its foreign debt in June 2002. As of December 31, 2003, the foreign debt of the Bank's head office in Argentina and its Cayman branch was in the process of being restructured in order to extend its maturity and to reduce its interest rate. The restructuring process was completed on May 18, 2004.
Below is a breakdown of our funding as of the dates indicated:
DECEMBER 31, DECEMBER 31, ---------------------- -------------------------------------------------- 2003 2002 2001 ---------------------- ----------------------- ------------------------ (In millions of pesos) (In millions of February 28, 2003, constant pesos) Deposits (1)................................... Ps. 5,584.0 Ps. 5,242.0 Ps. 13,690.5 Restructured deposits...................... 561.4 1,335.1 -- Credit Lines (1) Argentine Central Bank For liquidity support................ 5,663.1 5,630.2 3,431.0 Advance to purchase the hedge bond(2) 2,536.1 2,489.9 -- Other banks and international entities..... 3,017.1 4,096.4 2,060.8 Debt securities (1)............................ 2,565.5 3,735.7 1,871.9 Shareholders' equity .......................... 1,462.3 1,551.7 3,090.3 ------------ ------------ ------------ TOTAL FUNDING.................................. Ps. 20,828.1 Ps. 22,745.9 Ps. 24,144.5 ------------ ------------ ------------ |
(1) Includes accrued interest and exchange differences payable, as well as the CER adjustment where applicable.
(2) Borrowings expected to be incurred for the purchase of the hedge bond.
As of December 31, 2003, our most significant source of funding was financial assistance from the Argentine Central Bank. This represented 39.4% of our funding compared to 35.7% as of December 31, 2002. At the end of 2003, financial assistance for liquidity support represented 27.2% of total funding compared to 24.7% a year before. The relative weight of such financial assistance at the end of fiscal years 2003 and 2002 was substantially higher than the 14.2% as of December 31, 2001. This resulted from the receipt in the first months of 2002 until the implementation of the Galicia capitalization and liquidity plan of additional financial assistance from the Argentine Central Bank. In addition, in 2002, total financial assistance from the Argentine Central Bank increased substantially due to the incorporation into our balance sheet of the advance to fund the purchase of the hedge bond.
Until December 2001, customer deposits had been our most important funding source, accounting for 56.7% of total funding as of December 31, 2001. As of December 31, 2003, our deposits represented 26.8% of our total funding. Our deposit base, like that of all other banks in Argentina, was significantly affected by the systemic run on deposits throughout 2001, by the Argentine crisis at the end of the year and by various regulations implemented by the Argentine government in recent years, as explained in this annual report. As of December 31, 2003, our deposits were 6.5% higher than the level of December 31, 2002. Nearly all of this increase occurred in peso-denominated transactional deposits (deposits in current and savings accounts) and short-term time deposits.
For more information on deposits, see Item 4. "Information on the Company -- Selected Statistical Information -- Composition of Deposits."
We also traditionally funded our operations with credit lines from banks and international agencies. As of December 31, 2003, these credit lines amounted to Ps. 3,017.1 million compared with Ps. 4,096.4 million and Ps. 2,060.8 million as of December 31, 2002, and December 31, 2001, respectively. The variations in these amounts mainly reflect variations in the exchange rates at which dollar-denominated amounts were translated into pesos at the close of the relevant balance sheet dates. See Item 3. "Key Information -- Exchange Rate Information." As of December 31, 2003 and 2002, these credit lines mostly represented credit lines from foreign banks in payment default that were subject to restructuring, which was completed on May 18, 2004. See " -- Contractual Obligations" below.
In the past, we had also funded our operations in international and local
financial markets through the issuance of debt securities (dollar-denominated
negotiable obligations, medium-term notes and U.S. commercial paper).
Dollar-denominated funds raised in the capital markets have been an important
part of our funding, with Ps. 2,565.5 million in dollar-denominated debt
securities outstanding as of December 31, 2003, as compared with Ps. 3,735.7
million and Ps. 1,871.9 million outstanding as of December 31, 2002, and
December 31, 2001, respectively. The variations in these amounts mainly reflect
variations in the exchange rates at which dollar-denominated amounts were
translated into pesos at the close of the relevant balance sheet dates. See Item
3. "Key Information -- Exchange Rate Information." As of December 31, 2003, Ps.
1,242.3 million (principal only), including the negotiable obligations issued
pursuant to the restructuring of our New York branch in mid-2002 and the
negotiable obligations issued to settle the restructuring of Galicia Uruguay's
deposits agreed to in late 2002, was current and not included in the Bank's
foreign debt restructuring. The remainder of our debt securities outstanding as
of December 31, 2003, was in payment default and subject to restructuring. The
restructuring of the Bank's foreign debt, which did not include negotiable
obligations issued by the regional credit card companies, was completed on May
18, 2004. See " -- Contractual Obligations" below.
Although deposits recovered in the latter half of 2002 and 2003, most of the traditional medium- and long-term sources of financing we customarily rely upon, especially external sources, remain unavailable to us.
On May 31, 2004, the Bank was rated A3 by Standard & Poor's on its local
ratings scale for short-term obligations. In accordance with applicable rules,
this rating enabled the Bank, after a period of more than two years, to raise
deposits from local pension funds once more. This rating also facilitates
deposit raising among other domestic institutional investors. On June 28, 2004,
the Bank's long-term debt was rated BBB- by Standard & Poor's on its local
ratings scale.
CONTRACTUAL OBLIGATIONS
In connection with our operating activities, we enter into certain contractual obligations. Our main contractual obligations are contractual obligations of the Bank.
The following tables show the principal amounts of our contractual obligations and their contractual interest rates (mainly representing contractual obligations of the Bank) as of December 31, 2003.
ANNUAL LESS INTEREST THAN 1 TO 3 3 TO 5 OVER 5 MATURITY RATE TOTAL PAST DUE 1 YEAR YEARS YEARS YEARS -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- (In millions of pesos) Banco Galicia - 9% Notes Due 2003... 2003 9.0% Ps. 566.0 Ps. 566.0 - - - - Banco Galicia - Step Up Floating Rate Notes Due 2002 .............. 2002 3.9% 413.8 413.8 - - - - Banco Galicia - 4th Series Floating Rate Notes Due 2005 ..... 2005 4.0% 130.3 65.1 Ps. 32.6 Ps. 32.6 - - Banco Galicia - 5th Series Floating Rate Notes Due 2005 ..... 2005 4.0% 31.3 15.7 7.8 7.8 - - Banco Galicia - 7.875% Notes Due 2007 (1).......................... 2007 7.9% 213.0 - - 142.0 Ps. 71.0 - Banco Galicia - 7th Series Floating Rate Notes Due 2007 (1).. 2007 Libor + 400 bp 126.6 - - 84.4 42.2 - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Galicia Uruguay - Negotiable Obligations (2) (3)............... Various 2.0% 902.7 - 123.1 260.9 184.6 Ps. 334.1 -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Negotiable Obligations - Tarjetas del Mar........................... 2002 14.9% 0.5 0.5 - - - - Negotiable Obligations - Tarjeta Naranja........................... 2002 16.5% 2.7 2.7 - - - - Negotiable Obligations - Tarjetas Cuyanas........................... 2002 16.0% 6.3 6.3 - - - - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Banco Galicia - Foreign Banks' Dollar-denominated Syndicated Loan ............................. 2002 7.9% 733.3 733.3 - - - - Banco Galicia - Foreign Banks' Dollar-Denominated Syndicated Loan ............................. 2002 7.0% 240.5 240.5 - - - - Banco Galicia - International Finance Corporation Loan ......... 2002 4.8% 718.6 718.6 - - - - Banco Galicia - International Finance Corporation Loan ......... 2008 Libor + 327 bp 190.6 71.2 29.0 40.7 39.7 10.0 Banco Galicia - International American Investment Corp. Loans .. Various 5.1% 203.8 139.5 21.6 34.1 6.9 1.7 Banco Galicia - FMO Loans ......... Various 4.8% 56.6 26.6 8.0 11.0 11.0 - Banco Galicia - BICE Loans.......... Various Various 193.4 29.3 61.2 72.0 27.4 3.5 Cayman Branch - Trade and Financial Loans ............................ Various 3.8% 557.7 258.0 299.7 - - - Banco Galicia - Other Financial Loans............................. Various Various 33.5 1.5 0.8 21.7 9.5 - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Argentine Central Bank - Assistance for Liquidity Support............. 2011 CER+3.5% 5,647.1 - 258.1 732.3 929.8 3,726.9 Argentine Central Bank - Advance to Purchase the Hedge Bond (4) ... 2012 CER+2.0% 2,442.8 - - 610.7 610.7 1,221.4 -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Loan from SEDESA (5) ............... 2007 Libor + 300 bp 189.2 - - - 189.2 - Peso-Den. Loan from the FFAEFyS..... 2008 CER+8.07% 33.5 - 6.7 13.4 13.4 - Dollar-Den. Loan from the FFAEFyS (5)............................... 2005 8.1% 70.3 - 46.9 23.4 - - Non-Delivery Forwards .............. -- -- 99.6 96.8 2.8 - - - Backed Letters of Credit............ -- -- 15.6 15.6 - - - - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- TOTAL............................... Ps.13,819.3 Ps.3,401.0 Ps.898.3 Ps.2,087.0 Ps.2,135.4 Ps.5,297.6 ======== ============== =========== ========== ======== ========== ========== ========== |
Principal only (does not include interest).
(1) Issued in 2002 as part of the restructuring of the debt of the Bank's former New York branch.
(2) Issued in 2002 as part of the restructuring of Galicia Uruguay's deposits.
(3) Excludes subordinated negotiable obligations for US$43 million held by the holding company.
(4) The terms and conditions of the advance to be requested to the Argentine Central Bank to purchase the hedge bond were established by Decree No. 905/02.
(5) Granted as part of the Galicia capitalization and liquidity plan.
In the table above, the principal amounts of the Bank's obligations with foreign creditors and local creditors contractually in payment default as of December 31, 2003, are shown under the heading "Past Due."
In the following table, all of the principal amount of the Bank's contractual obligations where a payment default was incurred is shown under the heading "Past Due/Callable."
ANNUAL LESS INTEREST PAST DUE/ THAN 1 1 TO 3 3 TO 5 OVER 5 MATURITY RATE TOTAL CALLABLE YEAR YEARS YEARS YEARS -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Banco Galicia - 9% Notes Due 2003 (1) 2003 9.0% Ps. 566.0 Ps. 566.0 - - - - Banco Galicia - Step Up Floating Rate Notes Due 2002 (1)............ 2002 3.9% 413.8 413.8 - - - - Banco Galicia - 4th Series Floating Rate Notes Due 2005 (1)............ 2005 4.0% 130.3 130.3 - - - - Banco Galicia - 5th Series Floating Rate Notes Due 2005 (1)............ 2005 4.0% 31.3 31.3 - - - - Banco Galicia - 7.875% Notes Due 2007 (2)........................... 2007 7.9% 213.0 - - 142.0 Ps. 71.0 - Banco Galicia - 7th Series Floating Rate Notes Due 2007 (2)............ 2007 Libor + 400 bp 126.6 - - 84.4 42.2 - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Galicia Uruguay - Negotiable Obligations (3) (4)............... Various 2.0% 902.7 - 123.1 260.9 184.6 Ps. 334.1 -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Negotiable Obligations - Tarjetas del Mar............................ 2002 14.9% 0.5 0.5 - - - - Negotiable Obligations - Tarjeta Naranja............................ 2002 16.5% 2.7 2.7 - - - - Negotiable Obligations - Tarjetas Cuyanas............................ 2002 16.0% 6.3 6.3 - - - - Banco Galicia - Foreign Banks' Dollar-denominated Syndicated Loan (1)................................ 2002 7.9% 733.3 733.3 - - - - Banco Galicia - Foreign Banks' Dollar-Denominated Syndicated Loan (1)................................ 2002 7.0% 240.5 240.5 - - - - Banco Galicia - International Finance Corporation Loan (1)....... 2002 4.8% 718.6 718.6 - - - - Banco Galicia - International Finance Corporation Loan (1)....... 2008 Libor + 327 bp 190.6 190.6 - - - - Banco Galicia - International American Investment Corp. Loans (1). Various 5.1% 203.8 203.8 - - - - Banco Galicia - FMO Loans (1)..... Various 4.8% 56.6 56.6 - - - - Banco Galicia - BICE Loans.......... Various Various 193.4 29.3 61.2 72.0 27.4 3.5 Cayman Branch - Trade and Financial Loans (1).......................... Various 3.8% 557.7 557.7 - - - - Banco Galicia - Other Financial Loans.............................. Various Various 33.5 3.7(1) - 20.3 9.5 - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- Argentine Central Bank - Assistance for Liquidity Support.............. 2011 CER+3.5% 5,647.1 - 258.1 732.3 929.8 3,726.9 Argentine Central Bank - Advance to Purchase the Hedge Bond............ 2012 CER+2.0% 2,442.8 - - 610.7 610.7 1,221.4 -------- -------------- ----------- --------- -------- ---------- ---------- ---------- Loan from SEDESA.................... 2007 Libor + 300 bp 189.2 - - - 189.2 - Peso-Denominated Loan from FFAEFyS.. 2008 CER+8.07% 33.5 - 6.7 13.4 13.4 - Dollar-Denominated Loan from FFAEFyS............................ 2005 8.1% 70.3 - 46.9 23.4 - - Non-Delivery Forwards............... -- -- 99.6 96.8(1) 2.8 - - - Backed Letters of Credit (1)........ -- -- 15.6 15.6 - - - - -------- -------------- ----------- ---------- -------- ---------- ---------- ---------- TOTAL............................... Ps.13,819.3 Ps.3,997.4 Ps.498.8 Ps.1,959.4 Ps.2,077.8 Ps.5,285.9 ======== ============== =========== ========== ======== ========== ========== ========== |
Principal only (does not include interest).
(1) As of December 31, 2003, included in the Bank's foreign debt restructuring completed on May 18, 2004.
(2) Issued in 2002 as part of the restructuring of the debt of the Bank's former New York branch.
(3) Issued in 2002 as part of the restructuring of Galicia Uruguay's deposits.
(4) Excludes subordinated negotiable obligations for US$43 million held by the holding company.
The principal amount of debt of the Bank's head office in Argentina and its Cayman branch subject to restructuring as of December 31, 2003, included in the tables above was Ps. 3,958.6 million.
The following table shows the principal amount, maturity and contractual interest rate of the contractual obligations assumed by the Bank as a result of the restructuring of the foreign debt mentioned in the previous paragraph. These contractual obligations are dollar-denominated. The U.S. dollar amounts have been translated into pesos at the Argentine Central Bank exchange rate at the close of May 18, 2004, the date of the restructuring's settlement.
ANNUAL PAST DUE LESS THAN 1 TO 3 3 TO 5 OVER 5 AS OF MAY 18, 2004 MATURITY INTEREST RATE TOTAL /CALLABLE 1 YEAR YEARS YEARS YEARS -------------------------------- -------- ---------------- ----------- --------- --------- -------- -------- ---------- (In millions of pesos) NEW DEBT ISSUED BONDS Floating Rate Notes Due 2010... 2010 Libor + 350 b.p. 1,025.1 - - 128.2 512.6 384.3 Step-Up Notes Due 2014......... 2014 3.0% - 7.0% 1,350.6 - - - - 1,350.6 Subordinated Notes Due 2019.... 2019 11.0% 634.0 - - - - 634.0 LOANS Floating Rate Loans Due 2010... 2010 Libor + 350 b.p. 136.6 - - 17.1 68.2 51.3 Step-Up Loans Due 2014......... 2014 3.0% - 7.0% 279.0 - - - - 279.0 Floating Rate Loans Due 2014... 2014 Libor + 85 b.p. 254.8 - - - - 254.8 Subordinated Loans Due 2019.... 2019 Libor + 78 b.p. 34.3 - - - - 34.3 Trade Debt..................... 2005 Libor + 100 b.p. 77.3 - 45.1 32.2 - - TOTAL NEW DEBT ISSUED........... PS. 3,791.7 - PS. 45.1 Ps.177.5 Ps.580.8 Ps.2,988.3 NOT RESTRUCTURED 9% Notes Due 2003.............. 2003 9.0% 62.6 62.6 - - - - Floating Rate Notes Due 2005... 2005 4.0% 2.6 2.6 - - - - Step Up Floating Rate Notes Due 2002........................... 2002 3.9% 1.5 1.5 - - - - TOTAL NOT RESTRUCTURED.......... 66.7 Ps. 66.7 - - - - -------- ---------------- ----------- -------- -------- -------- -------- ---------- TOTAL........................... Ps. 3,858.4 Ps. 66.7 Ps. 45.1 Ps.177.5 Ps.580.8 Ps.2,988.3 ======== ================ =========== ======== ======== ======== ======== ========== |
Amounts converted into pesos by using the exchange rate as of May 18, 2004 (Ps. 2.9057 per U.S. dollar). Principal only. Does not include interest.
As of December 31, 2003, the total amount of negotiable obligations in the Bank's balance sheet included Ps. 9.5 million in principal of negotiable obligations of the regional credit card companies, mainly representing dollar-denominated negotiable obligations of these companies issued under Argentine law and maturing in 2002 that had not been refinanced as of December, 31 2003.
As of December 31, 2003, Banco Galicia owed US$221.6 million to Galicia Uruguay. This debt was restructured in August 2003. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd." Being an intercompany transaction, this amount is eliminated from the Bank's consolidated deposits.
OTHER COMMITMENTS
The Bank is responsible for 14.53% of the financial debt of Correo Argentino if the contract between Correo Argentino and the Argentine government is terminated for any cause, including the bankruptcy of Correo Argentino. The Argentine government rescinded the contract with Correo Argentino on November 19, 2003. On December 16, 2003, an Argentine court declared Correo Argentino bankrupt. That decision has been appealed. As of the date of this annual report, no claims from Correo Argentino's financial creditors have been received. The Bank has provisioned the estimated amount of this contingency for Ps. 61.6 million.
As a shareholder of the water-supply concessionaires Aguas Argentinas S.A., Aguas Provinciales de Santa Fe S.A. and Aguas Cordobesas S.A., Banco Galicia has committed, along with the other shareholders, to provide financial support to these companies if they were unable to fulfill the commitments they have undertaken with international financial bodies. The Inter-American Development Bank requested that the shareholders of Aguas Argentinas S.A. and Aguas Provinciales de Santa Fe S.A. grant loans to those companies. On February 18, 2003, assistance was granted to Aguas Argentinas S.A. in the amount of US$0.6 million. On November 3, 2003, at the request of the International Financial Corporation, a loan was granted to Aguas Provinciales de Santa Fe S.A. for US$0.3 million.
See note 3 to our audited consolidated financial statements.
OTHER COMMITMENTS -- OPERATING LEASES
As of December 31, 2003, we leased certain properties used as a part of our distribution network. The estimated future lease payments in connection with these properties is as follows:
Year In millions of pesos (1) -------------- ------------------------ 2004 9.1 2005 8.1 2006 6.7 2007 4.6 2008 2.9 2009 and after 2.7 ----- TOTAL 34.1 ----- |
(1) Future lease payments include the CER adjustment until December 31, 2003, only.
CRITICAL ACCOUNTING POLICIES
We believe the following critical accounting policies applied by us and our main subsidiary, Banco Galicia, affect our more significant judgments and estimates used in the preparation of our audited consolidated financial statements.
ALLOWANCE FOR LOAN LOSSES
Banco Galicia's allowance for loan losses is maintained in accordance with Argentine Central Bank rules. Under such rules, a minimum allowance for loan losses is calculated primarily based upon the classification of Banco Galicia's commercial loan borrowers and upon delinquency aging (or the number of days the loan is past due) for Banco Galicia's individual loan borrowers (including commercial loans of less than Ps. 200,000). Although we are required to follow the methodology and guidelines for determining the loan loss allowance as set forth by the Argentine Central Bank, we are allowed to establish additional allowances for loan losses. The determination of the allowance for loan losses requires a significant degree of judgment.
For commercial loans, we are required to classify all of Banco Galicia's commercial loan borrowers. In order to perform the classification, we must consider the management and operating history of the borrower, the present and projected financial situation of the borrower, the borrower's payment history and ability to service the debt, the capability of the borrower's internal information and control systems and the risk in the sector in which the borrower operates. We apply the Argentine Central Bank minimum loss percentages to Banco Galicia's commercial loan borrowers based on the loan classification and the nature of the collateral, or guarantee, of the loan. In addition, based on the overall risk of the portfolio, we consider whether or not additional loan loss reserves in excess of the minimum required are warranted.
For Banco Galicia's consumer loan portfolio, we classify loans based upon delinquency aging, consistent with the requirements of the Argentine Central Bank. Minimum loss percentages required by the Argentine Central Bank are also applied to the totals in each loan classification.
Pursuant to Argentine Central Bank Communique "A" 3918, between March 31 and December 31, 2003, the loan loss reserve for debtors with a total indebtedness with the whole financial system of up to Ps. 5 million was established exclusively based upon delinquency aging (i.e., in the same manner as consumer loans). In accordance with the communique, between December 1, 2001, and March 31, 2003, the number of days such loans had been past due was computed taking one day for every three days past due in the period from December 1, 2001, to March 31, 2003. This treatment was also provided to the portfolio of commercial loans of up to Ps. 200.000, which under the previous rules were already automatically classified according to their delinquency aging.
In addition, Banco Galicia has significant amounts of outstanding loans to the Argentine government. These loans require no allowance for loan losses under Argentine Central Bank rules. Given the current situation in
Argentina, realization of these loans at their contractual maturity is uncertain. In 2003, the Argentine government issued regulations that permit the Bank under certain circumstances (with which the Bank has complied) to apply a portion of the proceeds of these loans to repay debt for liquidity support owed to the Argentine Central Bank. Thus, the Bank plans to offset some of the Argentine government loans against amounts due to the Argentine Central Bank.
GOVERNMENT SECURITIES AND OTHER ACCOUNTS RECEIVABLE WITH THE GOVERNMENT
Argentine Banking GAAP regarding investments in government securities allows banks to classify their portfolio of government securities into two balance sheet categories: trading and investing securities.
Government Securities in Investment Accounts Including the BODEN 2012 Received as Compensatory Bonds
We carry government securities in investment accounts at their cost plus accretion of discount or amortization of premiums and accrued interest, as applicable. For government securities previously included in trading accounts, the cost value is their closing market value as of the day before their transfer to an investment account.
The BODEN 2012 received as compensatory bonds are classified as securities in "Investment Accounts" at par value based upon Argentine Banking GAAP, notwithstanding that the estimated market value of such bonds is significantly lower than par value. As of June 25, 2004, BODEN 2012 were trading at approximately 66.90% of par value.
As market conditions change, adjustments to the estimated market value of the BODEN 2012 are not reflected in our financial position. Future sales or settlements of the BODEN 2012 will reflect the market conditions at the time and may result in a significant gain or loss that represents the difference between the settlement amount and the then carrying value.
Effective January 7, 2003, Argentine Central Bank Communique "A" 3857 restricted the possibility of classifying securities as holdings in investment accounts to those existing in the Bank's portfolio as of December 31, 2002, except for the compensatory bond received.
Other Accounts Receivable with the Government -- Compensatory and Hedge Bonds and CER/CVS Difference
The right to receive BODEN 2012 as compensatory and hedge bonds is recorded as "Other Receivables Resulting from Financial Intermediation" and is being recognized at par value of the BODEN 2012 to be issued, notwithstanding that the estimated market value of the bonds linked to this right is significantly below that carrying value. As stated above, as of June 25, 2004, BODEN 2012 were trading at approximately 66.90% of par value.
The settlement of the right to receive BODEN 2012 as compensatory and hedge bonds is subject to the approval by the Argentine Central Bank. It is reasonably possible that the ultimate delivery of the BODEN 2012 and the related commitment to fund the purchase through Argentine Central Bank borrowings will be materially different from the amounts recorded at December 31, 2003.
In accordance with Law No. 25,796, the Bank has recorded the estimated amount of the compensation for the negative effects on its equity derived from the application of the CER to deposits originally denominated in foreign currency and converted into pesos and from the application of the CVS to certain loans under "Other Receivables Resulting from Financial Brokerage." The Bank has recorded the estimated amount of the assets to be received at technical value increased on the basis of interest accrued under these assets' terms and conditions.
Trading Securities and Derivatives
We carry assets and liabilities related to our government and other securities and derivative trading portfolios at their estimated fair value. These amounts are based on either quoted market prices or estimated values derived by the Bank utilizing dealer quotes. As market conditions change, adjustments to the fair value of securities
and derivatives will be made to reflect those conditions. Future sales of these securities will reflect the market conditions at the time and may differ significantly from the estimated fair market value at the balance sheet date.
SECURED LOANS
Within the framework of Decree No. 1387/01, the Bank participated on November 6, 2001, in the exchange of Argentine public-sector debt instruments (securities and loans) issued by the national and provincial governments under the promissory note/bond program for new loans called secured loans. The main differences between the instruments received and those exchanged consisted of an extension of the amortization term, which is three years for securities originally maturing up to December 31, 2010, and a reduction of the interest rate, which is 70% of the contractual rate, with a maximum rate of 7% per annum for fixed-rate transactions and a rate equal to Libor plus 3% for floating-rate loans. As provided under the decree, the conversion was made at the nominal value, at an exchange rate of Ps. 1.0 per U.S. dollar and in the same currency as that of the converted obligation.
The Argentine Central Bank has provided that the gain arising from the difference between the carrying value of the secured loans and the book value of the securities exchanged must be recorded in an asset adjustment account and credited to income on a monthly basis in proportion to the term of each of the secured loans received.
In accordance with Decree No. 644/02, dated April 18, 2002, dollar-denominated secured loans were converted into pesos at the exchange rate of Ps. 1.40 per U.S. dollar, as provided by section 1 of Decree No. 471/02, and new fixed interest rates to be accrued by those secured loans were established by section 3 of that decree.
On March 28, 2003, the Argentine Central Bank released Communique "A" 3911, which established that secured loans and government securities not subject to the minimum capital requirement to cover market risk (mainly government securities not listed on stock exchanges), promissory notes issued by the FFDP and other financings to the public sector held in financial institution portfolios on or after March 28, 2003, must be carried at the lower of "present value" and cost basis plus accrued interest. "Present value" is defined as the "net present value" of a cash flow structure under contracted terms discounted at the rate established by the communique, which for 2003 was 3.0% per annum. See Item 4. "Information on the Company -- Argentine Financial System and Regulation -- Argentine Banking Regulation -- Valuation of Public Sector Assets."
Provincial Secured Loans
Decree No. 1579/02, dated August 28, 2002, established a new restructuring of provincial government debt. The restructuring consisted of a voluntary exchange of provincial government debt for bonds (BOGAR) or loans (promissory notes) issued by the FFDP and secured by the federal government's tax receipts shared with the provinces, with a 16-year term, a 2% fixed annual interest rate and amortization in 156 consecutive monthly installments beginning on March 4, 2005.
The Bank tendered its entire portfolio of loans to provincial governments and opted to receive promissory notes. The Bank received BOGAR for the provincial debt for which the exchange had been completed at the close of the fiscal year despite having opted to receive promissory notes. As of the date of this annual report, the Bank had not yet received the promissory notes.
Provincial secured loans are also valued in accordance with the provisions of Argentine Central Bank Communique "A" 3911.
GOODWILL
Goodwill is carried at cost less accumulated amortization. The carrying amount of goodwill is analyzed for impairment based on estimates of future undiscounted cash flows generated by the business acquired. Because of the economic conditions in Argentina and their effect on the estimated cash flows of our acquired businesses that have goodwill, adjustments for impairment of goodwill increased in 2002. Given these adjustments and the improvement in the overall Argentine economic situation in 2003, adjustments for impairment were not made in 2003. Further goodwill impairment may be possible in the short term.
INTANGIBLE ASSETS
Effective March 2003, Argentine Central Bank Communique "A" 3916 established that the difference resulting from compliance by the Bank with court decisions made in connection with amparo claims challenging the applicability of regulations on deposits with the financial system within the framework of the provisions of Law No. 25561, Decree No. 214/02 and supplementary rules should also be recorded under this caption, the amortization of which should take place in a maximum of 60 equal, consecutive monthly installments beginning in April 2003.
REPOSSESSED ASSETS AND REAL ESTATE HELD FOR SALE
We carry our repossessed asset portfolio and real estate held for sale at the lower of their carrying value or fair market value. Our estimates of fair market values of such repossessed assets and real estate held for sale consider external and internal appraisals. These appraisals are based on assumptions on market conditions and presume an ability to dispose of the assets in a reasonable time period. Should our assumptions regarding market conditions change, we would adjust our estimates of the fair value of our repossessed asset portfolio accordingly.
OTHER RECEIVABLES FROM FINANCIAL BROKERAGE AND MISCELLANEOUS RECEIVABLES
We carry other receivables from financial brokerage and miscellaneous receivables net of allowances for uncollectible amounts. Our judgment regarding the ultimate collectibility is performed on an account-by-account basis and considers our assessment of the borrower's ability to pay based on factors such as the borrower's financial condition, past payment history, guarantees and past-due status. Under the current situation in Argentina, the settlement of amounts due from and due to third parties has slowed significantly. Given this situation, it is likely that we will increase our allowances for some of the amounts due us.
EQUITY INVESTMENTS IN OTHER COMPANIES
We carry these investments at the equity method where a significant influence in the corporate decision-making process exists. In other cases, the equity investment is carried at the lower of cost plus dividends or the equity method value. These balances may be adjusted considering the effects of the new economic environment on the financial statements of these corporations.
ADVANCE TO PURCHASE THE HEDGE BOND
In connection with the Bank's right to purchase the hedge bond, the Bank has recognized the associated liability to fund the hedge bond as if the Bank had executed the debt agreement with the Argentine Central Bank. This liability to the Argentine Central Bank is denominated in pesos and accrues interest at CER plus 2.0%, retroactive to February 3, 2002, as provided by Decree No. 905/02.
U.S. GAAP - CRITICAL ACCOUNTING POLICIES
The above critical accounting policies for Argentine Banking GAAP are key accounting policies on which our financial condition and results of operations under U.S. GAAP are dependent. Such key accounting policies involve complex matters or are based on subjective judgments or decisions. Additional information in connection with certain key accounting policies for U.S. GAAP purposes follows.
ALLOWANCE FOR LOAN LOSSES
The allowance for loan losses represents the estimate of probable losses in the loan portfolio. Determining the allowance for loan losses requires significant management judgments and estimates including, among others, identifying impaired loans, determining customers' ability to pay and estimating the fair value of underlying collateral or the expected future cash flows to be received. Actual events will likely differ from the estimates and assumptions used in determining the allowance for loan losses. Because of the uncertain economic situation in Argentina and its effect on Banco Galicia's customers, it is at least reasonably possible that additional provisions for loan losses will be required in the future.
The resolution of the allowance for the outstanding secured loans and other loans to the Argentine provinces is subject to the economic and political situation in Argentina, including the ability of Argentina to repay or refinance its foreign debt and its ability to obtain additional liquidity from the International Monetary Fund or other sources. In addition, the ability of the Bank to offset outstanding secured loans against outstanding debt with the Argentine Central Bank will affect the carrying amount and the ultimate realization of the secured loans.
Should secured loans be available to offset debt due to the Argentine Central Bank or other Argentine government entities, some or all of the provisions for loan losses previously recognized may be reversed.
FAIR VALUE ESTIMATES
Quoted market price in active markets is the most reliable measure of fair value.
During 2001, and as a consequence of Decree No. 1387/01, the Bank swapped effective as of November 6, 2001, its Argentine government debt instruments under the promissory note/bond program for secured loans. An estimate of the fair value of the loans received was made absent observable quoted market prices for such loans. These loans are subject to the allowance for loan losses process described above.
In addition, as of December 31, 2002, the Bank offered to exchange certain loans to Argentine provincial governments for loans or securities issued by the FFDP as explained under " -- Critical Accounting Policies -- Secured Loans -- Provincial Secured Loans." The Bank tendered in the exchange under Decree No. 1579/02 its entire portfolio of loans to provincial governments and opted to receive promissory notes. The Bank received BOGAR for the provincial debt for which the exchange had been completed as of December 31, 2003. As of the date of this annual report, the Bank had not yet received the promissory notes.
As of December 31, 2003, under U.S. GAAP purposes and in accordance with Statement of Financial Accounting Standards No. 115, satisfaction of one monetary asset (in this case a loan) by the receipt of another monetary asset (in this case BOGAR) for the creditor is generally based on the market value of the asset received in satisfaction of the debt. In this particular case, the BOGAR being received is significantly different in structure and interest rates than the loans swapped. Therefore, such amounts should initially be recognized at their market value. The estimated fair value of the securities received will constitute the cost basis of the asset.
Under U.S. GAAP, these BOGAR are classified by the Bank as available for sale securities and recognized at market with the realized gain or loss from changes in market values recognized as a charge or credit to equity through other comprehensive income. In connection with estimating the fair value of the BOGAR, the Bank used quoted market values. There has been limited activity in the trading of these securities, and, as such, the quoted market values may not represent the price of an actual sale between a willing buyer and a willing seller or amounts at which the BOGAR will ultimately be realized.
Banco Galicia carries, for U.S. GAAP purposes, its compensatory bond and its receivable for the compensatory bond as well as its receivable for the asymmetric indexation compensation at the underlying fair market value of the securities to be received. These estimated fair market values are based on quoted market prices (as quoted on the MAE, the Argentine over-the-counter market). These fair market value quotations are based on relatively low trading volumes, and the Bank's carrying value may not be representative of the value the Bank would receive if it disposed of these securities or receivables at the year-end date. Furthermore, it is likely that the fair market values will fluctuate as economic conditions and other factors change in Argentina and it is reasonably possible that the realization and short-term carrying values of these securities will differ significantly from their carrying value at December 31, 2003.
Through Law No. 25,561 and Decrees No. 424/01, 1005/01 and 1226/01, the Argentine national government permitted taxpayers to meet their tax obligations with public-debt securities. The Bank took advantage of this opportunity by allocating Argentine Republic External Notes, which were part of its portfolio, to the payment of its tax obligations in fiscal year 2002 and part of fiscal year 2003.
Under U.S. GAAP, Argentine Republic External Notes are classified as available for sale securities and recorded at market value, the respective unrealized gain or loss being charged to the results for the year or to equity through "Other Comprehensive Income," depending on whether it represents an "other than temporary decline" in their value or not. These notes are and were in default as of December 31, 2003. There are no published market values for these securities. Virtually no trades of these securities occurred in 2003, nor could the Bank use these securities to extinguish tax liabilities.
For U.S. GAAP purposes as of December 31, 2003, the "fair value" of these securities is considered the carrying value assigned to Argentine Republic External Notes by the Argentine Central Bank for purposes of collateral values for its debt to purchase the hedge bond, and the Bank believes this is a reasonable estimate of their fair value. It is reasonably possible that the amounts realized in an actual sale will differ significantly from the estimated fair value.
Banco Galicia holds retained interests in securitization trusts. Those investments are carried at estimated fair market value. Determining fair market values of such investments requires estimating future cash flows and applying a discount rate to those cash flows. Such estimates do not purport to represent what those securities could be sold for at the balance sheet date or what those securities will be settled for. Changes in the values of such securities are common. The values are affected by the performance of the underlying loans in the trust and changes in estimated discount rates and other assumptions. Discount rates are subject to significant fluctuations as affected by, among other things, the economic and political situation in Argentina. Therefore, it is reasonably possible that the estimated fair market value of those securities will change in the near term in amounts that are material to the Bank's financial statements.
IMPAIRMENT OF ASSETS OTHER THAN LOANS
Certain assets, such as goodwill, equity investments, securities available for sale and premises and equipment, are subject to an impairment review. Asset impairment charges require considerable judgment and are recorded when market value declines below the carrying value, other than temporary declines, or where the cost of the asset is deemed to not be recoverable. Banco Galicia's assets may be subject to further impairment charges in the short term.
DEFERRED TAX ASSET VALUATION ALLOWANCE
Deferred tax assets and liabilities are recorded for the estimated future tax effects of temporary differences between the carrying amounts of assets and liabilities recorded for accounting and tax reporting purposes and for the future tax effects of net operating loss carryforwards. We had a significant amount of deferred tax assets as of December 31, 2001, December 31, 2002, and December 31, 2003, and the carrying amounts of those deferred tax assets are subject to management's judgment based on available evidence that realization is more likely than not and they are reduced, if necessary, by a valuation reserve. Based on the generation of significant tax losses in the last two years and on the uncertainty with respect to the generation of taxable income in the near term, a valuation reserve on the net deferred tax assets, except those associated with certain of the Bank's subsidiaries for which realization is more certain than not, has been recognized.
In the event that all or part of our net deferred tax assets in the future become realizable under U.S. GAAP, an adjustment to our deferred tax assets would be credited to income tax expense in the period the determination was made.
ASSETS NOT RECOGNIZED UNDER U.S. GAAP
Under U.S. GAAP, the right to purchase the hedge bond is not considered an asset under Financial Accounting Standards Board Statement of Financial Accounting Concepts No. 6, Elements of Financial Statements. Under this concepts statement, assets are defined as "... probable future economic benefits obtained or controlled by an entity as a result of past transactions or events." In addition, one of the three essential characteristics of an asset is that an entity can obtain the benefit and can control others' access to it. As of December 31, 2003, and as of December 31, 2002, the Bank could not obtain the benefit of the hedge bond until the transaction is approved by the
Argentine Central Bank and the Bank remits funds to the Argentine Central Bank. The liability under U.S. GAAP would be recognized when the Bank actually enters into the financing arrangement.
As of December 31, 2003, under Argentine Banking GAAP, the Bank had recorded under "Intangible Assets" the difference arising from the reimbursement of restructured deposits at the market exchange rate pursuant to amparo claims and the carrying value of these restructured deposits for Ps. 487.0 million. As of December 31, 2002, the value of this difference was Ps. 446.8 million, which had been recorded by the Bank under Argentine Banking GAAP under "Other Receivables from Financial Brokerage." The receivable for differences related to amparo claims does not represent an asset under U.S. GAAP.
ITEM 5B. LIQUIDITY AND CAPITAL RESOURCES
LIQUIDITY
As a financial holding company, we generate our net earnings/losses within our operating subsidiaries, including Banco Galicia, our main operating subsidiary. Until 2001, the Bank was the primary source of funds available to the holding company in the form of dividends.
The Bank's dividend-paying ability was impaired by the effects of the Argentine economic crisis since late 2001 on its income-generation capacity. In addition, like other financial institutions operating in Argentina, the Bank was prohibited from paying dividends by the Argentine Central Bank. Resolution No. 81/02 of the board of directors of the Argentine Central Bank prohibits the Bank from paying dividends for as long as financial assistance from the Argentine Central Bank is outstanding. In addition, the loan agreements entered into by the Bank as part of its foreign debt restructuring limit the Bank's ability to pay dividends on its capital stock. See Item 8. "Financial Information -- Dividend Policy and Dividends -- Dividend Policy."
Our holding company has not received dividends from the Bank since October 2001. See Item 8. "Financial Information -- Dividend Policy and Dividends -- Dividends."
The extent to which a banking subsidiary may extend credit or otherwise provide funds to the holding company is limited by Argentine Central Bank rules. For a description of these rules, see Item 4. "Information on the Company -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Lending Limits."
Our current policy is to retain earnings to pay for our operating expenses and to support the growth of our business. As of December 31, 2003, we had cash and due from banks of Ps. 1.16 million and short-term investments of Ps. 21.54 million.
Our holding company holds US$43 million of subordinated negotiable obligations issued by Galicia Uruguay and US$100 million of subordinated negotiable obligations issued by Banco Galicia in exchange for the 149 million preferred shares issued by us in connection with the Bank's foreign debt restructuring. Both of these debt instruments pay semiannual interest. We use these interest payments to pay our operating expenses.
Our holding company does not have any financial debt outstanding.
Each of our subsidiaries is responsible for its own liquidity management.
During 2001 and especially as a result of the outbreak of the Argentine crisis in late 2001 and the perpetuation of a crisis environment in 2002, like most Argentine companies, the Bank became unable to fund itself in the local and international financial capital markets. The Bank's ability to raise funds in the local and international markets declined substantially during 2001, practically disappeared by late 2001 and remained substantially limited during 2002 and 2003, except for its ability to raise short-term deposits in the Argentine market.
The default on most of the Bank's outstanding debt obligations in 2002, coupled with other effects of the Argentine crisis on us, including the overall deterioration of our loan portfolio, severely impacted our financial condition. As described under Item 4. "Information on the Company -- Business Overview -- Banco Galicia --
Galicia Capitalization and Liquidity Plan" and Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Banco Galicia's Strategy," to address its constraints and maintain its viability during this difficult period, the Bank ceased payments on its financial debt obligations and implemented the Galicia capitalization and liquidity plan in 2002. The plan's measures were aimed at restoring the Bank's liquidity in the short term, at significantly reducing operating costs (including streamlining its operations) and at restructuring its foreign debt, including deposits of foreign branches and subsidiaries, in a manner consistent with the Bank's repayment capacity in the post-crisis financial environment. In 2002, the Bank restructured the financial debt of its former New York branch and the deposits of Galicia Uruguay. In addition, the Bank focused on maximizing collections from its existing loan portfolio. In 2003, the Bank continued to focus on cost control and maximizing collections from its existing loan portfolio and on seeking to restructure the foreign indebtedness of the Bank's head office in Argentina and that of its Cayman branch, as well as the Bank's debt with the Argentine Central Bank, as described in this annual report. In the second half of 2002, the Bank's deposits began to increase, a trend that continued in 2003. As a result, the Bank's liquidity increased in 2002 and 2003, but was nevertheless insufficient to cover its operating expenses and financial commitments in accordance with their contractual terms. On May 18, 2004, the Bank completed its foreign debt restructuring.
In light of economic conditions in Argentina, it is unlikely that any long-term financing will be available to us or to the Bank for the foreseeable future. Management believes that in 2004 our holding company will fund its cash needs arising from capital expenditures and financial commitments with cash derived from our operations and the proceeds of the Galicia Uruguay and Banco Galicia securities described above and that in 2004 Banco Galicia will fund its cash needs arising from capital expenditures and financial commitments (after the recent restructuring) at their current contractual maturity with the cash derived from its operations, mainly by means of growth of its deposit base, liquidity reserves and proceeds from its loan portfolio and government securities. At the same time, the Bank will continue to focus on cost control.
As of December 31, 2003, on a consolidated basis, we had Ps. 826.2 million in available cash (defined as total cash on hand and cash equivalents).
Galicia Uruguay's activities were suspended in 2002 and remain suspended as of the date of this annual report, and Galicia Cayman is in provisional liquidation. See Item 4. "Information on the Company -- Business Overview -- Banco Galicia -- Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Ltd." Galicia Uruguay's consolidated liquidity amounted as of December 31, 2003, to Ps. 17.6 million of cash, mainly comprising deposits at the Central Bank of Uruguay and short-term placements in correspondent banks. These funds were not available to us on a consolidated basis because they were reserved for the payment of Galicia Uruguay's and Galicia Cayman's restructured deposits.
For a discussion of the Bank's liquidity management, see " -- Banco Galicia (Unconsolidated) Liquidity Management" below.
CONSOLIDATED CASH FLOWS
Our consolidated statements of cash flows were prepared using the measurement methods prescribed by the Argentine Central Bank, but in accordance with the presentation requirements of Statement of Financial Accounting Standards No. 95, Statement of Cash Flows (SFAS 95). SFAS 95 establishes specific presentation requirements and additional disclosures but does not provide guidance with respect to inflation-adjusted financial statements. In our cash flow statements, the effect of inflation restatements and foreign exchange gains and losses on cash flow related to financing and operating activities has been included in the line item "Monetary Loss," and the effect of inflation on cash balances has been included in a separate line item after cash flows from investing activities. See our consolidated cash flow statements as of and for the fiscal years ended December 31, 2003, and December 31, 2002, included in this annual report.
At the close of fiscal year 2003, our available cash (and cash equivalents) had increased in the amount of Ps. 249.3 million from Ps. 576.8 million of available cash (and cash equivalents) at the close of the prior fiscal year, representing an increase of 43.2%. This increase occurred despite our Ps. 217.1 million net loss for fiscal year 2003.
The increase in our available cash in fiscal year 2003 is explained by the following changes, classified by type of cash-providing or cash-using activity:
- the net use of cash by operating activities in the amount of
Ps. 409.8 million. This amount results from adding or
subtracting to the Ps. 217.1 million net loss for the fiscal
year (i) all of the income statement items that did not
represent a decrease or increase, respectively, in cash and
(ii) all transactions related to operating activities that
involve an increase or a decrease in cash. During 2003, the
items that did not represent a decrease in cash available and
that therefore must be added to the fiscal year net loss were
(i) depreciation and amortization of fixed assets and
intangible assets for Ps. 215.9 million; (ii) an increase in
allowances for loans and other losses, net of reversals, for
Ps. 118.9 million; and (iii) the Ps. 102.7 million increase in
assets in connection with the recording of the compensation
for asymmetric indexation. The items that did not represent an
increase in cash and that therefore must be subtracted to the
fiscal year's net loss were (i) a Ps. 324.1 million increase
in assets due to the CER adjustment accrued and (ii) the Ps.
90.2 million decrease in the receivable for the compensatory
bond related to the adjustment that the Bank made to the
carrying value of compensation to be received for asymmetric
pestification. In addition, the following items generated cash
movements: Ps. 309.2 million was used to increase government
securities (Lebac), and Ps. 33.6 million was provided in
connection with the decrease in other assets net of the
decrease in other liabilities, primarily representing interest
on these assets and liabilities and fees collected or paid,
respectively.
- the net generation of cash by investing activities in the amount of Ps. 695.6 million, mainly attributable to the net effect of: (i) the increase in available cash for Ps. 800.5 million as a result of a net decrease in the Bank's loan portfolio, reflecting primarily a decrease in Galicia Uruguay's loan portfolio ; and (ii) a Ps. 90.9 million net use of cash applied to an increase in fixed assets.
- the net use of cash by financing activities in the amount of Ps. 31.6 million, mainly attributable to: (i) a Ps. 782.7 million increase in cash generated by an increase in deposits. This increase is net of the payment by Galicia Uruguay and Galicia Cayman, during 2003, of the first and second installments contemplated in the deposit restructuring agreements reached with depositors; (ii) a Ps. 537.1 million amortization of long term indebtedness, reflecting mainly the payments by Galicia Uruguay of negotiable obligations issued by this company to restructure its deposits, which payments corresponded to the above mentioned first and second installments contemplated in the deposit restructuring agreement reached with depositors, the payment made by Galicia Uruguay to settle the exchange offered to customers in 2003 of restructured deposits for different alternatives, including a cash payment; and (iii) payments made by the Bank's Argentine operation in connection with the financial assistance for liquidity support owed to the Argentine Central Bank, mainly corresponding to the payment of interest, in the amount of Ps. 252.6 million.
Fiscal year 2002 Compared to Calendar 2001
As of December 31, 2002, our available cash (and cash equivalents) amounted to Ps. 576.8 million, Ps. 563.1 million lower than the Ps. 1,139.9 million as of December 31, 2001. The decrease in our available cash in fiscal year 2002 is explained by the following changes, classified by type of cash-providing or cash-using activity:
- the use of cash by operating activities in the amount of Ps. 936.3 million. This amount results from net losses of Ps. 1,471.5 million during the fiscal year, to which the following noncash income statement items must be added: (i) the Ps. 2,081.7 million increase in allowances for loans and other losses, net of reversals, primarily due to the deterioration of our loan portfolio; (ii) the monetary loss amounting to Ps. 1,579.8 million due to the effect of inflation on our net liquid asset position and to the high inflation rate of the year (approximately 118.44%); and (iii) a Ps. 419.1 million increase in other assets. In addition, the following noncash items must be deducted: (ii) the absorption of losses with the balance of the Unrealized Valuation Difference account, for Ps. 1,370.0 million; (ii) the recording of unrealized foreign exchange gains for Ps. 516.9 million, (iii) the Ps. 1,630.6 million increase in assets due to the CER adjustment accrued; and (iv) a Ps. 254.4 million decrease in other liabilities.
- the generation of cash by investing activities in the amount of Ps. 2,616.3 million, substantially all of which were attributable to the collection of loans. The Bank significantly reduced its loan origination activities in 2002 due to the economic crisis in Argentina and its lack of funding sources.
- the use of cash by financing activities in the amount of Ps. 1,555.8 million. This amount was mainly attributable to: (i) a Ps. 6,016.7 million net decrease in our deposits, reflecting payments on deposits; (ii) a Ps. 3,397.1 million net increase in funds from short-term borrowings, mainly reflecting net proceeds from the Argentine Central Bank financial assistance; and (iii) a Ps. 1,112.5 million net increase in repurchase agreements, also reflecting an increase in borrowings from the Argentine Central Bank.
BANCO GALICIA CONSOLIDATED LIQUIDITY GAPS
Liquidity risk is the risk that liquid assets are not available for the Bank to meet financial commitments at contractual maturity, take advantage of potential investment opportunities, and meet demand for credit.
To monitor and control liquidity risk, the Bank monitors and systematically calculates the gaps between financial assets and liabilities maturing within set time intervals based on contractual maturity. All of the deposits in current accounts and other demand deposits and deposits in savings accounts are included in the first time interval. These figures are used to simulate different liquidity crisis scenarios based on assumptions stemming from historical experience.
As of December 31, 2003, the gaps between maturities of the Bank's financial assets and liabilities based on contractual maturity were as follows:
AS OF DECEMBER 31, 2003 (1) ------------------------------------------------------------------------------------- LESS THAN OVER 10 UNDER ONE YEAR 1 - 5 YEARS 5 - 10 YEARS YEARS RESTRUCTURING TOTAL -------- ----------- ------------ ----- ------------- ----- (in millions of pesos, except ratios) ASSETS Cash and Due from Banks................... Ps. 660.6 - - - - Ps. 660.6 Argentine Central Bank - Escrow Accounts.. 227.5 - - - - 227.5 Overnight Placements...................... 15.2 - - - - 15.2 Loans..................................... 2,052.8 Ps. 1,336.3 Ps. 5,183.7 Ps. 2,053.9 - 10,626.7 Government Securities..................... 375.1 3,041.0 3,033.6 - Ps. 819.1 (2) 7,268.8 Corporate Debt Securities................. 88.3 - - 5.0 8.8 102.1 Financial Trusts (Galtrust I, II and V - Galicia Mortgage Loans Trust)........... 3.6 181.1 352.7 321.2 - 858.6 Financial Trusts (Special Fund Former Almafuerte and Mendoza Banks)........... - 271.0 - - - 271.0 Assets under Financial Lease.............. 8.9 13.1 2.5 - - 24.5 Secured Loans Granted as Collateral of the FFAEFyS Loan........................ - - 173.6 - - 173.6 TOTAL ASSETS............................ Ps. 3,432.0 Ps. 4,842.5 Ps. 8,746.1 Ps. 2,380.1 Ps. 827.9 Ps.20,228.6 LIABILITIES Saving Accounts........................... Ps. 1,121.6 - - - - Ps. 1,121.6 |
AS OF DECEMBER 31, 2003 (1) ------------------------------------------------------------------------------------- LESS THAN OVER 10 UNDER ONE YEAR 1 - 5 YEARS 5 - 10 YEARS YEARS RESTRUCTURING TOTAL -------- ----------- ------------ ----- ------------- ----- (in millions of pesos, except ratios) Demand Deposits.......................... 1,035.7 - - - - 1,035.7 Time Deposits............................ 1,893.7 Ps. 550.0 Ps. 412.1 - - 2,855.8 Restructured Deposits and CEDROS......... 320.5 164.8 72.0 - - 557.3 Lines of Credit - Domestic Banks......... 3.9 29.8 - - - 33.7 Argentine Central Bank .................. 258.1 2,883.5 4,948.4 - - 8,090.0 Negotiable Obligations................... 123.6 786.4 461.4 - - 1,371.4 Foreign Debt being Restructured ......... - - - - Ps. 3,958.6(3) 3,958.6 Other Borrowings......................... 48.0 99.4 3.5 - - 150.9 Creditors Resulting from Assets under Financial Leases......................... 7.4 8.2 2.5 - - 18.1 Other Liabilities (4).................... 376.5 319.5 6.6 - 38.8(5) 741.4 TOTAL LIABILITIES...................... Ps. 5,189.0 Ps. 4,841.6 Ps. 5,906.5 - Ps. 3,997.4 Ps.19,934.5 ----------- ----------- ----------- ------- ----------- ----------- Asset / Liability Gap.................... (1,757.0) 0.9 2,839.6 2,380.1 (3,169.5) 294.1 Cumulative Gap........................... (1,757.0) (1,756.1) 1,083.5 3,463.6 294.1 294.1 Ratio of Cumulative Gap to Cumulative Liabilities............................ (33.9)% (17.5)% 6.8% 21.7% 1.5% Ratio of Cumulative Gap to Total Liabilities............................ (8.8)% (8.8)% 5.4% 17.4% 1.5% ----------- ----------- ----------- ------- ----------- ----------- |
(1) Principal only. Does not include interest.
(2) Represents the Bank's holdings of Argentine Republic External Notes, currently comprised in the sovereign'sdebt restructuring.
(3) Aggregate principal amount of foreigndebt of the Bank's head office in Argentina and of its Cayman branch subject to restructuring, which was completed on May 18, 2004.
(4) Includes debt with a local bank (Banco de Inversion y Comercio Exterior), debt with Sedesa and the FFAEFyS, debt with retailers due to credit card operations, negotiable obligations of the regional credit card companies and miscellaneous liabilities.
(5) Includes debt with Banco de Inversion y Comercio Exterior and negotiable obligations of the regional credit card companies.
In the table above, assets and liabilities in payment default as of December 31, 2003, were included in the column under the heading "under restructuring," including the Bank's foreign debt, the restructuring of which was completed on May 18, 2004.
The Bank has established a limit for the ratio of "cumulative gap" to "total liabilities" of 25% for the "less than one year" negative gap. The table above shows that the Bank was in compliance with this limit as of December 31, 2003. It should be noted that the restructuring of the foreign debt of the Bank's head office and its Cayman branch, completed on May 18, 2004, does not affect this ratio because the new debt issued by the Bank is long-term debt maturing in more than one year, except for US$26.6 million in trade debt, which is to be repaid over 12 months beginning in June 2004, and debt that did not participate in the restructuring (US$22.9 million in aggregate principal as of May 18, 2004). The latter is not expected to generate material cash payments in 2004.
BANCO GALICIA (UNCONSOLIDATED) LIQUIDITY MANAGEMENT
The following discussion of the Bank's liquidity management excludes the consolidated companies.
Banco Galicia's policy is to maintain a level of liquid assets that allows it to meet financial commitments at contractual maturity, to take advantage of potential investment opportunities and to meet demand for credit. To set the appropriate level, forecasts are made based on historical experience and analysis of possible scenarios. This enables management to project funding needs and alternative funding sources, as well as excess liquidity and placement strategies for such funds.
As of December 31, 2003, the Bank's liquidity structure in Argentina was as follows:
AS OF DECEMBER 31, 2003 ----------------------- (in millions of pesos) Legal Requirement...................... Ps. 777.0 Excess Liquidity....................... 177.5 --------- TOTAL LIQUIDITY (1) ................... Ps. 954.5 ========= |
(1) Excludes cash of Galicia Uruguay, the Cayman branch and related companies.
Legal liquidity refers to the "minimum cash requirements" set by regulations of the Argentine Central Bank minus the permitted reduction in the requirement in the amount of the balance of the "Special Fund Former Almafuerte and Mendoza Banks" (Argentine Central Bank Resolution No. 36/03).
Excess liquidity consists of overnight placements in foreign banks, checks purchased, short-term loans to prime companies, Lebac (in each case for the last three items, with an average life not exceeding 30 days) and the balances held at the Argentine Central Bank in excess of the minimum cash requirements.
The legal requirements comprised the minimum cash requirements and the "minimum placement requirements" until November 2003, when Argentine Central Bank Communique "A" 4032 repealed the latter and unified the minimum cash requirements for peso- and dollar-denominated assets and liabilities. At the close of fiscal year 2003, the percentages of the minimum cash requirements applicable by virtue of Argentine Central Bank Communique "A" 4051 were as follows:
- demand deposits: 20%
- time deposits and CEDROs (by remaining maturity): up to 29 days: 18%; from 30 to 59 days: 14%; 60 to 89 days: 10%; 90 to 179 days: 5%; 180 to 365 days: 3%; and more than 365 days: 0%.
The assets computable for compliance with this requirement are technical cash, which comprises bills and coins, the balances of peso- and dollar-denominated deposit accounts at the Argentine Central Bank and the escrow accounts held at the Argentine Central Bank in favor of clearinghouses.
The Bank's management has defined a total liquidity objective, which was determined based on the analysis performed on the behavior of the Bank's deposits during the crisis that affected the financial system at the end of 2001 and during the first half of 2002 (considered as the "worst-case" scenario). Two liquidity levels were defined: "operational liquidity" (to address the Bank's daily operations) and "additional liquidity" (excess amount available at any possible crisis). Deposits were classified into "wholesale deposits" (deposits raised by the trading desk) and "retail deposits."
"Operational liquidity" was established at 7% of retail demand deposits and term deposits maturing in less than 10 days, plus the balance in the escrow accounts held at the Argentine Central Bank and balances in correspondent banks.
"Additional liquidity" is variable depending on the remaining maturity of total deposits, including CEDROs. As a result of the analysis performed, the Bank defined a floor for "additional liquidity" at 60% of the necessary funds to bear the worst-case scenario. "Additional liquidity" included in the table above amounted to Ps. 718.3 million, reaching 66.7% of the worst-case scenario percentage in excess of the policy determined by the Bank.
CAPITAL
Our capital adequacy is not under the supervision of the Argentine Central Bank.
Our capital management policy is designed to ensure prudent levels of capital.
We, as well as our controlled companies, except for Banco Galicia and the affiliates of Sudamericana Holding S.A. mentioned in the paragraph below, are regulated by the Commercial Companies' Law. That statute provides that the capital of a corporation cannot be less than Ps. 12,000.
The insurance companies held by Sudamericana Holding S.A. are Galicia Vida Compania de Seguros S.A., Galicia Retiro Compania de Seguros S.A., Galicia Patrimoniales Compania de Seguros S.A. and Instituto de Salta Compania de Seguros de Vida S.A. These companies meet the minimum capital requirements set by General Resolution No. 25,804 of the National Insurance Superintendency. See Item 4. "Information on the Company -- Minimum Capital Requirements of Nonbanking Companies."
As of December 31, 2003, the computable capital of the companies held by Sudamericana Holding S.A. exceeded the minimum requirement of Ps. 11.7 million by Ps. 19.6 million, representing an excess of approximately 167%.
Sudamericana Holding S.A. also holds interests in Medigap Salud S.A. (formerly, Hartford Salud S.A.) and Sudamericana Asesores de Seguros S.A. Both companies are regulated by the Commercial Companies' Law. Sudamericana Asesores de Seguros S.A. is also regulated by the National Insurance Superintendency.
The following table analyzes our capital resources as of the dates indicated.
GRUPO GALICIA ------------------------------------------------------- AS OF DECEMBER 31, ------------------------------------------------------- 2003 2002 2001 ---- ---- ---- (in millions of (in millions of February pesos, except 28, 2003, constant pesos, ratios, multiples except ratios, multiples and percentages) and percentages) Shareholders' Equity .......................... Ps. 1,462.3 Ps. 1,638.7 Ps. 3,103.5 Shareholders' Equity as a Percentage of Total Assets ........................................ 6.39% 6.86% 11.13% Total Liabilities as a Multiple of Total 14.66x Shareholders' Equity.......................... 13.59x 7.98x Tangible Shareholders' Equity(1) as a 3.21% Percentage of Total Assets....................... 5.51% 9.35% Total Capital Ratio.............................. - - - Excess Capital over Required Minimum Capital..... - - - ----------- ----------- ----------- |
(1) Tangible shareholders' equity represents shareholders' equity minus intangible assets.
The Argentine Central Bank supervises the capital adequacy of Banco Galicia on an unconsolidated basis and consolidated with its significant subsidiaries, Galicia Uruguay and the five regional credit card companies that Banco Galicia controls. The Argentine Central Bank's minimum capital requirement regime was suspended during the whole of 2002. In June 2003, the Argentine Central Bank issued a new minimum capital requirement regime, which became effective on January 1, 2004. The Bank has been in compliance with this new capital adequacy regime in 2004. See Item 4. "Information on the Company -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Capital Adequacy Requirements." For more information on Banco Galicia's capital adequacy, see Item 4. "Information on the Company -- Selected Statistical Information -- Regulatory Capital."
CAPITAL EXPENDITURES
For a description of our capital investments and capital expenditures in 2003 and our capital commitments for 2004, see Item 4. "Information on the Company -- Capital Investments and Divestitures."
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
OUR BOARD OF DIRECTORS
Our ordinary shareholders' meeting took place on April 22, 2004. The following table sets out the members of our board of directors as of April 22, 2004, all of whom are resident in Buenos Aires, Argentina, the positions they hold within Grupo Galicia, their dates of birth, their principal occupations and when their terms end.
PRINCIPAL CURRENT NAME POSITION DATE OF BIRTH OCCUPATION TERM ENDS ---------------------- ------------------------------- ----------------- ------------- -------------- Antonio Garces Chairman of the Board and Chief May 30, 1942 Banker April 23, 2005 Executive Officer Federico Braun Vice-Chairman February 4, 1948 Businessman April 23, 2005 Abel Ayerza Director May 27, 1939 Businessman April 23, 2006 Eduardo J. Zimmermann Director January 3, 1931 Businessman April 23, 2006 Silvestre Vila Moret Director April 26, 1971 Businessman April 23, 2005 Marcelo L.S. Tonini Director March 11, 1931 Businessman April 23, 2006 Pablo Gutierrez Alternate Director December 9, 1959 Banker April 23, 2006 Pedro Richards Alternate Director November 14, 1952 Businessman April 23, 2006 Maria Ofelia Alternate Director December 30, 1920 Businesswoman April 23, 2005 Hordenana de Escasany Luis Sila Monsegur Alternate Director August 15, 1936 Accountant April 23, 2005 Alejandro Maria Rojas Alternate Director July 17, 1937 Attorney April 23, 2005 Lagarde Sergio Grinenco Alternate Director May 26, 1948 Banker April 23, 2006 |
Antonio Roberto Garces: Mr. Garces obtained a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 1959. Mr. Garces is also the president of Banco Galicia and Gal Mobiliaria S.A. de Ahorro para Fines Determinados and a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires.
Federico Braun: Mr. Braun obtained a degree in industrial engineering at the School of Engineering of the Universidad de Buenos Aires. He was associated with the Bank from 1984 to 2002. Mr. Braun is president of Codigo S.A., Batel Forestal S.A., Campos de la Patagonia S.A., Garabi Forestal S.A., Martseb S.A., Pablo Lafont S.A., Estancia Anita S.A., and S.A. Importadora y Exportadora de la Patagonia; vice president of Club de Campo "Los Pinguinos" S.A., Inmobiliaria y Financiera "La Josefina" S.A., Asociacion de Supermercados Unidos and Mayoristanet.com S.A.; a Director of Asociacion Empresaria Argentina and a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires.
Abel Ayerza: Mr. Ayerza obtained a degree in business administration at the Universidad Catolica Argentina. He was associated with the Bank from 1966 to 2002. Mr. Ayerza is president of Aygalpla S.A. and a lifetime trustee (and second vice president) of the Fundacion Banco de Galicia y Buenos Aires.
Eduardo Jesus Zimmermann: Mr. Zimmermann obtained a degree in banking management at the Universidad Argentina de la Empresa. He was associated with the Bank from 1958 to 2002, including his service as a member of the Bank's board of directors from 1975 to 2002. Mr. Zimmermann is a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires.
Silvestre Vila Moret: Mr. Vila Moret studied banking administration at the Universidad Catolica Argentina. He was associated with the Bank from 1997 to 2002. Mr. Vila Moret is president of Inversora en Servicios S.A. and vice president of El Benteveo S.A. Mr. Vila Moret is the grandson of Maria Ofelia Hordenana de Escasany.
Marcelo Lorenzo Silvio Tonini: Mr. Tonini obtained a degree in banking management at the Universidad Argentina de la Empresa. He held a variety of positions at Banco Galicia beginning in 1963, including serving as a member of the board of directors of the Bank from 1985 to 1998. Currently, Mr. Tonini is president of Maradona S.A. and a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires.
Pablo Gutierrez: Mr. Gutierrez obtained a degree in business administration from the Universidad de Buenos Aires. Since 1985, he has been associated with Banco Galicia, where he serves as the head of the finance division. Mr Gutierrez is also vice president of Galicia Valores S.A. Sociedad de Bolsa, Galicia Pension Fund Ltd., Argenclear S.A. and Agrogalicia S.A. and alternate director of Sudecor Valores S.A.
Pedro A. Richards: Mr. Richards obtained a degree in economics from the Universidad Catolica Argentina and holds a master of science in management from the Sloan School of Management at the Massachusetts Institute of Technology. He was a director of the National Development Bank (BANADE). He has been associated with Banco Galicia since 1990. He was a member of the board of directors of Galicia Capital Markets S.A. between 1992 and 1994. Since August 2000, he has been our managing director. Mr. Richards is also vice president of Sudamericana Holding S.A, Galicia Warrants S.A. and Net Investment S.A.
Maria Ofelia Hordenana de Escasany: Mrs. Hordenana de Escasany held a variety of positions at various subsidiaries of Banco Galicia. Currently, she is president of the Fundacion Banco de Galicia y Buenos Aires and Santamera S.A. and vice president of Santa Ofelia S.A.
Luis Sila Monsegur: Mr. Monsegur obtained a degree in national public accounting at the Universidad de Buenos Aires. He held a variety of positions at Banco Galicia from 1962 to 1992 and is an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Alejandro Maria Rojas Lagarde: Mr. Rojas Lagarde obtained a degree in law at the Universidad de Buenos Aires. He held a variety of positions at Banco Galicia beginning in 1963. From 1965 to January 2000, he was responsible for the general counsel office of Banco Galicia. Currently, he is a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires and a director of Santiago Salud S.A.
Sergio Grinenco: Mr. Grinenco obtained a degree in economics at the Universidad Catolica Argentina and a master's degree in business administration from Babson College in Wellesley, Massachusetts. He has been associated with the Bank since 1977. Mr. Grinenco is vice president of Banco Galicia, liquidator of Galicia Equity Analysis S.A. "En Liquidacion" and a director of Galicia Valores S.A. Sociedad de Bolsa and Galicia Capital Markets S.A.. Mr. Grinenco is also an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Our board of directors may consist of between three and nine permanent members; currently it has six members. In addition, the number of alternate directors -- individuals to act in the temporary or permanent absence of a director -- has been set at six. The directors and alternate directors are elected by the shareholders at our annual general shareholders' meeting. Directors and alternate directors may be elected for either a two-or three-year term.
Some of our directors are directors of Banco Galicia. Some members of our board of directors may serve on the board of directors of any subsidiary we establish in the future.
Three of our directors are members of the families that are controlling shareholders of Grupo Galicia.
FUNCTIONS OF OUR BOARD OF DIRECTORS
Members of our board of directors serve on the following committees:
Audit Committee: In compliance with CNV rules regarding the composition of the audit committee of companies listed in Argentina, which require that the audit committee be comprised of at least three directors, with a majority of independent directors, the board of directors established an audit committee with three members. The ordinary shareholders' meeting held on April 22, 2004, elected Messrs. Eduardo Zimmermann, Marcelo L. S. Tonini and Abel Ayerza as members of the audit committee. Messrs. Zimmermann and Tonini are independent directors
under the CNV requirements and as defined by the new Nasdaq rules that become applicable to foreign private issuers like us July 31, 2005. The third member, Mr. Ayerza, a nonindependent director, was appointed to the audit committee by our board of directors. All three members of the audit committee are financially literate and have extensive managerial experience. The board of directors has determined that Mr. Tonini is the financial expert serving on its audit committee.
The audit committee is primarily responsible for (i) expressing an opinion on the board of directors' proposed independent auditor and ensuring that independence criteria are met; (ii) supervising the reliability of our internal control system, including the accounting system, and of external reporting of financial or other information; (iii) verifying compliance with the applicable conduct rules; (iv) issuing an opinion on related party transactions and disclosing any transaction where a conflict of interest exists with corporate governance bodies and controlling shareholders; and (v) reviewing the annual working plan of our internal and independent auditors, and issuing an opinion thereof. The audit committee has access to all information and documentation that it requires and is broadly empowered to fulfill its duties. For 2004, the audit committee has scheduled at least eight meetings.
Committee for Information Integrity: This committee was established in response to the U.S. Sarbanes-Oxley Act of 2002. The responsibility of this committee is to review and approve controls over the public disclosure of financial and related information, and other procedures necessary to enable our chief financial officer and chief executive officer to provide their certifications of the annual report that is filed with the U.S. Securities and Exchange Commission. The members are Messrs. Antonio Garces, Pedro Richards, Jose Luis Gentile and Adrian Enrique Pedemonte. In addition, at least one of the members of this committee attends all of the meetings of the Bank's committee for information integrity.
OUR SUPERVISORY COMMITTEE
Our bylaws provide for a supervisory committee consisting of three members who are called "syndics" and three alternate members who are called "alternate syndics." In accordance with the Argentine Companies Law and our bylaws, the syndics and alternate syndics are responsible for ensuring that all of our actions are in accordance with applicable Argentine law. Syndics and alternate syndics are elected by the shareholders at the annual general shareholders' meeting. Unlike directors, syndics and alternate syndics do not have management functions. Syndics are responsible for, among other things, preparing a report to shareholders analyzing our financial statements for each year and recommending to the shareholders whether to approve such financial statements. Alternate syndics act as alternates in the temporary or permanent absence of a syndic. Currently, there are three syndics and three alternate syndics. Syndics and alternative syndics are elected for a one-year term.
The following table shows the members of our supervisory committee. Each of our syndics was appointed at the ordinary shareholders' meeting held on April 22, 2004.
PRINCIPAL CURRENT TERM NAME POSITION OCCUPATION ENDS ------------------ ---------------- ----------------- -------------- Adolfo Melian Syndic Lawyer April 22, 2005 Norberto Corizzo Syndic Public Accountant April 22, 2005 Luis O. Oddone Syndic Public Accountant April 22, 2005 Miguel N. Armando Alternate Syndic Lawyer April 22, 2005 Alejandro H. Massa Alternate Syndic Public Accountant April 22, 2005 Miguel C. Maxwell Alternate Syndic Public Accountant April 22, 2005 |
Adolfo Hector Melian: Mr. Melian obtained a law degree at the Universidad de Buenos Aires. He has been associated with the Bank since 1970. He served as counsel to the Bank's board of directors until 1975. Mr. Melian is also a syndic of Banco Galicia and Tarjetas del Mar S.A., a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires and an alternate syndic of Tarjetas Cuyanas S.A., Tarjetas Regionales S.A. and Tarjeta Naranja S.A.
Norberto Daniel Corizzo: Mr. Corizzo obtained a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since the 1977. Mr. Corizzo is also syndic of Banco Galicia,
Tarjetas Regionales S.A., Tarjetas del Mar S.A., Tarjeta Naranja S.A., Tarjetas Cuyanas S.A., Sudecor Valores S.A. Sociedad de Bolsa, Galicia Capital Markets S.A., Galicia Valores S.A. Sociedad de Bolsa, Galicia Factoring y Leasing S.A., Agro Galicia S.A., Net Investment S.A. and Banco Galicia Uruguay S.A.
Luis Omar Oddone: Mr. Oddone obtained a degree in national public accounting at the Universidad de Buenos Aires. Mr. Oddone is president of La Cigarra S.A., vice president of Scharstorf S.A., syndic of Net Investment S.A., Tradecom Argentina S.A., Tarjetas Regionales S.A, Tarjetas del Mar S.A., Tarjetas Cuyanas S.A., Tarjeta Naranja S.A. and various other Argentine corporations and an alternate syndic of Banco Galicia.
Miguel Norberto Armando: Mr. Armando obtained a law degree at the Universidad de Buenos Aires. He was first elected a syndic of the Bank in 1986. Mr. Armando is also a director of Arnoar S.A. and an alternate syndic of Banco Galicia, EBA Holding S.A. and Tarjetas del Mar S.A.
Alejandro H. Massa: Mr. Massa obtained a degree in national public accounting at the Universidad de Buenos Aires in 1978. Mr. Massa is a partner at Deloitte & Co. S.R.L. He is a syndic of numerous companies, including Met AFJP Sudamericana Holdings S.A. and its subsidiaries, Net Investment S.A. and Galicia Warrants S.A., and an alternate syndic of Tarjetas Regionales S.A.
Miguel C. Maxwell: Mr. Maxwell obtained a degree in national public accounting at the Universidad de Buenos Aires in 1979. Mr. Maxwell has been a partner at Deloitte & Co. S.R.L. since 1986. He is a syndic of numerous companies, including Cobranzas Regionales S.A., Galicia Capital Markets S.A., Galicia Factoring y Leasing S.A., Galicia Retiro Cia. de Seguros S.A., Galicia Vida Cia de Seguros S.A., Galicia Warrants S.A., Net Investment S.A., Sudamericana Holding S.A. and Tarjetas Regionales S.A.
COMPENSATION OF DIRECTORS
We do not intend to pay fees to the members of our board of directors who are also members of the board of directors of Banco Galicia. Currently, the only compensation paid to the members of our board of directors who are also members of the board of directors of Banco Galicia is paid by Banco Galicia for their services to Banco Galicia. We intend to pay a nominal fee to those members of our board of directors who are not members of the board of directors of Banco Galicia as compensation for their services. Because we recorded a loss this fiscal year, we did not pay any fees to such directors this year. For a description of the amounts to be paid to the board of directors of Banco Galicia, see " -- Compensation of Banco Galicia's Directors" below.
We do not maintain a stock-option, profit-sharing or pension plan or any other retirement plan for the benefit of our directors, nor do our directors qualify for benefits upon termination of employment.
In connection with the Bank's foreign debt restructuring, we agreed to limit the amounts paid to the members of our board of directors during any fiscal year and agreed not to make any payments to our management in excess of market compensation. See Item 10. "Additional Information -- Material Contracts."
MANAGEMENT OF GRUPO GALICIA
Grupo Galicia's organizational structure consists of a managing director, who reports to the board of directors, and two managers who report directly to the managing director, the financial and accounting manager and the investor relations manager.
The managing director's main function is implementing policies defined by our board of directors and to oversee the financial and accounting department and investor relations.
The financial and accounting manager is mainly responsible for assessing current and potential investments, (e.g., suggesting whether we should invest or divest our position in various companies or businesses). His department also plans and coordinates our administrative services and financial resources in order to ensure their proper management. His department is also responsible for meeting requirements set by several controlling bodies,
complying with information requirements and for internal controls and budgeting. Our financial and accounting manager is Jose Luis Gentile, who was born March 15, 1956.
The investor relations manager is in charge of the functions related to communication channels and services to local and foreign institutional investors as well as retail investors and research analysts and follow-up of their opinions. He prepares periodic reports with respect to our capital stock, evolution of and trading volume. Our investor relations manager is Pablo Eduardo Firvida, who was born March 17, 1967.
We do not maintain a stock-option, profit-sharing or pension plan or any other retirement plan for the benefit of our management, nor does our management qualify for benefits upon termination of employment.
BOARD OF DIRECTORS OF BANCO GALICIA
The ordinary and extraordinary shareholders' meeting held on April 29, 2004, established the size of the Bank's board of directors at eight members and five alternate directors. The following table sets out the members of our board of directors as of April 29, 2004, all of whom are resident in Buenos Aires, Argentina, the years of appointment, position currently held by each of them, their dates of birth, their principal occupations and when their term ends. The business address of the members of the board of directors is Tte. General J. D. Peron 407, (C1038AAI) Buenos Aires, Argentina.
YEAR OF PRINCIPAL DATE OF CURRENT NAME APPOINTMENT POSITION BIRTH OCCUPATION TERM ENDS ------------------------ ----------- ------------------------- ------------------ ---------- ----------------- Chairman of the Board and Antonio R. Garces 2001 Chief Executive Officer May 30, 1942 Banker December 31, 2005 Vice-Chairman and Chief Sergio Grinenco 2003 Financial Officer May 26, 1948 Banker December 31, 2005 Enrique M. Garda Olaciregui 2003 Director and Secretary April 29, 1946 Banker December 31, 2004 Daniel A. Llambias 2004 Director February 8, 1947 Banker December 31, 2006 Luis M. Ribaya 2003 Director July 17, 1952 Banker December 31, 2004 Guillermo J. Pando 2003 Director October 23, 1948 Banker December 31, 2004 Eduardo O. Del Piano (1) (2) 2004 Director May 12, 1938 Accountant December 31, 2006 Pablo M. Garat (1) (2) 2004 Director January 12, 1953 Lawyer December 31, 2006 Guillermo A. Laje 2003 Alternate Director September 26, 1956 Banker December 31, 2005 Eduardo A. Fanciulli 2004 Alternate Director April 10, 1951 Banker December 31, 2006 Juan C. Fossatti 2003 Alternate Director September 11, 1955 Banker December 31, 2005 Osvaldo H. Canova (1) 2004 Alternate Director December 8, 1934 Accountant December 31, 2006 Julio P. Naveyra (1) 2004 Alternate Director March 24, 1941 Accountant December 31, 2006 |
(1) Authorization from the Argentine Central Bank to assume their positions is pending.
(2) In accordance with the rules of the CNV, and pursuant to the classifications adopted by the CNV, Messrs. Eduardo O. Del Piano and Pablo M. Garat are independent and were elected at the ordinary shareholders' meeting held on April 29, 2004, as members of the audit committee. Messrs. Del Piano and Garat are also independent in accordance with the new Nasdaq rules.
The following are the biographies of the members of the board of directors of the Bank:
Antonio Roberto Garces: Mr. Garces obtained a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 1959. Mr. Garces is also the president of Gal Mobiliaria S.A. de Ahorro para Fines Determinados and Grupo Galicia and a lifetime trustee of the Fundacion Banco de Galicia y Buenos Aires.
Sergio Grinenco: Mr. Grinenco obtained a degree in economics at the Universidad Catolica Argentina and a master's degree in business administration from Babson College in Wellesley, Massachusetts. He has been
associated with the Bank since 1977. Mr. Grinenco is vice president of Banco Galicia, liquidator of Galicia Equity Analysis S.A. "En Liquidacion" and a director of Galicia Valores S.A. Sociedad de Bolsa and Galicia Capital Markets S.A.. Mr. Grinenco is also an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Enrique M. Garda Olaciregui: Mr. Garda Olaciregui obtained a degree in law at the Universidad del Salvador, a master degree in finance from Universidad del CEMA and a master degree in Management Law at the Universidad Austral. He has been associated with the Bank since 1970. Mr. Garda Olaciregui is also an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Daniel Antonio Llambias: Mr. Llambias obtained a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 1964. Mr. Llambias is president of Galicia Factoring y Leasing S.A., Sudecor Valores S.A., Galicia Capital Markets S.A. and Agro Galicia S.A. He is also a director of Gal Mobiliaria S.A. de Ahorro para Fines Determinados and Galicia Valores S.A. Sociedad de Bolsa, delegate of the shareholders meeting's of Automovil Club, and an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Luis Maria Ribaya: Mr. Ribaya obtained a law degree from the Universidad de Buenos Aires. He has been associated with the Bank since 1971. Mr. Ribaya is the president of Argencontrol S.A. and Galicia Valores S.A. Sociedad de Bolsa, vice president of Sudecor Valores S.A., president of Mercado Abierto Electronico S.A., a director of Galicia Capital Markets S.A. and Agro Galicia S.A., and an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Guillermo Juan Pando: Mr. Pando has been associated with the Bank since 1969. He is president of Tarjetas Regionales S.A., Galicia Pension Fund Ltd. and Galicia Warrants S.A., vice president of Gal Mobiliaria S.A. Sociedad de Ahorro para Fines Determinados, a director of Agro Galicia S.A., Galicia Capital Markets S.A., Galicia Factoring y Leasing S.A., Tarjetas del Mar S.A., a liquidator of Galicia Equity Analysis S.A. "En Liquidacion," alternate director of Electrigal S.A. and Distrocuyo S.A. and an alternate trustee of the Fundacion Banco de Galicia y Buenos Aires.
Eduardo Oscar Del Piano: Mr. Del Piano obtained a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 2004. Mr. Del Piano is also an independent auditor of Fundacion Sociedad Rural, Sociedad Rural Argentina, Establecimientos Ortopedicos Argentina S.A., Sanatorio Otamendi Miroli S.A., Fundacion Jose Maria Aragon, Asociacion Argentina de Polo, Asociacion Argentina de Ortopedia y Traumatologia and syndic of Servicios de Salud S.A., CCI Construcciones S.A., La Rural de Palermo S.A. and OGDEN-Rural S.A.
Pablo Maria Garat: Mr. Garat obtained a degree in law at the Universidad de Buenos Aires. He has been associated with the Bank since 2004. Mr. Garat has been an official representative of the Province of Tierra del Fuego, advisor to the Argentine Senate, and he currently develops its professional independent activity at his own law firm.
Guillermo A. Laje: Mr. Laje joined the Bank in September 1997. Prior to such time, he has been employed at the former Banco Frances del Rio de la Plata since 1983. Mr. Laje is president of Sudamericana Holding S.A., vice president of Tarjetas Regionales S.A. and Visa Argentina S.A., and a director of Banelco S.A., Tarjetas Cuyanas S.A. and Tarjeta Naranja S.A.
Eduardo Antonio Fanciulli: Mr. Fanciulli obtained a degree in business administration from the Universidad de Buenos Aires. He has been associated with the Bank since 1983. Mr. Fanciulli is a director of Galicia Capital Markets S.A. and Galicia Factoring y Leasing S.A.
Juan Carlos Fossatti: Mr. Fossatti obtained a law degree from Universidad de Buenos Aires, he graduated as Doctor at the Universidad de la Republica de la Ciudad de Montevideo (Uruguay). He has been associated with the Bank since the June 6, 2002, when he was elected at the annual shareholders' meeting. Mr. Fossatti is also a director of Tierras del Bermejo S.A. and Barlocher do Brazil S.A. (Sao Paulo - Brazil).
Osvaldo Hector Canova: Mr. Canova obtained a degree in accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 2004. Mr. Canova has been a member of Harteneck, Lopez y Cia. (now PricewaterhouseCoopers) and Mcduliffe, Turquan Young. Mr. Canova is also alternate director of Telecom Argentina S.A.
Julio Pedro Naveyra: Mr. Naveyra obtained a degree in accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 2004. Mr. Naveyra has been a member of Harteneck, Lopez y Cia. (now PricewaterhouseCoopers). He is also syndic of S.A. La Nacion, Supermercados Makro S.A., IDEA S.A. and Transener S.A. and director of Telecom Personal S.A., Publicom S.A. Gas Ban S.A. and Telecom Argentina S.A.
FUNCTIONS OF THE BOARD OF DIRECTORS OF BANCO GALICIA
The board of directors may consist of three to nine permanent members. In addition, there can be one or more alternate directors who can act during the temporary or permanent absence of a director. Currently, there are five alternate directors. As of the date of this annual report, six directors and two of the five alternate directors were engaged on a full time basis in the day-to-day operations of the Bank. Messrs. Fossatti, Del Piano, Garat, Canova and Naveyra are not employees of the Bank.
The Bank's board of directors meets formally twice each week and informally on a daily basis. The board of directors is responsible for all of the major decisions, including those relating to credit, the Bank's securities portfolio, the design of the branch network and entering into new businesses.
Members of the Bank's board of directors serve on the following committees:
Risk Management Committee: This committee establishes general limits (regulatory and internally determined by the Bank), and verifies its compliance on credit risk, cross-border exposure, currency risk, interest-rate risk, liquidity, market exposure and securities position, among others. This committee meets at least once every two months. Six directors and the risk management manager are members of the risk management committee.
The Credit Committee: This committee is composed of four directors and the manager of the credit division (or, alternatively, the manager of the corporate credit department). The following officers participate on this committee depending on the type of account under analysis: (i) the manager of the wholesale banking division (or, alternatively, the managers of the corporate banking, middle market banking or corporate recovery departments) in the case of corporate customers; (ii) the manager of the retail banking division (or, alternatively, the manager of the retail credit division) in the case of individuals; and (iii) the manager of the treasury division (or, alternatively, the managers of the financial operations or financial institutions relations departments) in the case of financial institutions. The committee meets four days a week with a quorum of at least one director. The committee's function is to approve, classify and establish which customers qualify for credit exentions for amounts of more than Ps. 3.5 million in the case of corporate customers; for amounts of more than Ps. 1.0 million in the case of individuals; and for any amount in the case of financial institutions (both domestic and foreign) and related parties.
Financial Risk Policy Committee (Comision de Posicion Financiera): The members of this committee are six directors, and the managers of the retail banking, the risk management and the treasury divisions. The committee is responsible for analyzing the development of the Bank's business from a financial point of view, focusing on fund-raising and placement of assets. This committee is in charge of the follow-up and control of liquidity and interest-rate and currency gaps. The committee is responsible for creation of the Bank's policies related to each of these areas. The committee meets at least once every fifteen days.
Systems Committee: This committee is composed of six directors and the managers of the retail banking, operations, organization, wholesale banking, treasury and system divisions. The committee is in charge of supervising and approving new systems development plans and budgets. It is also responsible for supervising systems budget controls and approving the general design of the Bank's systems. This committee also supervises the quality of the Bank's systems. This committee meets at least once every three months.
Audit Committee: In accordance with Argentine Central Bank rules, the Bank's current audit committee is comprised of two nonindependent directors and the Bank's internal auditor. Messrs. Sergio Grinenco, Daniel Llambias and Luis Alberto Diaz are the current members of the Bank's audit committee.
In order to comply with the CNV rules regarding the composition of the audit committee of companies listed in Argentina, which require that the audit committee be comprised of at least three directors, with a majority
of independent directors, the ordinary shareholders' meeting held on April 29, 2004, elected Messrs. Eduardo O. Del Piano and Pablo M. Garat as independent directors to the board of directors and appointed them as members of the audit committee. The third member, Mr. Daniel Llambias, a non-independent director, was appointed to the audit committee by the Bank's board of directors. This new audit committee will begin its functions and will replace the existing audit committee, subject to the new independent directors being approved by the Argentine Central Bank and subject to the resolution of the current inconsistency between Argentine Central Bank and CNV requirements relating to the formation of audit committees, which the Bank expects in the near future.
The audit committee is primarily responsible for (i) expressing an opinion on the board of directors' proposed independent auditor and ensuring that independence criteria are met; (ii) supervising the reliability of the Bank's internal control system, including the accounting system, and of external reporting of financial or other information; (iii) verifying compliance with the applicable conduct rules; (iv) issuing an opinion on related party transactions and disclosing any transaction where a conflict of interest exists with corporate governance bodies and controlling shareholders; and (v) reviewing the annual working plan of the Bank's internal and independent auditors, and issuing an opinion thereof. The audit committee has access to all information and documentation that it requires and is broadly empowered to fulfill its duties. The audit committee meets at least once a month.
Committee for the Control and Prevention of Money Laundering (CCP): The committee is responsible for establishing the institution's general guidelines with respect to the prevention and control of money laundering, in accordance with applicable rules. It is composed of three directors, the managers of the risk management, treasury and operations divisions and the Bank's internal auditor. The committee is scheduled to meet at least once every two months. The committee's primary responsibility is to provide general objectives and policies to control and prevent money laundering.
Committee for Information Integrity: This committee was established in response to the U.S. Sarbanes-Oxley Act of 2002. The responsibility of this committee is to review and approve controls over the public disclosure of financial and related information and other procedures necessary to enable Grupo Galicia's chief financial officer and chief executive officer to provide their certifications of the annual report that is filed with the U.S. Securities and Exchange Commission. The members include three directors (including the chief financial officer), the chief information officer, the Bank's internal auditor, the managers of the wholesale banking, retail banking and treasury divisions and other key officers of the Bank. A representative of the Bank's supervisory committee is also a member of this committee. In addition, a member of Grupo Galicia's committee for information integrity attends meetings of this committee.
BANCO GALICIA'S EXECUTIVE OFFICERS
In May 2003, Banco Galicia implemented a new corporate organizational structure, and in May 2004, the credit division was created. The new structure does not include the position of chief executive officer, which had been created in 2002, whose functions returned to the board of directors.
The following divisions report to the board of directors:
DIVISION MANAGER Treasury Pablo Gutierrez Wholesale Banking Daniel Antonio Llambias (in charge) Retail Banking Guillermo A. Laje Operations Guillermo Pedro Desimoni Organization Benito Silva Systems Miguel Angel Pena Human Resources Enrique Carlos Behrends Credit Juan Carlos L'Afflitto |
Treasury: This division is responsible for planning the use of funds and for establishing and applying the Bank's funding and liquidity policy within the parameters established by the risk management board. It also manages the trading desk, ensuring the correct execution of transactions. The following areas report to the manager of the treasury division: financial operations, asset management, asset and liability management, and relations with financial institutions.
Wholesale Banking: This division is responsible for managing the Bank's business relating to the provision of financial services to corporate customers and relations with correspondent banks and multilateral credit agencies. The areas reporting to wholesale banking are: corporate banking, middle market banking, corporate recovery, international, investment banking, international businesses, capital markets and wholesale marketing.
Retail Banking: This division is responsible for managing the Bank's business relating to the provision of financial services to individuals. The areas reporting to the retail banking manager are: private banking, consumer banking, insurance, traditional distribution channels, alternative distribution channels, credit retail, marketing and quality.
Operations: This division is responsible for the processing and control of transactions arising in the Bank's daily operations and for the Bank's administrative services (purchases, maintenance and management of the Bank's physical infrastructure, etc.). The following areas report to the operations' manager: administrative services, centralized operations and traditional channels operations.
Organization: This division is responsible for the design of the Bank's organizational structure and of the different processes and procedures that make up the Bank's operations. It is also responsible for ensuring the permanent update of the Bank's processes and procedures and for providing the Bank on an ongoing basis of an updated internal regulatory framework on this respect.
Systems: This division is responsible for developing and maintaining the operational systems of the Bank. It is also responsible for ongoing system upgrading and for their efficiency and quality.
Human Resources: This division is responsible for ensuring that the Bank's management of human resources is in line with its overall strategy, both over the short and long term, through human resources policies and programs and through provision of specialized advice to the Bank's various business units. This division is also responsible for the appointment, promotion and reassignment of the Bank's human resources by means of establishing and applying hiring, training, development, compensation and benefits policies for the Bank's staff. In addition, the division manages the internal communications channel and relations with the Bank's employees and unions.
Credit: This division is responsible for defining credit risk management policies, verifying compliance with these policies, and developing the credit risk measurement and evaluation methods to be applied to the different risk products. It is also responsible for approving credit extensions while ensuring that the credit quality of the Bank's loan portfolio is preserved and generating the information in connection with credit risk required by the board of directors and by the regulatory authorities.
In addition, the internal auditor, the chief financial officer, the general counsel, the risk management manager, the chief information officer and the institutional affairs manager report to the chairman of the board and or to the vice-chairman. Mr. Sergio Grinenco is the chief financial officer. Mr. Luis Alberto Diaz is the Bank's internal auditor. Mr. Enrique Mariano Garda Olaciregui is responsible for the general counsel's office. Mr. Raul Hector Seoane is the chief information officer. Mr. Eduardo Antonio Fanciulli is responsible for the risk management division. Mr. Diego Francisco Videla is responsible for institutional affairs.
The following are the biographies of the Bank's senior executive officers mentioned above not provided in the section " -- Board of Directors of Banco Galicia" or " -- Our Board of Directors" above.
Luis Alberto Diaz: Mr. Diaz was born April 11, 1945. He obtained a degree in national public accounting from the Universidad de Buenos Aires. He has been associated with the Bank since 1965.
Raul Hector Seoane: Mr. Seoane was born July 18, 1953. He obtained a degree in economics from the Universidad de Buenos Aires. He has been associated with the Bank since 1988.
Diego Francisco Videla: Mr. Videla was born November 7, 1947. He has been associated with the Bank since 1997. Prior to such time, he acted as advisor in the privatization of the Banco de la Provincia de Misiones S.A. Mr. Videla is a voting member of Fundacion Policia Federal Argentina, Fundacion Escuela de Guerra Naval Argentina and counselor of Fundacion Fides.
Pablo Gutierrez: Mr. Gutierrez was born December 9, 1959. He obtained a degree in Business Administration from the Universidad de Buenos Aires. He has been associated with Banco Galicia since 1985. Mr. Gutierrez is also vice president of Galicia Valores S.A. Sociedad de Bolsa, Galicia Pension Fund Ltd., Argenclear S.A. and Agro Galicia S.A. and alternate director of Grupo Galicia and Sudecor Valores S.A.
Guillermo Pedro Desimoni: Mr. Desimoni was born August 20, 1960. He obtained a degree in computer science from the Universidad de Belgrano, a master in business administration from IAE-Austral University, and a master in finance from the Universidad de San Andres. He has been associated with the Bank since 1996. Mr. Desimoni is an alternate director of Tarjeta Naranja S.A. and Tarjetas Cuyanas S.A.
Miguel Angel Pena: Mr. Pena was born January 22, 1962. He obtained a degree in information systems from the Universidad Nacional Tecnologica. He has been associated with the Bank since 1994. Mr. Pena is director of Tarjeta Naranja S.A. and alternate director of Tarjetas Regionales S.A., he is also a voting member of the ONG- Usuaria (Asociacion Argentina de Usuarios de la Informatica y las Comunicaciones).
Enrique Carlos Behrends: Mr. Behrends was born January 31, 1946. He obtained a degree in sociology from the Universidad del Salvador. Mr. Behrends has been associated with the Bank since 1987. Prior to such time, he worked at Arthur Andersen, Coopers & Lybrand and Ernst & Young.
Benito Silva: Mr. Silva was born May 20, 1944. He received a bachelor's degree in operational research from the Argentine Ministry of Defense. He has been associated with the Bank since 1989. Prior to such time, he was employed with financial institutions since 1960. Mr. Silva is a director of Compensadora Electronica S.A. ("Coelsa"), and alternate director of Tarjetas Regionales S.A. and Tarjetas Cuyanas S.A.
Juan Carlos L'Afflitto: Mr. L'Afflitto was born September 15, 1958. He received a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 1986. Prior to such time, he worked at Morgan, Benedit y Asociados, where he acted as advisor and accountant. He has been a professor of "financial statements analysis" at the Universidad Catolica Argentina until 1990.
BANCO GALICIA'S SUPERVISORY COMMITTEE
Banco Galicia's bylaws provide for a supervisory committee consisting of three members ("syndics") and three alternate members ("alternate syndics"). Pursuant to Argentine Law and to the provisions of the Bank's bylaws, syndics and alternate syndics are responsible of ensuring that all of the Bank's actions are in accordance with applicable Argentine law. Unlike directors, syndics and alternate syndics do not participate in business management and cannot have managerial functions of any type. Syndics are responsible for, among other things, the preparation of a report to the shareholders analyzing the Bank's financial statements for each year and the recommendation to the shareholders as to whether to approve such financial statements. Syndics and alternate syndics are elected at the ordinary shareholders' meeting for a one-year term and they can be reelected. Alternate syndics act as alternates in the temporary or permanent absence of a syndic.
The table on the following page shows the composition of Banco Galicia's supervisory committee as they were reelected by the annual shareholders' meeting held on April 29, 2004.
YEAR OF PRINCIPAL CURRENT NAME APPOINTMENT POSITION OCCUPATION TERM ENDS ---- ----------- -------- ---------- --------- Adolfo Hector Melian 2004 Syndic Lawyer December 31, 2004 Norberto Daniel Corizzo 2004 Syndic Accountant December 31, 2004 Ricardo Adolfo Bertoglio 2004 Syndic Accountant December 31, 2004 Fernando Noetinger 2004 Alternate Syndic Lawyer December 31, 2004 Luis O. Oddone 2004 Alternate Syndic Accountant December 31, 2004 Miguel N. Armando 2004 Alternate Syndic Lawyer December 31, 2004 |
For the biographies of Messrs. Adolfo Hector Melian, Norberto D. Corizzo, Luis Omar Oddone and Miguel Norberto Armando, see " -- Our Supervisory Committee" above.
Ricardo Adolfo Bertoglio: Mr. Bertoglio obtained a degree in national public accounting at the Universidad de Buenos Aires. He has been associated with the Bank since 2002. Mr. Bertoglio is also president of Plasmer S.A.
Fernando Noetinger: Mr. Noetinger obtained a law degree at the Universidad de Buenos Aires. He has been associated with the Bank since 1987. Mr. Noetinger is also president of Arnoar S.A., Hijos de Ybarra S.A. and Promoactiva S.A., syndic of Dona Ines S.A. and alternate syndic of EBA Holding S.A. and Tarjetas del Mar S.A.
COMPENSATION OF BANCO GALICIA'S DIRECTORS
Those members of the Bank's board of directors who perform technical
and administrative functions through their participation on committees receive
an honorarium in accordance with section 25 subsection 2 of the Bank's bylaws.
Section 39 subsection 2 of the Bank's bylaws establishes a variable compensation
that consists of an incentive compensation that does not exceed 6.0% of the
Bank's pre-tax net income. For fiscal year 2003, the ordinary shareholders'
meeting held on April 29, 2004, approved remuneration for the board of directors
corresponding to technical and administrative functions for participation in
special committees, in the amount of Ps. 1,883,751.54, an amount that includes
the salaries of the directors that are also employees and the honorarium for
technical and administrative functions for the directors that exercised such
functions. The variable compensation for the fiscal years ended December 31,
2003 and 2002, and for the six-month period ended December 31, 2001, was null.
In addition, as a result of the financial assistance that the Bank received from the Argentine Central Bank, in fiscal year 2002, it was prohibited from paying any cash dividends or making any distribution on or in respect of its capital stock, transfer profits abroad, paying fees or any bonuses or variable compensations tied to the Bank's results, or granting financial assistance to related parties, for as long as such assistance is outstanding.
The Bank does not maintain a stock-option, profit-sharing or pension plan or any other retirement plan for the benefit of its directors, nor do its directors qualify for benefits upon termination of employment.
COMPENSATION OF BANCO GALICIA'S OFFICERS
While the compensation of the members of the board of directors is established in the Bank's bylaws and decided at the shareholders' meetings, it is the board of directors who establishes the policy for compensation of the Bank's personnel. Compensation for the Bank's managers includes a fixed portion and a variable portion determined by the Bank's overall results, the performance of the unit for which the manager is responsible and the manager's individual performance. The variable compensation was not applicable for the fiscal years ended December 31, 2003 and 2002, and for the six-month period ended December 31, 2001.
In addition, as a result of the financial assistance that the Bank received from the Argentine Central Bank, in fiscal year 2002, it was prohibited from paying any cash dividends or making any distribution on or in respect o its capital stock, transferring profits abroad, paying fees or any bonuses or variable compensations tied to the Bank's results, or granting financial assistance to related parties, for as long as such assistance is outstanding.
On November 4, 1999, the Bank, in its capacity as grantor, entered into a framework trust agreement with First Trust of New York, in its capacity as trustee, to implement a bonus program in favor of certain members of the senior management of the Bank and its controlled or related companies. This program was to be reviewed from time to time by the Bank's board of directors. The program's purpose was to reward and foster productivity and reward management's permanence at the Bank. Rewards under this program consisted of our shares or ADSs.
The grantor transferred to each trust pertaining to the program, as fiduciary property, certain amounts of money that were to be determined in each case pursuant to its own criteria, which were to be invested by the trustee in our shares or ADSs. The trustee was to administer such shares or ADSs for the benefit of the staff appointed as beneficiaries in each trust. The trustee was to hold title to such shares until the moment on which they shall be given to the beneficiaries as their full property in accordance with the provisions set forth in each corresponding trust.
The amount transferred by the grantor to the trustee on November 4, 2000 was US$4.0 million, which have been applied to the purchase of 855,442 shares and 189,116 ADSs of Grupo Galicia.
The Galicia 2004 Trust was established with 855,442 shares and 31,446.60 ADSs of Grupo Galicia. Moreover, 46 people holding managerial positions at the Bank and at GCM have been appointed as beneficiaries of this trust, having been assigned 855,442 shares and 28,046.60 ADSs. The 3,400 ADSs of Grupo Galicia not assigned to the trust returned to the grantor. The remaining 157,669.40 ADSs of Grupo Galicia were assigned to the Galicia 2005 Trust. The Galicia 2004 trust was terminated on June 15, 2003.
The Bank does not maintain a stock-option, profit-sharing or pension plan or any other retirement plan for the benefit of its officers, nor do its officers qualify for benefits upon termination of employment.
EMPLOYEES
As of December 31, 2003, Grupo Galicia had 6,035 employees, of whom eight were employed by the holding company, 3,831 by Banco de Galicia y Buenos Aires S.A., 40 by Galicia Uruguay, and 2,156 by the other companies required to be consolidated. Grupo Galicia's management considers its relations with its employees to be very good.
As of December 31, 2003, approximately 8.0% of Banco Galicia's employees were affiliated with the national bank union. Banco Galicia has not experienced a strike by its employees since 1973. The Bank believes that its relationship with its employees has developed within normal and satisfactory parameters despite the environment created by economic conditions in Argentina and, especially, the condition of Argentina's financial system during fiscal year 2002.
By virtue of the aforementioned situation, in 2002 strategies were created and implemented by the Bank to adapt personnel structures and costs to the prevailing business climate and prospects. Voluntary working hours reduction, temporary licensing and voluntary retirement plans were implemented, which made it possible to overcome the crisis and the transition to the reduction in Banco Galicia's staff contemplated by the Galicia capitalization and liquidity plan. These measures led the Bank to participate, during June 2002, in negotiations with the Banking Association (the Argentine banking employees' labor union) at the Ministry of Labor. As a result of those negotiations, an agreement was reached and carried out satisfactorily and with no adverse effect on the Bank's plans.
During 2003 the Human Resources Division placed special emphasis on working on the consequences of the restructuring process. In this regard, functions and appointments were reallocated so as to adjust the current staff to the new structure. This process continued at the close of the fiscal year. In addition, a reassessment of positions and a determination of key positions and staff critical for the development of the Bank's activities took place.
In 2003, the Bank maintained to the extent possible, staff training programs geared toward increasing the staff's efficiency and proficiency. Even though some high-cost programs were discontinued, the training activities contemplated in the "Generacion Galicia" program aimed at branch employees were strengthened. Within the "Generacion Galicia" distance training system, which involves 1,900 people from the branch network, 12,500 courses were offered, equivalent to 35,000 man-hours of training. Within the face-to-face training mode, specially
aimed at meeting the business needs (launching of new products and services, servicing of customers from the agribusiness sector, risk training, etc.) as well as the administrative needs derived from organizational changes, courses for a total of 8,000 hours were offered, which were taken by 558 people.
Due to the above-mentioned circumstances, during 2002 the variable compensation plans included in the Results Association Program (Programa de Asociacion a Resultados) were suspended, as well as the incorporation of new beneficiaries to the Pre-Retirement Program previously in force.
Grupo Galicia will continue its current policy of monitoring both wage levels and labor conditions in the financial industry in order to be competitive. Grupo Galicia does not maintain any pension, profit-sharing or retirement programs for its employees.
The Fundacion Banco de Galicia y Buenos Aires is an Argentine nonprofit organization that provides various services to Banco Galicia employees. The various activities of the Fundacion include, among others, managing the medical services of Banco Galicia employees and their families, purchasing school materials for the children of Banco Galicia employees and making donations to hospitals and other charitable causes, including cultural events. The Fundacion has a board of lifetime trustees, certain members of which are members of our board of directors and supervisory committee. Members and alternate members of the board of trustees do not receive remuneration for their services as trustees.
SHARE OWNERSHIP
For information on the share ownership of our directors and executive officers as of December 31, 2003, see Item 7. "Major Shareholders and Related Party Transactions -- Major Shareholders."
ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
MAJOR SHAREHOLDERS
Our controlling shareholders are members of the Escasany, Ayerza and Braun families and the Fundacion Banco de Galicia y Buenos Aires. As of May 31, 2004, the controlling shareholders owned 100% of our class A shares, through EBA Holding, which in turn owns 22.7% of our total outstanding shares, 23.7% of our class B shares and 9.9% of our preferred shares, as more fully set forth in the tables below.
Based on information that is publicly available to us, the table below sets forth, as of May 31, 2004, the number of our class A, class B and preferred shares held by holders of more than 5% of each class of shares and the percentage of each class of shares held by such holder, and the percentage of votes that each class of shares represent as a percentage of the total possible votes of Grupo Galicia.
CLASS A SHARES
% OF CLASS A % OF NAME CLASS A SHARES SHARES TOTAL VOTES EBA Holding S.A............................... 281,221,650 class A shares 100 63.4 |
CLASS B SHARES
% OF CLASS B % OF NAME CLASS B SHARES SHARES TOTAL VOTES Members of the controlling shareholders....... 192,275,547 class B shares 23.7 8.7 The Bank of New York(1)....................... 323,124,610 class B shares 39.8 14.6 Banco Santander Central Hispano(2)............ 82,741,540 class B shares 10.2 3.7 Grantham, Mayo, Van Otterloo & Co.(3)......... 60,928,900 class B shares 7.5 2.7 |
PREFERRED SHARES
% OF PREFERRED % OF NAME PREFERRED SHARES SHARES TOTAL VOTES(4) Members of the controlling shareholders....... 14,737,981 preferred shares 9.9 - Deutsche Bank (5)............................. 12,750,895 preferred shares 8.6 - Bank of America Securities Ltd. (6)........... 10,003,783 preferred shares 6.7 - |
(1) Pursuant to the requirements of Argentine law, all class B shares represented by ADSs are owned of record by The Bank of New York, as Depositary. The address for the Bank of New York is 101 Barclay Street, 22W, New York 10286, and the country of organization is the United States.
(2) Information is based on a Schedule 13 G filed by Banco Santander Central Hispano date February 16, 2001 However, we have confirmed the mentioned amount with our files based on information provided by third party companies. The address for Banco Santander Central Hispano is Plaza de Canalejas 28014, Madrid, Spain, and the country of organization is the Kingdom of Spain.
(3) Information is based on a Schedule 13 F filed by Grantham, Mayo Van Otterloo & Co. dated March 31, 2004. The address for Grantham, Mayo Van Otterloo & Co. is 40 Rowes Wharf, Boston, MA 02110, and the country of organization is the United States.
(4) The preferred shares are nonvoting shares. Upon conversion of the preferred shares into class B shares on May 13, 2005, the preferred shares will have one vote per share.
(5) Information is based on Caja de Valores's S.A. files. The address for Deutsche Bank is Avenue of the Americas 1251, New York, and the country of organization is the United States.
(6) Information is based on Caja de Valores's S.A. files. The address for Bank of America Securities Ltd. is Canada Square 5 London, and the country of organization is United Kingdom.
Based on information that is publicly available to us, the table below sets forth, as of May 31, 2004, the shareholders that either directly or indirectly have more than 5% of the votes or the shares of Grupo Galicia.
% OF % OF NAME TOTAL SHARES TOTAL CAPITAL TOTAL VOTES MEMBERS OF THE CONTROLLING SHAREHOLDERS: EBA Holding S.A............................... 281,221,650 Class A shares 22.7 63.4 Eduardo Jose Escasany......................... 15,494,498 Class B shares 1.2 (2) 0.7 (3) Maria Ofelia Escasany......................... 6,058,655 Class B shares 0.5 (2) 0.3 (3) Adela M. Ayerza de Gutierrez.................. 4,598,483 Class B shares 0.4 (2) 0.2 (3) 422,194 Preferred Shares 0.0 0.0 Maria Teresa Ayerza........................... 0 Class B shares 0.0 (2) 0.0 (3) Abel Ayerza................................... 0 Class B shares 0.0 (2) 0.0 (3) Fundacion Banco de Galicia y Buenos Aires..... 0 Class B shares 0.0 (2) 0.0 (3) OTHERS: The Bank of New York(1)....................... 323,124,610 Class B shares 26.0 14.6 Banco Santander Central Hispano............... 82,741,540 Class B shares 6.7 3.7 |
(1) Pursuant to the requirements of Argentine law, all Class B shares represented by ADSs are owned of record by the Bank of New York, as Depositary.
(2) Represents such holder's percentage ownership in our total capital stock. Such holder's ownership interest represented directly by its class B shares and preferred shares, together with its indirect ownership interest in the class A shares is as follows: Eduardo Jose Escasany 4.7%, Maria Ofelia Escasany 2.9%, Adela Maria Ayerza de Gutierrez 2.3%, Maria Teresa Ayerza 1.9%, Abel Ayerza 1.9%, and the Fundacion Banco de Galicia y Buenos Aires 1.8%.
(3) Represents such holder's voting percentage in the total possible votes of our shares. Such holder's voting interest represented directly by its class B shares, together with its indirect ownership interest in the class A shares is as follows: Eduardo Jose Escasany 10.4%, Maria Ofelia Escasany 7.0%, Adela Maria Ayerza de Gutierrez 5.4%, Maria Teresa Ayerza 5.2%, Abel Ayerza 5.2%, and the Fundacion Banco de Galicia y Buenos Aires 5.0%.
Members of the three controlling families have historically owned the majority of the issued share capital of Banco Galicia since 1959. Members of the Escasany family have been on the board of directors of Banco Galicia since 1923. The Ayerza and Braun families have been represented on the board of directors of Banco Galicia since 1943 and 1947, respectively. Currently, there are no members of these families on the Bank's board of directors, but there is one member of each family on our board of directors.
On September 13, 1999, the controlling shareholders of Banco Galicia formed EBA Holding S.A., an Argentine corporation, which is 100% owned by our controlling shareholders. EBA Holding holds 100% of our class A shares. Grupo Galicia's capital structure consists of class A shares, each of which is entitled to 5 votes, class B shares, each of which is entitled to 1 vote, and nonvoting preferred shares, each of which is convertible into class B shares on May 13, 2005.
Currently, EBA Holding only has class A shares outstanding. EBA Holding's bylaws provide for certain restrictions on the sale or transfer of its class A shares. While the class A shares of EBA Holding may be transferred to any other class A shareholder of EBA Holding, any transfer of such class A shares to third parties would automatically result in the conversion of the sold shares into class B shares, having one vote per share, of EBA Holding. In addition, EBA Holding's bylaws contain rights of first refusal, buy-sell provisions and tag-along rights.
A public shareholder of Banco Galicia, who indirectly owns in excess of 5% of the outstanding capital stock of Banco Galicia, has granted a right of first refusal for the purchase of all or part of its shares to certain of our controlling shareholders in the event such public shareholder decides to sell all or part of its Banco Galicia shares.
As of May 31, 2004, we had outstanding 811,185,367 class B shares (323,124,610 of which were evidenced by 32,312,461 ADSs) and 149,000,000 preferred shares. As of March 31, 2004, we had 59 identified United States record shareholders, of which 31 held our class B shares and 28 held our ADSs. Such United States
holders, in the aggregate, held approximately 130.9 million of our class B shares, directly or through ADSs, representing approximately 10.5% of our total outstanding capital stock as of May 31, 2004.
At May 31, 2004, we had 52 identified United States record shareholders of our preferred shares. Such United States holders, in the aggregate, held directly 35,616,647 of our preferred shares, representing approximately 2.9% of our total outstanding capital stock as of May 31, 2004.
RELATED PARTY TRANSACTIONS
Grupo Galicia is not party to any transactions with, and has not made any loan to, any of its directors, key management personnel or other related persons, nor are there any proposed transactions with such persons.
The directors of Banco Galicia have been involved in certain credit transactions with Banco Galicia as permitted by Argentine law. The Argentine Commercial Companies Law and the Argentine Central Bank's regulations allow directors of a limited liability company to enter into a transaction with such company if such transaction follows prevailing market conditions. Additionally, lending to persons or entities affiliated with Banco Galicia is subject to the regulations of the Argentine Central Bank. Such regulations set limits on the amount of credit that can be extended to affiliates based on, among other things, a percentage of the Bank's Adjusted Shareholders' Equity. See Item 4. "Information on the Company -- Argentine Banking System and Regulation -- Argentine Banking Regulation -- Lending Limits."
Banco Galicia is required by the Argentine Central Bank to present to its board of directors, on a monthly basis, a list of the outstanding amount of credit advanced to directors, controlling shareholders, officers and other related entities which is transcribed in the minute books of the board of directors. The Argentine Central Bank's rules establish that loans to directors, controlling shareholders, officers and other related entities must be granted on an equal basis with respect to rates, tenor and guarantees as loans granted to the general public.
In 2002 this practice was suspended, given that as a result of the financial assistance that the Bank had received from the Argentine Central Bank, through its Resolution No. 81, the Argentine Central Bank prohibited the Bank from paying any cash dividends or making any distribution on or in respect of its capital stock, transfer profits abroad, paying fees or any bonuses or variable compensations tied to the Bank's results, or granting financial assistance to related parties, for as long as such assistance is outstanding.
As of May 31, 2004, the latest period for which information is available, an aggregate of Ps. 94.5 million in financial assistance granted by the Bank (equity participations and credit, including guarantees granted) was outstanding to related parties. Related parties include our directors and the directors of Banco Galicia, our senior officers and senior officers of Banco Galicia and our controlling shareholders (and any entities directly or indirectly affiliated with any of these parties that are not required to be consolidated). The total amount of this financial assistance was distributed among 167 individuals and 44 companies, with the average amount of financial assistance being Ps. 0.5 million. The single largest amount of financial assistance outstanding as of May 31, 2004, was Ps. 18.3 million for Marin S.A., a holding company.
As of December 31, 2003, the aggregate amount of financial assistance granted by the Bank to related parties was Ps. 129.5 million. This was distributed among 159 individuals and 50 companies, with the average amount of financial assistance being Ps. 0.6 million. The single largest amount of financial assistance outstanding as of December 31, 2003, was Ps. 30.7 million for Freddo S.A., a company in the food industry whose shares the Bank received through a trust as payment on a defaulted debt.
As of December 31, 2002, the aggregate amount of financial assistance granted by the Bank to related parties was Ps. 138.3 million. This was distributed among 133 individuals and 40 companies, with the average amount of financial assistance being Ps. 0.8 million. The single largest amount of financial assistance outstanding as of December 31, 2002, was Ps. 29.2 million for Inversora en Servicios S.A., a holding company with participations in electricity generation and transportation.
As of December 31, 2001, the aggregate amount of financial assistance granted by the Bank to related parties was Ps. 240.8 million. This was distributed among 140 individuals and 48 companies, with the average amount of financial assistance being Ps. 1.4 million. The single largest amount of financial assistance outstanding as of December 31, 2001, was Ps. 46.6 million for Hidroelectrica Diamante S.A., a power generation company in which the Bank indirectly holds a minority interest.
Throughout this period, all financial assistance was granted to related parties on terms as favorable to the Bank as those granted to unaffiliated persons.
The Bank and Grupo Galicia have executed a trademark license agreement under which the Bank has authorized Grupo Galicia to use the word "Galicia" in its corporate name and has authorized Grupo Galicia's direct or indirect subsidiaries to use in their corporate names the Bank's registered trademarks, including the word "Galicia," in promoting their products and services. The trademark license agreement has a 10-year term, commencing as of July 1, 2000, and provides for payment of an annual royalty of Ps. 722,000.
ITEM 8. FINANCIAL INFORMATION
We have elected to provide the financial information set forth in Item 18 of this annual report.
LEGAL PROCEEDINGS
We are party to the following legal proceedings:
(i) Theseus S.A. and Lagarcue S.A. v. Grupo Financiero Galicia S.A. Summary Proceeding: The suit is seeking to have Decree No. 677/01 and Resolutions No. 400/02, 401/02 and 402/02 of the CNV declared unconstitutional and, therefore, not allow Grupo Galicia the use of the measures provided for thereunder. An injunction was initiated on September 26, 2003 demanding an order which would require that Grupo Galicia, in the event that Grupo Galicia becomes the owner of more than 95% of Banco Galicia (a situation that is not verified as of the date of this annual report), does not use the regime permitting for the exclusion of minority shareholders against Theseus S.A. and Lagarcue S.A. provided for by the above Rules when there is an almost complete ownership. The injunction was appealed and has been in a review process since November 2003. Because the proceeding is a summary proceeding, it is expected to be resolved in the near future. It should be noted that the matter, in itself, is not monetarily measurable.
(ii) Theseus S.A. et al. v. Banco de Galicia y Buenos Aires S.A. and Grupo Financiero Galicia S.A. Ordinary Proceeding: This suit was filed on March 11, 2003. The proceeding's purpose is to have the court "declare null the corporate legal act done by Grupo Galicia with the cooperation of Banco Galicia pursuant to which there was an exchange of class B shares of Banco Galicia for class B shares of Grupo Galicia." Banco Galicia and Grupo Galicia have answered the claim, arguing in defense, among other things, that there was not one act of exchange of shares but rather as many legal acts (exchange agreements) as there were shareholders who tendered their Banco Galicia shares to receive shares of Grupo Galicia (i.e., 3,172 legal acts). Therefore, in order to nullify all of the exchange contracts, it would be necessary that every single person who tendered shares be named in the suit, not just Banco Galicia and Grupo Galicia. The material effect that the suit could have, if it were successful, which is considered unlikely, is not monetarily measurable, since these additional defendants have not been included in the suit. Currently, this suit is in the discovery stage.
BANCO GALICIA
In response to legal proceedings, Banco Galicia has made reserves to cover (i) various types of claims filed by customers against Banco Galicia (e.g., claims for thefts from safe deposit boxes, the cashing of checks that had been fraudulently altered, discrepancies related to deposit and payment services rendered to its customers by the Bank, etc.) and (ii) estimated amounts payable under labor related lawsuits filed against Banco Galicia by former employees. Please refer to the captions "Litigation" and "For Severance Payments" in note 12 to our audited consolidated financial statements for additional information concerning Banco Galicia's reserves to cover these potential liabilities.
Additionally, the Bank is subject to court orders in connection with "amparo" claims, mandating the reimbursement of deposits in connection with the establishment, in December 2001, of the so called "corralito" and the compulsory conversion into pesos and rescheduling of bank deposits implemented by the Argentine government at the beginning of 2002. The amount that the Bank has had to pay to comply with these court orders has been significant, as disclosed in our audited consolidated financial statements. As of December 31, 2003 the court orders demanding payment as a consequence of such legal actions amounted up to Ps. 17.5 million and US$553.2 million and the Bank had paid, as of such date, Ps. 803.7 million and US$100.7 million.
Criminal proceedings have been initiated against various directors and managers of Banco Galicia as a result of the emergency economic legislation issued toward the end of 2001 which imposed restrictions on the Bank's dealings with its clients. None of the proceedings thus far have found grounds or evidence sufficient to direct a judgment against any director or manager of the Bank. As of the date hereof, no adverse monetary judgments have been obtained and according to the Bank's outside lawyers it is not expected that there will be any adverse judgments in the future.
As a result of the Bank's decision in May 2002 to suspend payments on its dollar-denominated foreign debt governed by foreign law, various creditors instituted legal proceedings in order to recover their lendings. Such dollar-denominated foreign debt was restructured in May 2004 with the participation of a high percentage of creditors. As of the date hereof, the board of directors of the Bank does not believe that an adverse result in such proceedings in the aggregate would have a material adverse effect on the Bank or its operations.
Banco Europeo para America Latina S.A. ("BEAL") has begun a legal proceeding against the Bank seeking the recovery of US$11 million in connection with the compulsory conversion into pesos of three forward currency contracts. Dollar amounts subject to these forward contracts were converted into pesos in accordance with Decree No. 214/02, Decree No. 992/02 and Argentine Central Bank Communique "A" 3967. The Bank has paid BEAL all outstanding amounts due under the contracts as provided for by the above mentioned regulation. In the suit, BEAL claims that the Bank made only a partial payment and contests the compulsory conversion of the original contract amounts. As of the date hereof, the Bank has answered the complaint. The Camara Nacional de Apelaciones en lo Comercial (the National Commercial Appeals Chamber) has ruled that it does not have the jurisdictional competence to adjudicate the proceeding and has ordered that it be sent to the Justicia Federal Civil y Comercial de la Capital Federal (The Federal Civil and Commercial Judiciary of the Argentine Federal Capital). Management does not consider such claim or the potential result thereof to be material.
Bank of America N.A. has sued the Argentine government over the constitutionality of Decree No. 992/02 and relevant regulations issued thereunder. Banco Galicia and the Argentine Central Bank have been named as third parties in connection with a transaction involving futures contracts subject to Argentine Law, which the Bank settled in compliance with such Decree, as it was obligated to, and for which Bank of America N.A. is claiming payment, in the event the above decree is found unconstitutional, of US$8.1 million. At its current stage, it is not expected that the proceeding would have a material adverse effect on the Bank.
DIVIDEND POLICY AND DIVIDENDS
DIVIDEND POLICY
We may only declare and pay dividends out of our retained earnings representing the profit realized on our operations and investments. The Argentine Commercial Companies Law and our bylaws state that no profits may be distributed until prior losses are covered. Dividends paid on our class A shares, class B shares and preferred shares will equal one another on a per share basis.
As required by the Argentine Commercial Companies Law, 5% of our net income is allocated to a legal reserve until the reserve equals 20% of our outstanding capital. The payment of cash dividends will not be affected by the legal reserve as long as such reserve is covered by our subsidiaries' retained earnings. Dividends may not be paid if the legal reserve has been impaired until it reaches the required level. The legal reserve is not available for distribution to shareholders.
As a holding company, our principal source of cash from which to pay dividends on our shares is dividends or other intercompany transfers from our subsidiaries, primarily Banco Galicia. Due to the Argentine crisis described in this annual report and the impact on our subsidiaries, as well as the dividend restrictions contained in the Bank's loan agreements as described below, our ability to distribute cash dividends to our shareholders has been materially and adversely affected.
Our ability to pay dividends to our shareholders in the future will principally depend on (1) our net income (on a consolidated basis), (2) availability of cash and (3) applicable legal requirements. Holders of our ADSs will be entitled to receive any dividends payable in respect of our underlying class B shares. We will pay cash dividends to the ADS depositary in pesos, although we reserve the right to pay cash dividends in any other currency, including dollars. The ADS deposit agreement provides that the depositary will convert cash dividends received by the ADS depositary in pesos to dollars and, after deduction or upon payment of fees and expenses of the ADS depositary, will make payment to holders of our ADSs in dollars.
Under the loan agreements entered into by the Bank in connection with its foreign debt restructuring, the Bank may only pay dividends on its capital stock if there is no event of default under the loan agreements and only after the aggregate principal amount of the long term instruments and medium term instruments (together, the "senior debt") issued in its foreign debt restructuring is equal to or less than 50% of the originally issued senior debt. If the Bank is able to pay dividends, it is required to repay US$2 of the long term instruments issued in its foreign debt restructuring for each US$1 of dividends paid on its capital stock.
In light of the restrictions on Banco Galicia's ability to make distributions and the Argentine situation, Grupo Galicia's current policy is to retain its earnings to pay for its operating expenses and to support the growth of the Group's business. Accordingly, the board of directors of Grupo Galicia does not plan to pay dividends in the foreseeable future.
DIVIDENDS
We did not pay any dividends in fiscal years 2002 and 2003 since Banco Galicia did not post any income that could be distributed and since the Bank is prohibited from paying any cash dividends or making any capital contributions to its affiliates or subsidiaries for so long as the Argentine Central Bank's financial assistance is outstanding. Furthermore, Argentine Central Bank Communique "A" 3785 further restricted the distribution of cash dividends by establishing that the Bank should adjust its earnings to be distributed as cash dividends with the difference between the market value and the carrying value of the compensatory and hedge bonds after netting the legal reserve and other reserves established by the Bank's bylaws.
In addition, cash and deposits we maintained on deposit at Galicia Uruguay that may have otherwise been available for distribution or to pay our operating expenses, was restructured and converted into (i) subordinated negotiable obligations for US$43 million, (ii) negotiable obligations for US$2.5 million and (iii) a savings account available on demand for US$1.4 million. In September 2003 Grupo Galicia exchanged US$1.26 million of the US$2.5 million negotiable obligations for BODEN 2012 under an exchange offer made by Galicia Uruguay.
Net losses per share and per American depositary share was Ps. 0.199 and Ps. 1.99, respectively, for the year ending December 31, 2003. Each American depositary share represents 10 common shares.
Grupo Galicia did not pay dividends for the fiscal year ended in December 2001. The last cash dividend Grupo Galicia has received from Banco Galicia was in October 2001 for Ps. 116.4 million.
SIGNIFICANT CHANGES
On May 18, 2004, the restructuring of the foreign debt of the Bank's head office and of its Cayman Branch was completed. At the expiration date of the exchange offer made by the Bank to carry out the restructuring, the aggregate principal amount of the Bank's debt subject to the restructuring amounted to US$1,344.7 million, lower than the US$1,349.6 million as of December 31, 2003, and the US$1,365.5 million as of December 31, 2002. The decrease was the consequence of repayments made by borrowers of past-due loans owed by them to the Bank, by
using existing notes (9% Notes due 2003 and Step Up Floating Rate Notes due 2002) subject to the restructuring. Creditors holding US$1,320.9 million in aggregate principal amount of the Bank's debt participated in the restructuring, representing 98.2% of all of the Bank's debt that was subject to the restructuring. This percentage was higher than the minimum percentage established by the Bank to complete the exchange offer.
We approved a capital increase through the issuance of up to 149 million preferred shares, each of them mandatorily convertible into one of our class B shares on May 13, 2005, the first anniversary date of issuance (or, if earlier, on the occurrence of a change of control of Grupo Galicia). As a result of the exercises made by the existing shareholders in our preemptive rights offering, the Bank's creditors opting for the equity participation offer in the restructuring of the foreign debt of the Bank's head office and its Cayman branch received 87.8 million preferred shares and US$30 million in cash and we received approximately US$100 million of subordinated bonds in exchange for those shares and cash. We issued the 149 million preferred shares on May 13, 2004.
No other significant changes have occurred since the date of the annual financial statements included in this annual report.
ITEM 9. THE OFFER AND LISTING
SHARES AND ADSs
Our class B shares are listed on the Buenos Aires Stock Exchange and the Cordoba Stock Exchange under the symbol "GGAL." Our ADSs, each representing ten class B shares, are listed on the Nasdaq SmallCap Market, under the symbol "GGAL." Our ADSs have been listed on Nasdaq SmallCap Market since August 2002. Previously, our ADSs were listed on the Nasdaq National Market since July 24, 2000.
On May 13, 2004, we issued our preferred shares in connection with the foreign debt restructuring of the Bank. Our preferred shares are automatically convertible into class B shares on May 13, 2005. Our preferred shares are listed on the Buenos Aires Stock Exchange and the Cordoba Stock Exchange under the symbol "GGAL6."
The following tables present for the periods indicated the high and low prices and the average trading volume of our class B shares and preferred shares on the Buenos Aires Stock Exchange as reported by the Buenos Aires Stock Exchange and the high and low prices and the average trading volume of our ADSs on Nasdaq as reported by the Nasdaq National Market and the Nasdaq Small Cap market. There has been low trading volume of our class B shares on the Cordoba Stock Exchange. The following prices have not been adjusted for any stock dividends and/or stock splits.
GRUPO GALICIA - CLASS B SHARES - BUENOS AIRES STOCK EXCHANGE (IN PESOS)
AVERAGE DAILY VOLUME IN THOUSAND CALENDAR YEAR HIGH LOW CLASS B SHARES ---- --- -------------- 2000 (from July 24).................................. 1.78 1.15 940.6 2001(1).................................. 2.19 0.40 2,908.7 2002.................................. 0.74 0.12 3,358.0 2003.................................. 2.02 0.69 4,175.3 TWO MOST RECENT FISCAL YEARS 2002 First Quarter..................... 0.74 0.26 3,828.2 Second Quarter.................... 0.44 0.12 1,724.4 Third Quarter..................... 0.29 0.20 2,431.5 Fourth Quarter.................... 0.71 0.30 5,396.5 2003 First Quarter..................... 0.84 0.69 3,003.0 Second Quarter.................... 1.36 0.76 4,310.7 Third Quarter..................... 1.49 1.10 4,634.3 Fourth Quarter.................... 2.02 1.45 4,740.7 2004 First Quarter..................... 2.61 1.96 5,199.9 Second Quarter (through June 25).. 2.39 1.42 6,163.2 MOST RECENT SIX MONTHS January 2004................................................ 2.61 2.10 5,406.9 February 2004............................................... 2.50 1.96 5,931.3 March 2004.................................................. 2.55 2.33 4,375.0 April 2004 (2).............................................. 2.39 1.98 3,855.9 May 2004.................................................... 1.94 1.42 8,596.2 June 2004 (through June 25)................................. 1.74 1.42 5,895.4 |
(2) On April 28, 2004, our class B shares began trading ex-coupon, which coupon related to the right to subscribe for the preferred shares as part of the preemptive rights offering. The value of each class B share was reduced by the value of the coupon of Ps. 0.101 per class B share.
GRUPO GALICIA - PREFERRED SHARES - BUENOS AIRES STOCK EXCHANGE (IN PESOS)
AVERAGE DAILY VOLUME IN THOUSAND HIGH LOW CLASS B SHARES ---- --- -------------- May 2004 (from May 13) ................................... 1.56 1.34 431.4 June 2004 (through June 25) .............................. 1.59 1.29 301.5 |
GRUPO GALICIA - ADSs - NASDAQ NATIONAL MARKET / NASDAQ SMALL CAP MARKET (IN US$)
AVERAGE DAILY VOLUME IN THOUSAND CALENDAR YEAR HIGH LOW ADRs ---- --- ---- 2000 (from July 24)............................. 17.69 11.88 192.7 2001 (1)............................. 22.00 3.13 672.9 2002............................. 3.45 0.22 242.8 2003............................. 6.73 2.05 238.1 TWO MOST RECENT FISCAL YEARS 2002 First Quarter................ 3.45 1.03 398.6 Second Quarter............... 1.50 0.22 243.0 Third Quarter................ 0.76 0.26 172.9 Fourth Quarter............... 2.07 0.70 166.3 2003 First Quarter................ 2.90 2.05 110.3 Second Quarter............... 4.90 2.51 339.4 Third Quarter................ 5.08 3.84 231.4 Fourth Quarter............... 6.73 5.00 266.7 2004 First Quarter................ 8.85 6.81 294.6 Second Quarter (through June 25).......................... 8.51 4.83 315.1 MOST RECENT SIX MONTHS January 2004............................................ 8.85 7.09 364.4 February 2004........................................... 8.44 6.81 316.5 March 2004.............................................. 8.83 7.76 215.9 April 2004.............................................. 8.51 7.11 223.7 May 2004................................................ 7.14 4.95 508.3 June 2004 (through June 25)............................. 5.84 4.83 207.1 |
(1) On March 27, 2001, our ADSs began trading ex-dividend. The value of each ADS was reduced by the amount of the stock dividend of US$0.2835 per ADS.
The following tables present for the periods indicated the high and low prices and the average trading volume of the Banco Galicia Class B shares on the Buenos Aires Stock Exchange as reported by the Buenos Aires Stock Exchange and the high, low and period-end sales price and the average trading volume of the Banco Galicia ADSs on the Nasdaq National Market as reported by the Nasdaq National Market. Banco Galicia's ADSs (trading symbol BGALY) were delisted from the Nasdaq National Market on July 31, 2000. Banco Galicia Class B shares continue to be listed on the Buenos Aires Stock Exchange but with very low trading volume.
BANCO GALICIA - CLASS B SHARES - BUENOS AIRES STOCK EXCHANGE (IN PESOS)
AVERAGE DAILY TRADING VOLUME ( IN THOUSAND CALENDAR YEAR HIGH LOW CLASS B SHARES) ------------- ---- --- --------------- 1999 .................................... 4.78 1.90 573.38 2000 .................................... 4.95 1.99 322.61 2001 .................................... 3.16 1.39 14.27 2002 .................................... 1.63 0.45 0.96 2003 .................................... 3.85 1.58 1.06 TWO MOST RECENT FISCAL YEARS 2002 First Quarter....................... Ps. 1.63 Ps. 0.80 1.27 Second Quarter...................... 0.70 0.45 0.19 Third Quarter....................... 0.45 0.45 0.23 Fourth Quarter...................... 1.60 0.53 2.17 2003 First Quarter....................... Ps. 1.90 Ps. 1.58 0.95 Second Quarter...................... 2.75 1.90 1.52 Third Quarter....................... 2.70 2.20 0.99 Fourth Quarter...................... 3.85 2.73 0.82 2004 First Quarter....................... Ps. 5.10 Ps. 3.70 1.12 Second Quarter (through June 25).... 5.00 3.85 0.56 MOST RECENT SIX MONTHS December 2003............................. Ps. 3.85 Ps. 3.00 0.39 January 2004.............................. 5.10 3.70 0.99 February 2004............................. 4.90 4.50 0.39 March 2004................................ 5.00 4.50 1.89 April 2004................................ 5.00 5.00 0.01 May 2004.................................. 4.75 4.20 0.84 June 2004 (through June 25)............... 4.60 3.85 0.78 |
BANCO GALICIA - ADSs - NASDAQ NATIONAL MARKET (IN US$)
AVERAGE DAILY TRADING VOLUME (IN THOUSANDS OF CLASS B CALENDAR YEAR HIGH LOW SHARES)(1) ------------- ---- --- ---------- 1999................................ US$21.90 US$ 9.19 2,706.15 2000................................ 22.44 12.75 1,889.97 |
ARGENTINE SECURITIES MARKET
The principal and oldest exchange for the Argentine securities market is the BASE. Securities listed on the BASE include corporate equities and bonds and government securities. Bonds listed on the BASE may also be listed on the MAE. As a result of an agreement between the Buenos Aires Stock Market and the Argentine OTC Market, equity securities are traded exclusively on the BASE and debt securities (both public and private) are traded on both the Argentine OTC Market and the BASE.
The Buenos Aires Stock Market (the "MERVAL"), which is affiliated with
the BASE, is the largest stock market in Argentina. The MERVAL is a corporation
whose 147 shareholder members are the only individuals and entities authorized
to trade, either as principal or as agent, in the securities listed on the BASE.
Trading on the BASE is conducted by continuous open outcry, or the traditional
auction system, from 11:00 a.m. to 5:00 p.m. each business day of the year.
Trading on the BASE is also conducted through SINAC. SINAC is a computer trading
system that permits trading in debt securities and equity securities from 11:00
a.m. to 6:00 p.m. SINAC is accessed by brokers directly from workstations
located at their offices. Currently, all transactions relating to listed
negotiable obligations and listed government securities can be effected on
SINAC. In addition, a substantial over-the-counter market exists for private
trading in listed debt securities and, prior to the agreement, equity
securities. Such trades are reported on the Argentine OTC Market, an electronic
OTC reporting system.
Although companies may list all of their capital stock on the BASE, in most cases a continuing block is retained by the controlling shareholders. This results in only a relatively small percentage of most companies' stock being available for active trading by the public on the BASE. Even though individuals have historically constituted the largest group of investors in Argentina's equity markets, in recent years, banks and insurance companies have shown an interest in these markets. Argentine pension funds also represent an increasing percentage of BASE trading activity. As of May 31, 2004, such pension funds' participation represented approximately 5.1% of market capitalization. Argentine mutual funds (fondos communes de inversion), by contrast, continue to have very low participation in the market. Although 108 companies had equity securities listed on the BASE as of May 31, 2004, the 10 most-traded domestic companies on the exchange accounted for approximately 87% of total trading value. Our shares were the most-traded shares on the BASE in May 2004, with a 29.6% share of trading volume.
The Cordoba Stock Exchange is another important stock market in Argentina. Securities listed on the Cordoba Stock Exchange include both corporate equities and bonds and government securities. Through an agreement with BASE, all of the securities listed on the BASE are authorized to be listed and subsequently traded on the Cordoba Stock Exchange. Thus, many transactions that originate on the Cordoba Stock Exchange relate to companies listed on the BASE and such trades are subsequently settled in Buenos Aires.
MARKET REGULATIONS
The CNV oversees the regulation of the Argentine securities markets and is responsible for authorizing public offerings of securities and supervising intermediaries, public companies and mutual funds. Argentine pension funds and insurance companies are regulated by separate government agencies while financial institutions are regulated mainly by the Argentine Central Bank. The Argentine securities markets are governed generally by Law No. 17,811, as amended, which created the CNV and regulates stock exchanges, market operations and public offering of securities.
In compliance with the provisions of Law No. 20,643 and the Decrees No. 659/74 and No. 2220/80, most debt and equity securities traded on the exchanges and the Argentine OTC Market must, unless otherwise instructed by the shareholders, be deposited by the shareholders in Caja de Valores S.A., which is a corporation owned by the BASE, the Buenos Aires Stock Market and certain provincial exchanges. Caja de Valores is the central securities depository of Argentina which provides central depository facilities for securities and acts as a transfer and paying agent in connection therewith. It also handles settlement of securities transactions carried out by the BASE and operates the computerized exchange information system.
There is a relatively low level of regulation of the market for Argentine securities and investors' activities in that market, and enforcement of existing regulatory provisions has been extremely limited. Furthermore, there may be less publicly available information about Argentine companies than is regularly published by or about companies in the United States and certain other countries. However, the CNV has taken steps to strengthen disclosure and regulatory standards for the Argentine securities market, including the issuance of regulations prohibiting insider trading and requiring insiders to report on their ownership of securities, with associated penalties for noncompliance.
In order to improve Argentine securities market regulation, Decree No. 677/01, "Capital Transparency and Best Practices," was promulgated and took effect June 1, 2001. This decree has come to be regarded as the financial consumer's "bill of rights." Its objective is to provide transparency and protection to participants in the capital markets. The decree applies to individuals and entities that participate in the public offering of securities and as well as to stock exchanges. Among its key provisions, the decree broadens the definition of "security"; governs the treatment of negotiable securities, obligates publicly listed companies to form audit committees composed of three or more members of the board of the directors, the majority of whom must be independent under CNV regulations; authorizes market-stabilization transactions under certain circumstances; governs insider trading, market manipulation and securities fraud; and regulates going-private transactions and acquisitions of voting shares, including controlling stakes in public companies.
In order to offer securities to the public in Argentina, an issuer must meet certain requirements of the CNV regarding assets, operating history, management and other matters, and only securities for which an application for a public offering has been approved by CNV may be listed on the corresponding stock exchange. This approval does not imply any kind of certification of assurance related to the merits of the quality of the securities, or the solvency of the issuer. Issuers of listed securities are required to file unaudited quarterly financial statements and audited annual financial statements, as well as various other periodic reports, with the CNV and the corresponding stock exchange.
ITEM 10. ADDITIONAL INFORMATION
DESCRIPTION OF OUR BYLAWS
GENERAL
Set forth below is a brief description of certain provisions of Grupo Galicia's bylaws and Argentine law and regulations with regard to Grupo Galicia's capital stock. Your rights as a holder of our capital stock are subject to Argentine corporate law, which may differ from the corporate laws of other jurisdictions. This description is not purported to be complete and is qualified in its entirety by reference to Grupo Galicia's bylaws, Argentine law and the rules of the Buenos Aires Stock Exchange, the Cordoba Stock Exchange as well as the National Securities Commission (Comision Nacional de Valores, the "CNV"). A copy of Grupo Galicia's bylaws has been filed with and can be examined at the CNV in Buenos Aires and the SEC in Washington, D.C.
Grupo Galicia was incorporated on September 14, 1999, as a stock corporation (sociedad anonima) under the laws of Argentina and registered on September 30, 1999, with the Argentine Superintendency of Companies (Inspeccion General de Justicia) under corporate registration number 14,519 of Book 7, Volume of Stock Corporations. Our domicile is in Buenos Aires, Argentina. Under our bylaws, the duration of Grupo Galicia is until June 30, 2100. This duration may be extended by resolution taken at a general extraordinary shareholders' meeting.
During the shareholders' meeting held on April 23, 2003, we decided not to adhere to the "Optional Statutory System for the Mandatory Acquisition of Shares in a Public Offering" regime in compliance with Decree No. 677/01, which requires a company to announce whether it has adopted this regime.
OUTSTANDING CAPITAL STOCK
The total subscribed and paid in share capital of Grupo Galicia as of
December 31, 2003 amounted to Ps. 1,092,407,017. The outstanding capital stock
of Grupo Galicia consists of class A ordinary shares (the "class A shares") and
class B ordinary shares (the "class B shares"), each with a par value of Ps.
1.00. The following table presents the number of our shares outstanding as of
December 31, 2003, and the voting interest that the shares represent.
AS OF DECEMBER 31, 2003 NUMBER % OF SHARES OF SHARES CAPITAL STOCK % OF VOTING RIGHTS ------ --------- ------------- ------------------ Class A shares 281,221,650 25.7% 63.4% Class B shares 811,185,367 74.3% 36.6% ------------- ----- ----- Total 1,092,407,017 100.0% 100.0% ============= ===== ===== |
No further class A shares are allowed to be issued.
As part of the Bank's foreign debt restructuring, on May 13, 2004, we issued 149 million preferred shares, with Ps. 1.00 par value, representing 12% of our total capital stock, on a fully diluted basis. The preferred shares are non voting shares, with preference in the event of the liquidation of Grupo Galicia and will be automatically and mandatorily converted into class B shares on May 13, 2005. As payment for the issuance of the shares, we received US$100 million of the Bank's subordinated bonds. After giving effect to the issuance of the preferred shares, we have a total of 1,241,407,017 shares outstanding. The following table represents the number of our shares outstanding as of June 30, 2004, and the voting interest that the shares represent.
AS OF JUNE 30, 2004 NUMBER % OF SHARES OF SHARES CAPITAL STOCK % OF VOTING RIGHTS ------ --------- ------------- ------------------ Class A shares.............................. 281,221,650 22.7% 63.4% Class B shares.............................. 811,185,367 65.3% 36.6% ----- ----- Preferred shares (1)........................ 149,000,000 12.0% 0.0% ============= ----- ----- Total....................................... 1,241,407,017 100.0% 100.0% ============= ----- ----- |
REGISTRATION AND TRANSFER
The class B shares are book-entry common shares held through Caja de Valores S.A. Caja de Valores maintains a stock registry for Grupo Galicia and only those persons listed in such registry will be recognized as shareholders of Grupo Galicia. Caja de Valores periodically delivers to Grupo Galicia a list of the shareholders at certain date.
The class B shares are transferable on the books of Caja de Valores. Caja de Valores records all transfers in Grupo Galicia's registry. Within 10 days of such transfer, Caja de Valores is required to confirm the registration of transfer with the transferor.
Of the 149 million preferred shares recently issued 138 million shares are in the form of a Global Certificate deposited in Caja de Valores and about 11 million shares are certificated shares corresponding to US Persons and Grupo Galicia maintains the registry and records all transfers.
VOTING RIGHTS
At shareholders' meetings, each class A share is entitled to five votes and each class B share is entitled to one vote. However, class A shares are entitled to only 1 vote in certain matters, such as:
- a merger or spin-off in which Grupo Galicia is not the surviving corporation, unless the acquirer's shares are authorized to be publicly offered or listed on any stock exchange;
- a transformation in Grupo Galicia's legal corporate form;
- a fundamental change in Grupo Galicia's corporate purpose;
- a removal of Grupo Galicia's domicile outside Argentina;
- a voluntary termination of Grupo Galicia's public offering or listing authorization;
- a continuation of Grupo Galicia following a delisting or a mandatory cancellation of its public offering or listing authorization;
- a total or partial recapitalization of the statutory capital of Grupo Galicia following a loss; or
- the appointment of syndics.
All distinctions between our class A shares and our class B shares will be eliminated upon the occurrence of any of the following change of control events:
- EBA Holding sells 100% of its class A shares;
- EBA Holding sells a portion of its Grupo Galicia class A shares to a third person who, when aggregating all Grupo Galicia class A shares with Grupo Galicia class B shares owned by such person, if any, obtains 50% plus one vote of our total votes; or
- the current shareholders of EBA Holding sell shares of EBA Holding that will allow the buyer to exercise more than 50% of the voting power of EBA Holding at any general shareholders' meeting of EBA Holding shareholders, except for transfers to other current shareholders of EBA Holding or to their heirs or their legal successors or to entities owned by any of them.
On June 5, 2000, our board of directors passed a resolution to clarify that any transfer by EBA Holding, including by way of a sale, exchange, gift, assignment of voting rights, spin-off or merger of EBA Holding, which results in a transfer of Grupo Galicia to any entity or individual, would trigger a change of control event. In addition, the board of directors clarified that if EBA Holding were to transfer a portion of its Grupo Galicia class A shares with 5 votes to a transferee, all distinctions between our class A shares and our class B shares will be eliminated if, when aggregating the 5 votes to the votes of the other shares that such transferee may have or acquire in the future, such transferee acquires more than 50% of all of the outstanding votes of Grupo Galicia.
Our board of directors also clarified that when two or more persons act or agree to act in concert or through entities which are under common control with such persons, such persons would be treated as one person.
In addition, on July 2001, the limitation on selling class B shares belonging to the control group was canceled.
LIMITED LIABILITY OF SHAREHOLDERS
Shareholders are not liable for our obligations. Shareholders' liability is limited to the payment of the shares for which they subscribe. However, shareholders who have a conflict of interest with us and do not abstain from voting may be held liable for damages to us. Also, shareholders who willfully or negligently vote in favor of a resolution that is subsequently declared void by a court as contrary to Argentine law or our bylaws may be held liable for damages to us or to third parties, including other shareholders, resulting from such resolutions.
DIRECTORS
Our bylaws provide that the board of directors shall be composed by at least three and at most nine members, as decided at a general ordinary shareholders' meeting. To be appointed to our board of directors, such person must have been presented as a candidate by shareholders who represent at least 10% of the voting rights of Grupo Galicia, at least three business days before the date the general ordinary shareholders' meeting is to be held.
At each annual shareholders' meeting, the term of one third of the members of our board of directors (no fewer than three directors) expires and their successors are elected to serve for a term of three years. This system of electing directors is intended to help maintain the continuity of the board. Alternate directors replace directors until the following general ordinary shareholders' meeting is held. Directors may also be replaced by alternate directors if a director will be absent from a board meeting. The board of directors is required to meet at least once every month and anytime any one of the directors or syndics requests.
Our bylaws state that the board of directors may decide to appoint an executive committee and/or a delegate director.
APPOINTMENT OF DIRECTORS AND SYNDICS BY CUMULATIVE VOTING
The Argentine Companies Law provides for the use of cumulative voting to enable minority shareholders to appoint members of the board of directors and syndics. Upon the completion of certain requirements, shareholders are entitled to appoint up to one third of the vacancies to be filled on the board of directors by cumulative voting. Each shareholder voting cumulatively has the number of votes resulting from multiplying the number of votes to which such shareholder would normally be entitled by the number of vacancies to be filled. Such shareholder may apportion his votes or cast all such votes for one or a number of candidates not exceeding one third of the vacancies to be filled.
COMPENSATION OF DIRECTORS
The Argentine Commercial Companies Law and the CNV establish rules regarding the compensation of the directors. The maximum amount of aggregate compensation that the members of the board of directors may receive, including salaries and other compensation for the performance of permanent technical and administrative services, may not exceed 25.0% of profits of each fiscal year. Said maximum amount shall be limited to 5.0% when no dividends are distributed to the shareholders and shall be increased proportionately to the dividend distribution until the 25.0% limit is reached when all profits are distributed.
The Argentine Commercial Companies Law provides that aggregate director compensation may exceed the maximum percentage of adjusted net income in any one year when the Company's profits are nonexistent or too small as to allow payment of a reasonable compensation to Board members which have been engaged in technical or administrative services to the Company, provided that such proposal is described in the notice of the agenda for the ordinary shareholders' meeting and is approved by a majority of Grupo Galicia's shareholders present at such shareholders' meeting.
Besides the legal regulations described above, the bylaws of Grupo Galicia dictate that the Board members are to be compensated according to the best practices and national and international market standards to compensate directors with similar duties and responsibilities.
SYNDICS
Our bylaws, in accordance with Argentine law, provide for the maintenance of a supervisory committee whose members are three permanent syndics and three alternate syndics. Syndics are elected for a one-year term and may be reelected. Alternate syndics replace permanent syndics in case of absence. For the appointment of syndics, each of our class A shares and class B shares has only one vote. Fees for syndics are established by the shareholders at the annual ordinary shareholders' meeting. Their function is to oversee the management of the company, to control the legality of the actions of the board of directors, to attend all board of directors' meetings, to
attend all shareholders' meetings, to prepare reports for the shareholders on the financial statements with their opinion, and to provide information regarding the company to shareholders that represent at least 2% of the capital stock. Syndics' liabilities are joint and several and unlimited for the nonfulfillment of their duties. They are also jointly and severally liable, together with the members of the board of directors, if the proper fulfillment of their duties as syndics would have avoided the damage or the losses caused by the members of the board of directors.
SHAREHOLDERS' MEETINGS
Shareholders' meetings may be ordinary meetings or extraordinary meetings. An annual ordinary shareholders' meeting is required to be held in each fiscal year to consider the matters outlined in Article 234 of the Argentine Commercial Companies Law, including:
- approval of Grupo Galicia's financial statements and general performance of the management for the preceding fiscal year;
- appointment and remuneration of directors and members of the supervisory committee;
- allocation of profits; and
- any other matter the board of directors decides to submit to the shareholders' meeting concerning the company's business administration. Matters which may be discussed at these or other ordinary meetings include resolutions regarding the responsibility of directors and members of the supervisory committee, as well as capital increases and the issuance of negotiable obligations.
Extraordinary shareholders' meetings may be called at any time to discuss matters beyond the competence of the ordinary meeting, including but not limited to amendments to the bylaws, matters related to the liquidation of the Company, limitation of the shareholders' preemptive rights to subscribe new shares, issuance of bonds and debentures, transformation of the corporate form, the merger into another company and spin-offs, early winding-up, change of the company's domicile to outside Argentina, total or partial repayment of capital for losses, a substantial change in the corporate purpose set forth in the bylaws.
Shareholders' meetings may be convened by the board of directors or by the syndics. A shareholder or group of shareholders holding at least 5.0% in the aggregate of Grupo Galicia's capital stock may request the board of directors or the syndics to convene a general shareholders' meeting to discuss the matters indicated by the shareholder.
Once a meeting has been convened with an agenda, the agenda limits the matters to be passed-on at such meeting and no other matters may be passed-on.
Additionally, the bylaws provide that any shareholder holding at least 5% in the aggregate of Grupo Galicia capital stock may present, in writing, to the board of directors, before February 28 of each year, proposals of items to be included in the agenda at the annual general ordinary shareholders' meeting. The board of directors is not bound to include such items in the agenda.
Class B shares represented by ADSs will be voted or caused to be voted by the Depositary in accordance with instructions of the holders of such ADSs.
Notice of each shareholders' meeting must be published in the Boletin Oficial (Official Gazette) of the Republic of Argentina in the city of Buenos Aires, and in a widely circulated newspaper in the country's territory, at least twenty days prior to the meeting but not more than forty-five days prior to the date on which the meeting is to be held. The board of directors will determine the appropriate publication of notices outside Argentina in accordance with the requirements of the jurisdictions and exchanges on which Grupo Galicia's shares are traded. In order to attend a meeting and to be listed on the meeting registry, shareholders must submit evidence of their book-entry share account held at Caja de Valores at least three business days prior to the scheduled meeting date without counting the meeting day.
The quorum for ordinary meetings consists of a majority of stock entitled to vote, and resolutions may be adopted by the affirmative vote of 50% plus one vote (an "absolute majority") of the votes present. If no quorum is present at the first meeting, a second meeting may be called at which the shareholders present, whatever their number, shall constitute a quorum. Resolutions are to be adopted by an absolute majority of the votes present. The second meeting may be convened to be held one hour later on the same day as the first meeting had been called for, provided that it is an ordinary shareholders' meeting, or within thirty days of the date for which the first ordinary meeting was called.
The quorum for extraordinary shareholders' meetings consists of 60% of stock entitled to vote, and resolutions may be adopted by an absolute majority of the votes present. If no quorum is present at the first meeting, a second meeting may be called at which the shareholders present, whatever their number, shall constitute quorum. Resolutions are to be adopted by an absolute majority of the votes present. The second meeting has to be convened to be held within thirty days of the date for which the first extraordinary meeting was called, and the notice must be published for three days, at least eight before the date of the second meeting. Some special matters require a favorable vote of the majority of all the stock holding voting rights, the class A shares being granted the right to only 1 vote each. The special matters are described in " -- Voting Rights" above.
DIVIDENDS
Dividends may be lawfully paid and declared only out of our retained earnings representing the profit realized on our operations and investments reflected in our annual financial statements according to Argentine GAAP as approved at our annual general shareholders' meeting. No profits may be distributed until prior losses are covered. Dividends paid on our class A shares and class B shares will equal one another on a per-share basis.
As required by the Argentine Commercial Companies Law, 5% of our net income is allocated to a legal reserve until the reserve equals 20% of our outstanding capital. The payment of cash dividends will not be affected by the legal reserve as long as such reserve is covered by our subsidiaries' retained earnings. Dividends may not be paid if the legal reserve has been impaired. The legal reserve is not available for distribution to shareholders.
Our board of directors submits our financial statements for the previous fiscal year, together with reports prepared by our supervisory committee, to our shareholders for approval at the general ordinary shareholders' meeting. The shareholders, upon approving the financial statements, determine the allocation of Grupo Galicia's net income.
Our board of directors is allowed by law and by our bylaws to decide to pay anticipated dividends on the basis of a balance sheet especially prepared for purposes of paying such dividends.
Under CNV regulations and our bylaws, cash dividends must be paid to shareholders within 30 days of the shareholders' meeting approving the dividend. Payment of dividends in shares requires authorization from the CNV, the Buenos Aires Stock Exchange and the Cordoba Stock Exchange, whose authorizations must be requested within 10 business days after the shareholders' meeting approving the dividend. Grupo Galicia must make distribution of the shares available to shareholders not later than three months after receiving authorization to do so from the CNV.
Shareholders may no longer claim the payment of dividends from Grupo Galicia once three years have elapsed from the date on which the relevant dividends were made available to such shareholders.
CAPITAL INCREASES AND REDUCTIONS
We may increase our capital upon resolution of the general ordinary shareholders' meeting. All capital increases must be reported to the CNV, published in the Boletin Oficial (Official Gazette) and registered with the Public Registry of Commerce. Capital reductions may be voluntary or mandatory. Voluntary reduction of capital must be approved by an extraordinary shareholders' meeting after the corresponding authorization by the Buenos Aires Stock Exchange, the Cordoba Stock Exchange and the CNV and may take place only after notice of such reduction has been published and creditors have been given an opportunity to obtain payment or guarantees for their
claims or attachment. Reduction of capital is mandatory when losses have exceeded reserves and more than 50% of the share capital of the company.
PREEMPTIVE RIGHTS
Under Argentine law, it is mandatory that a shareholder of ordinary shares of any given class have a preemptive right, proportional to the number of shares he or she owns, to subscribe for shares of capital stock of the same class or of any other class if the new subscription offer does not include all classes of shares. Shareholders may only decide to suspend or limit preemptive rights by supermajority at an extraordinary shareholders' meeting and only in exceptional cases. Shareholders may waive their preemptive rights only on a case-by-case basis.
In the event of an increase in Grupo Galicia's capital, holders of class A shares and class B shares have a preemptive right to subscribe for any issue of class B shares in an amount sufficient to maintain the proportion of capital then held by them. Holders of class A shares are entitled to subscribe for class B shares because no further class A shares carrying five votes each are allowed to be issued in the future. Under Argentine law, companies are prohibited from issuing stock with multiple voting rights after they have been authorized to make a public offering of securities. Our bylaws do not grant preemptive rights to preferred shares.
Preemptive rights are exercisable following the last publication of notice of shareholders' opportunity to exercise preemptive rights in the Official Gazette and an Argentine newspaper of wide circulation for a period of 30 days, provided that such period may be reduced to no less than 10 days if so approved by an extraordinary shareholders' meeting.
Shareholders who have exercised their preemptive rights and indicated their intention to exercise additional preemptive rights are entitled to additional preemptive rights ("accretion rights"), on a pro rata basis, with respect to any unsubscribed shares, in accordance with the terms of the Argentine Commercial Companies Law. Class B shares not subscribed for by shareholders through exercise of their preemptive or accretion rights may be offered to third parties.
Holders of ADSs may be restricted in their ability to exercise preemptive rights if a registration statement relating to such rights has not been filed or is not effective if an exemption from registration is not available.
APPRAISAL RIGHTS
Whenever the shareholders of Grupo Galicia approve:
- a merger or spin-off in which Grupo Galicia is not the surviving corporation, unless the acquirer's shares are authorized to be publicly offered or listed on any stock exchange,
- a transformation in Grupo Galicia's legal corporate form,
- a fundamental change in Grupo Galicia's corporate purpose,
- a change of Grupo Galicia's domicile to be outside Argentina,
- a voluntary termination of Grupo Galicia's public offering or listing authorization,
- a continuation of Grupo Galicia following a delisting or a mandatory cancellation of its public offering or listing authorization, or
- a total or partial recapitalization of the statutory capital of Grupo Galicia following a loss,
any shareholder that voted against such action or did not attend the relevant meeting may exercise the right to have its shares canceled in exchange for the book value of its shares, determined on the basis of Grupo Galicia's latest balance sheet prepared in accordance with Argentine laws and regulations, provided that such shareholder exercises its appraisal to rights within the periods set forth below.
There is, however, doubt as to whether holders of ADSs, will be able to exercise appraisal rights with respect to class B shares represented by ADSs.
Appraisal rights must be exercised within 5 days following the adjournment of the meeting at which the resolution was adopted, in the event that the dissenting shareholder voted against such resolutions, or within 15 days following such adjournment if the dissenting shareholder did not attend such meeting and can prove that he was a shareholder on the date of such meeting. In the case of merger or spin-off involving an entity authorized to make a public offering of its shares, appraisal rights may not be exercised if the shares to be received as a result of such transaction are listed on any stock exchange. Appraisal rights are extinguished if the resolution giving rise to such rights is overturned at another shareholders' meeting held within 75 days of the meeting at which the resolution was adopted.
Payment on the appraisal rights must be made within one year of the date of the shareholders' meeting at which the resolution was adopted, except where the resolution was to delist Grupo Galicia's capital stock, in which case the payment period is reduced to 60 days from the date of the related resolution.
PREFERRED STOCK
According to the Argentine Commercial Companies Law and our bylaws, an ordinary shareholders' meeting may approve the issuance of preferred stock. Such preferred stock may have a fixed dividend, cumulative or not cumulative, with or without additional participation in Grupo Galicia's profits, as decided by shareholders at a shareholders' meeting when drawing the conditions of the issuance. They may also have other preferences, like a preference in the liquidation of the Company.
The holders of preferred stock shall not be entitled to voting rights. Notwithstanding the foregoing, in the event that no dividends are paid to such holders for their preferred stock, and for as long as such dividends are not paid, the holders of preferred stock shall be entitled to voting rights. Holders of preferred stock are also entitled to vote on certain special matters, such as the transformation of the corporate form, the merger into another company and spin-offs (when Grupo Galicia is not the surviving entity and the surviving entity is not listed on any stock exchange), early winding-up, a change of Grupo Galicia's domicile to outside Argentina, total or partial repayment of capital for losses and a substantial change in the corporate purpose set forth in the bylaws or in the event the preferred stock is traded on stock exchanges and such trading is suspended or terminated.
CONFLICTS OF INTEREST
As a protection to minority shareholders, under the Argentine Commercial Companies Law, a shareholder is required to abstain from voting on any resolution in which its direct or indirect interests conflict with that of or are different than that of Grupo Galicia. In the event such shareholder votes on such resolution, and such resolution would not have been approved without such shareholder's vote, the resolution may be declared void by a court and such shareholder may be liable for damages to the company as well as to any third party, including other shareholders.
REDEMPTION OR REPURCHASE
According to Decree No. 677/01, a sociedad anonima may acquire the
shares issued by it, provided that the public offering and listing thereof has
been authorized, subject to the following terms and conditions and those set
forth by the CNV. The CNV has not yet issued its regulations. The above
mentioned conditions are: (a) the shares to be acquired shall be fully paid up;
(b) there shall be a resolution signed by the board of directors to such effect;
(c) the acquisition shall be made out of net profits or free or voluntary
reserves; and (d) the total amount of shares acquired by the company, including
previously acquired shares, shall not exceed 10% of the capital stock or such
lower percentage determined by the CNV. The shares acquired by the company in
excess of such limit shall be disposed of within the term of 90 days after the
date of the acquisition originating such excess.
The shares acquired by the company shall be disposed of by the company within the maximum term of three years counted as from the date of acquisition thereof. Upon disposing of the shares, the company shall make a
preemptive offer thereof. Such an offer will not be obligatory if the shares are used in connection with a compensation plan or program for the company's employees or if the shares are distributed among all shareholders pro rata their shareholdings. If shareholders do no exercise, in whole or in part, their preemptive rights, the sale shall be made at a stock exchange.
LIQUIDATION
Upon liquidation of Grupo Galicia, one or more liquidators may be appointed to wind up the company. If no such appointment is made, our board of directors will act as liquidator. All outstanding common shares will be entitled to participate equally in any distribution upon liquidation.
In the event of a liquidation, in Argentina as well as in any other country, the assets of Grupo Galicia shall first be applied to satisfy its debts and liabilities.
OTHER PROVISIONS
The bylaws are governed by Argentine law and the ownership of any kind of Grupo Galicia's shares represents acceptance of its bylaws and submission to the exclusive jurisdiction of the ordinary commercial courts of Buenos Aires for any claim or dispute related to the company, its shareholders, directors and members of the supervisory committee.
EXCHANGE CONTROLS
From 1989 to November 30, 2001, there were no foreign exchange controls preventing or restricting the conversion of pesos into U.S. dollars and transfers abroad. However, on December 3, 2001, the government introduced controls over the foreign exchange market and on transfers of foreign currency abroad. In late 2002 and during 2003, controls over the foreign exchange market and capital movements were lifted to a large extent. As of the date of this annual report, certain controls still remain.
In particular, access to the foreign market is limited to a monthly U.S. dollar amount for all Argentine residents and transfers of foreign exchange abroad by financial institutions, such as the Bank, with outstanding indebtedness with the Argentine Central Bank for liquidity support, is subject to the prior authorization of the Argentine Central Bank. Such prior authorization is not required for payments in connection with the foreign debt of the Bank's head office in Argentina and its Cayman Branch, which was restructured on May 18, 2004, given that such restructuring was approved by the Argentine Central Bank.
See Item 4. "Information on the Company -- Main Regulatory Changes in 2002 and 2003 -- Foreign Exchange Market."
TAXATION
The following is a summary of certain U.S. Federal income and Argentine tax matters that may be relevant with respect to the acquisition, ownership and disposition of ADSs or class B shares. Currently, there is no tax treaty between the United States and Argentina.
ARGENTINE TAXES
Taxation of Dividends
In general, dividend payments on the ADSs or ordinary shares, whether in cash, property, or stock, are not subject to Argentine withholding tax or other taxes.
There is an exception under which a 35% tax ("equalization tax") will be imposed on certain dividends approved by the registrant's shareholders.
The equalization tax will be applied only to the extent that distributions of dividends exceed the taxable income of the company increased by nontaxable dividends received by the distributing company in prior years and reduced by Argentine income tax paid by the distributing company.
In this situation the equalization tax will be imposed as a withholding tax on the shareholder receiving the dividend. Dividends distributions made in property (other than cash) will be subject to the same tax rules as cash dividends. Stock dividends are not subject to Argentine taxation.
Taxation of Capital Gains
Pursuant to Decree No. 2,284/91 (the "Deregulation Decree"), capital gains derived by nonresident individuals or foreign companies from the sale, exchange or other disposition of ADSs or class B shares are not currently subject to income tax.
Only applicable to shares not listed in a stock exchange and beginning January 1, 2001, capital gains from the sale, exchange or other dispositions of shares not listed in a stock exchange, will be subject to income tax when derived by individuals domiciled in Argentina.
In addition, in the case of legal entities or permanent organizations incorporated or domiciled abroad that, pursuant to its bylaws, charters, documents or the applicable regulatory framework, that have as its principal activity investing outside of the jurisdiction of their incorporation or domicile, or are generally restricted from doing business in its country of incorporation, it will be assumed, without any proof to the contrary being admitted, that the seller is an individual domiciled in Argentina. Such legal entities will be subject to income tax imposed as a withholding tax on the seller receiving the payment (for payments made beginning April 30, 2001) at the rate of 17,50% (that is, 35% on 50% of the amount of the payment), but the foreign party may choose instead to pay a tax of 35% on the net gain realized on the sale. In such situation, the Deregulation Decree will not be applicable.
On July 3, 2003, the Government Chief Counsel (Procurador del Tesoro) issued an opinion that the provisions of the income tax law that taxed capital gains arising from unlisted shares obtained by resident individuals or "offshore companies," as defined by the Argentine Income Tax Law, are no longer in force because they have been implicitly abrogated. The validity of this opinion is difficult to assess. Opinions of the Government Chief Counsel are binding upon all government attorneys, including attorneys of the Argentine Tax Administration.
Transfer Taxes
No Argentine transfer taxes are applicable on the sale or transfer of ADSs or class B shares.
Tax on Minimum Notional Income
The tax reform in force since 1999 reinstituted a tax on assets on Argentine companies that will be in effect during 10 years, unless that term is extended by future legislation.
This tax is similar to the asset tax that was previously in effect in Argentina from 1990 to 1995. It applies at a general rate of 1% on a broadly defined asset base encompassing most of the taxpayer's gross assets at the end of any fiscal year ending after December 31, 1998.
Specifically the Law establishes that banks, other financial institutions and insurance companies will consider a basis of imposition of 20% of the value of taxable assets.
A company's asset tax liability for a tax year will be reduced by its income tax payments, and asset tax payments for a tax year can be carried forward to be applied against the company's income tax liability in any of the following ten tax years.
Personal Assets Tax
Individuals domiciled in Argentina will be subject to a 0.5% annual tax in respect of assets located in Argentina and abroad for assets not exceeding Ps. 200,000. For assets exceeding Ps. 200,000 the tax rate is 0.75%. The tax will be levied on the difference between the total value of the taxpayer's assets at each December 31st and a nontaxable threshold of Ps. 102,300. Individuals domiciled abroad will pay the tax only in respect of the assets they hold in Argentina. In the case of individuals domiciled abroad, the tax will be paid by the individuals or legal entities domiciled in Argentina which as of December 31st of each year hold the joint ownership, possession, use, enjoyment, deposit, safekeeping, custody, administration or tenure of the assets located in Argentina subject to the tax belonging to the individuals domiciled abroad. In such case the annual nontaxable amount of Ps. 102,300 will not be deductible. When the direct ownership of negotiable bonds, government securities and certain other investments, except shares issued by companies ruled by Law No. 19,550 (Commercial Companies Law), corresponds to companies domiciled abroad in countries that do not enforce registration systems for private securities (with the exception of insurance companies, open-end investment funds, pension funds or banks and financial entities with head offices in countries that have adopted the international banking supervision standards laid down by the Basel Committee on Banking Supervision) or that pursuant to its bylaws, charter, documents or the applicable regulatory framework, have as its principal activity investing out of the jurisdiction of its organization or domicile, or are generally restricted from doing business in its country of incorporation, it will be assumed, without any proof to the contrary being admitted, that those assets belong ultimately to individuals and therefore the system for paying the tax for such individuals domiciled abroad is applicable to them. The annual nontaxable amount of Ps. 102,300 will not be deductible and the tax will not have to be paid when it is less than Ps. 256. The regulations for applying these requirements have not yet been issued. In the case of government securities or bonds the personal assets tax will be applied at the rate of 1.5%.
There is an exception pursuant to a recent tax reform that was published in the Official Gazette as Law No. 25,585, which went into effect on December 31, 2002. This tax reform introduced a mechanism to collect the personal assets tax on shares issued by companies ruled by Law No. 19,550, which ownership belongs to individuals domiciled in Argentina or abroad and companies or legal entities domiciled abroad. In the case of companies or legal entities domiciled abroad, it will be assumed, without any proof to the contrary being admitted, that those shares belong ultimately to individuals domiciled abroad.
The tax will be assessed and paid by those companies ruled by Law No. 19,550 at the rate of 0.5% on the value of the shares or equity interest. The valuation of the shares, whether listed or not, must be made according to their proportional equity value. In such case the annual nontaxable amount of Ps. 102.300 will not be deductible. These companies may eventually seek reimbursement from the direct owner of its shares in respect of any amounts paid to the Argentine tax authorities as personal assets tax. Grupo Galicia has sought reimbursement for the amount paid corresponding to December 31, 2002. The board of directors submitted the decision on how to proceed with respect to fiscal year 2003 to the annual shareholders' meeting held April 22, 2004. At that meeting, our shareholders voted to suspend all claims on our shareholders for amounts unpaid for fiscal year 2002 and to have us absorb the amounts due for fiscal year 2003 onward when not withheld from dividends.
Other Taxes
There are no Argentine federal inheritance, succession or gift taxes applicable to the ownership, transfer or disposition of ADSs or class B shares. There are no Argentine stamp, issue, registration or similar taxes or duties payable by holders of ADSs or class B shares.
Deposit and Withdrawal of Class B Shares in Exchange for ADSs
No Argentine tax is imposed on the deposit or withdrawal of class B shares in exchange for ADSs.
UNITED STATES TAXES
The following summary of U.S. Federal income taxes describes certain U.S. Federal income tax consequences of the ownership of class B shares or ADSs (which are evidenced by American Depositary Shares,
"ADSs"), as such securities are set forth in the documents or the forms thereof, relating to such securities as in existence on the date hereof, but it does not purport to address all of the tax considerations that may be relevant to a decision to purchase, own or dispose of class B shares or ADSs. This summary assumes that the class B shares or ADSs will be held as capital assets and does not address tax consequences to all categories of investors, some of which (such as dealers or traders in securities or currencies, real estate investment trusts, regulated investment companies, grantor trusts, tax-exempt entities, banks, insurance companies, persons that received Class B Shares or ADSs as compensation for the performance of services, persons owning (or are deemed to own for U.S. tax purposes) at least 10% or more (by voting power or value) of the shares of Grupo Galicia, investors whose functional currency is not the U.S. dollar and persons that will hold the ordinary shares or ADSs as part of a position in a "straddle" or as part of a "hedging" or "conversion" transaction for U.S. tax purposes) may be subject to special tax rules. Moreover, this summary does not address the U.S. federal estate and gift or alternative minimum tax consequences of the acquisition, ownership and disposition of Class B Shares or ADSs.
This summary (i) is based on the tax laws of the United States as in
effect on the date of this annual report and on United States Treasury
Regulations in effect as of the date of this annual report, as well as judicial
and administrative interpretations thereof available on or before such date and
(ii) is based in part on representations of the Depository and the assumption
that each obligation in the Deposit Agreement and any related agreement will be
performed in accordance with its terms. All of the foregoing are subject to
change, which change could apply retroactively and could affect the tax
consequences described below.
The U.S. Treasury Department has expressed concern that depositaries for American depositary receipts, or other intermediaries between the holders of shares of an issuer and the issuer, may be taking actions that are inconsistent with the claiming of U.S. foreign tax credits by U.S. holders of such receipts or shares. Accordingly, the U.S. foreign tax credit analysis described below could be affected by future actions that may be taken by the U.S. Treasury Department.
For purposes of this summary, a "U.S. Holder" is a beneficial owner of class B shares or ADSs who, for U.S. Federal income tax purposes, is (i) a citizen or resident of the United States, (ii) a corporation or partnership organized in or under the laws of the United States or any state thereof (including the District of Columbia), (iii) an estate the income of which is subject to U.S. Federal income taxation regardless of its source, or (iv) a trust if such trust validly elects to be treated as a United States person for United States federal income tax purposes or if (a) a United States court can exercise primary supervision over its administration and (b) one or more United States persons have the authority to control all of the substantial decisions of such trust. A "Non-U.S. Holder" is a beneficial owner of class B shares or ADSs other than a U.S. Holder.
If a partnership (or any other entity treated as a partnership for U.S. federal income tax purposes) holds class B shares or ADSs, the tax treatment of the partnership and a partner in such partnership will generally depend on the status of the partner and the activities of the partnership. Such a partner or partnership should consult its tax advisor as to its tax consequences.
Each prospective purchaser should consult its own tax advisor with respect to the U.S. Federal, state, local and foreign tax consequences of acquiring, owning or disposing of class B shares or ADSs.
Ownership of ADSs in General
In general, for U.S. Federal income tax purposes holders of ADSs will be treated as the owners of the ADSs evidenced thereby and of the class B shares represented by such ADSs.
Taxation of Cash Dividends and Distribution of Stock
Subject to the discussion below under "Passive Foreign Investment Company Considerations," for U.S. Federal income tax purposes, distributions by the Company of cash or property (other than certain distributions, if any, of Class B Shares or ADSs distributed pro rata to all shareholders of the Company, including holders of ADSs) made with respect to the Class B Shares, represented by ADSs, before reduction for any Argentine taxes withheld therefrom, will constitute dividends to the extent of the registrant's current and accumulated earnings and profits,
and will be included in the gross income of a U.S. Holder as dividend income. Subject to the discussion below under "Passive Foreign Investment Company Considerations," noncorporate U.S. Holders generally may be taxed on distributions on ADSs (or shares that are readily tradable on an established securities market in the United States at the time of such distribution) at the lower rates applicable to long-term capital gains for taxable years beginning on or before December 31, 2008 (i.e., gains from the sale of capital assets held for more than one year). Noncorporate U.S. Holders that do not meet a minimum holding period requirement during which they are not protected from the risk of loss with respect to such ADSs (or shares), that elect to treat the dividend income as "investment income" pursuant to Section 163(d)(4)(B) of the Code or that receive dividends with respect to which they are obligated to make related payments, will not be eligible for the reduced rates of taxation. Such dividends will not be eligible for the dividends received deduction generally allowed to corporations under the Internal Revenue Code of 1986, as amended (the "Code"). Subject to the discussion below under "Passive Foreign Investment Company Considerations," if distributions with respect to the Class B Shares exceed the registrant's current and accumulated earnings and profits, the excess would be treated first as a tax-free return of capital to the extent of such U.S. Holder's adjusted tax basis in the ADSs, which represent Class B Shares. Any amount in excess of the amount of the dividend and the return of capital would be treated as capital gain. The Company does not maintain calculations of its earnings and profits under U.S. federal income tax principles. Dividends paid in pesos will be included in the gross income of a U.S. Holder in an amount equal to the U.S. dollar value of the pesos on the date of receipt, which, in the case of ADSs, is the date they are received by the depositary. The amount of any distribution of property other than cash will be the fair market value of such property on the date of distribution. Any gains or losses resulting from the conversion of pesos between the time of the receipt of dividends paid in pesos and the time the pesos are converted into U.S. dollars will be treated as ordinary income or loss, as the case may be, of a U.S. Holder. Dividends received by a U.S. Holder with respect to the Class B Shares or ADSs will be treated as foreign source income, which may be relevant in calculating such holder's foreign tax credit limitation. Subject to certain conditions and limitations, Argentine tax withheld on dividends may be deducted from taxable income or credited against a U.S. Holder's U.S. Federal income tax liability. The limitation on foreign taxes eligible for credit is calculated separately with respect to specific classes of income. For this purpose, dividends generally will constitute foreign source "passive income" (or in the case of certain holders, "financial services income") for U.S. foreign tax credit purposes.
Subject to the discussion below under "Backup Withholding and Information Reporting Requirements," a Non-U.S. Holder generally will not be subject to U.S. Federal income or withholding tax on dividends received on Class B Shares or ADSs, unless such income is effectively connected with the conduct by the Non-U.S. Holder of a trade or business in the United States.
Taxation of Capital Gains
Subject to the discussion below under "Passive Foreign Investment Company Considerations," U.S. Holders that hold ADSs as capital assets will recognize capital gain or loss for U.S. Federal income tax purposes upon a sale or exchange of such ADSs in an amount equal to the difference between such U.S. Holder's adjusted tax basis in the Class B Shares or ADSs and the amount realized on their disposition. In the case of a noncorporate U.S. Holder, the maximum marginal U.S. Federal income tax rate applicable to such gain will be lower than the maximum marginal federal income tax rate for ordinary income (other than certain dividends) if the U.S. Holder's holding period for the Class B Shares or ADSs exceeds one year (i.e., long-term capital gains). Gain or loss, if any, recognized by a U.S. Holder generally will be treated as United States source income or loss for U.S. foreign tax credit purposes. Certain limitations exist on the deductibility of capital losses for U.S. Federal income tax purposes.
The initial tax basis of the Class B Shares to a U.S. Holder is the U.S. dollar value of the pesos denominated purchase price determined on the date of purchase. If the Class B Shares are treated as traded on an "established securities market," a cash basis U.S. Holder (or, if it elects, an accrual basis U.S. Holder) will determine the dollar value of the cost of such Class B Shares by translating the amount paid at the spot rate of exchange on the settlement date of the purchase.
With respect to the sale or exchange of Class B Shares, the amount realized generally will be the U.S. dollar value of the payment received determined on (i) the date of receipt of payment in the case of a cash basis U.S. Holder and (ii) the date of disposition in the case of an accrual basis U.S. Holder. If the Class B Shares are treated as traded on an "established securities market," a cash basis taxpayer (or, if it elects, an accrual basis taxpayer) will
determine the U.S. dollar value of the amount realized by translating the amount received at the spot rate of exchange on the settlement date of the sale.
Subject to the discussion below under "Backup Withholding Tax and Information Reporting Requirements," a Non-U.S. Holder generally will not be subject to U.S. Federal income or withholding tax on gain realized on the sale or exchange of Class B Shares or ADSs unless (i) such gain is effectively connected with the conduct by the Non-U.S. Holder of a trade or business in the United States or (ii) in the case of gain realized by an individual Non-U.S. Holder, the Non-U.S. Holder is present in the United States for 183 days or more in the taxable year of the sale or exchange and certain other conditions are met.
Passive Foreign Investment Company Considerations
A Non-United States corporation will be classified as a "passive foreign investment company," or a PFIC, for U.S. federal income tax purposes in any taxable year in which, after applying certain look-through rules, either (1) at least 75 percent of its gross income is "passive income" or (2) at least 50 percent of the average value of its gross assets is attributable to assets that produce "passive income" or is held for the production of passive income. Passive income for this purpose generally includes dividends, interest, royalties, rents and gains from commodities and securities transactions, other than certain income derived in the active conduct of a banking business.
Based on certain estimates of its gross income and gross assets and the nature of its business, the Company believes that it will not be classified as a PFIC for the taxable year ended December 31, 2003. The Company's status in future years will depend on its assets and activities in those years. The Company has no reason to believe that its assets or activities will change in a manner that would cause it to be classified as a PFIC, but there can be no assurance that the Company will not be considered a PFIC for any taxable year. If the Company were a PFIC, a U.S. Holder of Class B Shares or ADSs generally would be subject to imputed interest charges and other disadvantageous tax treatment (including the denial of the taxation of certain dividends at the lower rates applicable to long-term capital gains, as discussed above under "Taxation of Cash Dividends and Distribution of Stock") with respect to any gain from the sale or exchange of, and certain distributions with respect to, the Class B Shares or ADSs.
If the Company were a PFIC, a U.S. Holder of Class B Shares or ADSs could make a variety of elections that may alleviate certain of the tax consequences referred to above, and one of these elections may be made retroactively. However, it is expected that the conditions necessary for making certain of such elections will not apply in the case of the Class B Shares or ADSs. U.S. Holders should consult their own tax advisors regarding the tax consequences that would arise if the Company were treated as a PFIC.
Backup Withholding and Information Reporting
United States backup withholding tax and information reporting requirements generally apply to certain payments to certain noncorporate holders of stock.
Information reporting generally will apply to payments of dividends on, and to proceeds from the sale or redemption of, Class B Shares or ADSs made within the United States to a holder of Class B Shares or ADSs (other than an "exempt recipient," including a corporation, a payee that is not a United States person that provides an appropriate certification and certain other persons).
A payor will be required to withhold backup withholding tax from any payments of dividends on, or proceeds from the sale or redemption of, Class B Shares or ADSs within the United States to a holder (other than an exempt recipient such as a corporation or a payee that is not a United States person and that provides an appropriate certification) if such Holder fails to furnish its correct taxpayer identification number or otherwise fails to comply with, or establish an exemption from, such backup withholding tax requirements. The backup withholding tax rate is 28% through 2010. In the case of such payments made within the United States to a foreign simple trust, foreign grantor trust or a foreign partnership (other than payments to a foreign simple trust, a foreign grantor trust or a foreign partnership that qualifies as a "withholding foreign trust" or a "withholding foreign partnership" within the meaning of certain Treasury Regulations and payments to a foreign simple trust, a foreign grantor trust or a foreign partnership that are effectively connected with the conduct of a trade or business in the United States), the beneficiaries
of the foreign simple trust, the persons treated as the owners of the foreign grantor trust or the partners of the foreign partnership, as the case may be, will be required to provide the certification discussed above in order to establish an exemption from backup withholding tax and information reporting requirements. Moreover, a payor only may rely on a certification provided by a payee that is not a United States person only if such payor does not have actual knowledge or a reason to know that any information or certification stated in such certificate is incorrect.
THE ABOVE SUMMARIES ARE NOT INTENDED TO CONSTITUTE A COMPLETE ANALYSIS
OF ALL TAX CONSEQUENCES RELATING TO THE OWNERSHIP OF THE CLASS B SHARES OR ADSs.
MATERIAL CONTRACTS
In connection with the Bank's foreign debt restructuring, we entered into the registration rights agreement and corporate governance/financial reporting agreement (the "Grupo Galicia agreement") as described in Item 4. "Information on the Company -- Business -- Banco Galicia -- Galicia Capitalization and Liquidity Plan -- Restructuring of the Foreign Debt of the Bank's head office in Argentina and its Cayman Branch," and copies of which are filed as exhibits to this annual report.
Under the Grupo Galicia agreement, in addition to agreeing to provide financial and other information to the lenders under the Bank's loan agreements, we agreed that for so long as any amounts payable under the loan agreements remain outstanding, we will, by November 18, 2004, cause our audit committee of our board of directors to have at least three members, a majority of which shall be "independent directors" (as such term is defined in NASDAQ Stock Market Inc. Rule 4350(d)(2)(A)), and comply with certain provisions of the U.S. Sarbanes Oxley Act of 2002 relating to granting of personal loans to executives, implementing internal controls and a code of ethics and providing certifications from our chief executive officer and chief financial officer.
We also agreed that we will not pay fees to the members of our board of directors during any fiscal year, or enter into agreements or any other kind of transactions pursuant to which we will pay fees, salaries, retainers or any other kind of compensation to the members of our board of directors during any fiscal year, if the aggregate amount of fees, salaries, retainers or other compensation during such fiscal year would exceed US$1.5 million or make any payment to our management in excess of market compensation.
In addition, each year, we agree to inform the lenders under the loan agreements as to whether a change of control has occurred. If a change of control, as defined in the Grupo Galicia agreement, occurs, it may trigger an event of default under the Bank's loan agreements.
In connection with its foreign debt restructuring, the Bank entered
into various restructured loan agreement with its bank creditors, a form of
which is filed as an exhibit to this annual report, and into an indenture with
The Bank of New York, acting as trustee, pursuant to which the bond instruments
were issued. A copy of the indenture is filed as an exhibit to this annual
report. These new loan agreements and/or indenture include a number of
significant covenants that, among other things, restrict the Bank's ability to:
pay dividends on stock or purchase stock (see Item 8. "Financial Information --
Dividend Policy and Dividends -- Dividend Policy"); make certain types of
investments; use the proceeds of the sale of certain assets or the issuance of
debt or equity securities; engage in certain transactions with affiliates; and
engage in businesses activities unrelated to the Bank's current business. In
addition, certain of these agreements also require the Bank to maintain
specified financial ratios and to comply with certain reporting and
informational requirements.
DOCUMENTS ON DISPLAY
We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended. In accordance with these requirements, we file reports and other information with the United States Securities and Exchange Commission. These materials, including this annual report and its exhibits, may be inspected and printed or copied for a fee at the SEC'S Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549. You may obtain information about the operation of the Public Reference Room by calling the SEC at (202) 942-8090.
These material are also available on the SEC's website at http://www.sec.gov. Material submitted by us can also be inspected at the offices of The Nasdaq Stock Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006-1506.
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
GENERAL
Market risks faced by the Group are the risks arising from the fluctuations in interest rates and in foreign exchange rates. Market risk for Grupo Galicia arises mainly from the operations of Banco Galicia in its capacity as a financial intermediary. Grupo Galicia's subsidiaries and equity investees other than Banco Galicia are also subject to market risk. However, the amount of these risks are not significant and are not discussed below. Grupo Galicia's policy regarding these risks is applied at the level of its operating subsidiaries.
At Banco Galicia, the process of establishing the consolidated Bank risk tolerance and practices is carried out under the direction of the board of directors and the supervision of the risk management committee and the financial risk policy committee ("Comite de Posicion Financiera"). The board of directors delegates risk policy definition and supervision to these committees, the risk management division, the treasury division and the credit division, and specific risk supervision and management functions to senior officers of the treasury division (liquidity management and market risks), the credit division (credit risk) and the risk management division (operational risk). The above mentioned committees are the most senior corporate forums for supervising and monitoring risk management practices and compliance. See Item 6. "Directors, Senior Management and Employees -- Functions of the Board of Directors of Banco Galicia."
The risk management's division's mission is to assure that the Bank's board of directors and executive authorities are fully aware of all of the risks to which Banco Galicia is exposed. For this, it participates in the design of the necessary policies to achieve a proper global risk management, reviews on an ongoing basis the different risk exposures and monitors compliance across the Bank with the established risk standards.
The treasury division is responsible for managing liquidity and market risks. Until November 2001, it presented to the financial risk policy committee, on bimonthly basis, a report containing the information necessary to assess and control market risk. The crisis situation in late 2001 altered the frequency of such presentations. Currently these presentations are made on a weekly basis.
The review of such information provides the Bank with a view of the environment in which it operates and of its exposure to market risk. Based on this review the committee formulates recommendations and actions.
Before 2002, the interest rate, cash flow and currency mismatches in the Bank's balance sheets were the result of the Bank's risk management decisions, limited to a certain extent by the unavailability of hedging instruments in the local market and to a limited availability of such instruments in the international market.
The economic policy implemented by the Argentine government in 2002 meant the compulsory modification by the government of most of the contracts outstanding between economic agents, which, among others, radically modified the currency of denomination of bank assets and liabilities, their maturity and their interest rates from those outstanding as of December 31, 2001. In addition the adjustment by the CER or the CVS indices of principal of pesified assets or liabilities was introduced. As a result of these measures, currently the Bank's balance sheet shows interest rate, cash flow and currency mismatches between assets and liabilities, that have been created by the economic policy of the Argentine government in 2002. These mismatches are currently, to a large extent, beyond the Bank's control. See Item 5. "Operating and Financial Review and Prospects -- Item 5A. Operating Results -- Currency Composition of our Balance Sheet."
Liquidity management is discussed in Item 5. "Operating and Financial Review and Prospects -- Item 5B. Liquidity and Capital Resources -- Liquidity."
Credit risk management is discussed in Item 4. "Information on the Company -- Selected Statistical Information -- Credit Review Process" and the other sections under Item 4. "Information on the Company -- Selected Statistical Information" describing the Bank's loan portfolio and loan loss experience.
INTEREST RATE RISK
Interest-rate risk (including the risk derived from the adjustment of principal by CER of certain of the Bank's assets and liabilities) is the effect on the Bank's net interest income of the fluctuations of market interest rates and of the CER variations (linked to the variation of the consumer price index). Sensitivity to interest rate and CER fluctuations arises in the Bank's normal course of business as the repricing characteristics of its interest-earning assets do not necessarily match those of its interest-bearing deposits and other borrowings. The repricing structure of assets and liabilities is matched when an equal amount of assets and liabilities reprice for any given period. Any excess of assets or liabilities over these matched items results in a gap or mismatch.
Banco Galicia aims to minimize the impact of interest rate changes (including CER fluctuations) on its net interest income.
The Bank monitors the repricing structure of interest-earning assets and interest-bearing liabilities, using such methods as gap analysis, rate-shock analysis and net-present-value analysis together with gap-duration analysis. Interest-rate gap reports are used basically for measuring risk in the short term.
As of December 31, 2003, the Bank's interest-earning assets and interest-bearing liabilities, taking into account the different segments of interest-earning assets and interest-bearing liabilities, and the total mismatch in each one of the segments, was as follows:
AS OF DECEMBER 31, 2003 ---------------------------------------------------------------------------------- PAST DUE / LESS THAN OVER 10 CALLABLE ONE YEAR 1 - 5 YEARS 5 - 10 YEARS YEARS TOTAL -------- -------- ----------- ------------ ----- ----- (in millions of pesos) ASSETS PESOS - ADJUSTABLE BY CER.............. - Ps. 350.5 Ps. 1,524.8 Ps. 5,496.8 Ps. 2,318.8 Ps. 9,690.9 Government Securities ............... - 78.6 5.6 - - 84.2 Financial Trusts (Galtrust I, Secured Loans, Special Funds Almafuerte and Mendoza Banks)...................... - - 389.9 255.0 312.7 957.6 Loans................................. - 271.9 1,129.3 5,068.2 2,006.1 8,475.5 Other................................. - - - 173.6 - 173.6 PESOS - ADJUSTABLE BY CVS............... - 35.5 164.9 184.4 55.5 440.3 Loans................................ - 35.5 105.2 89.3 47.4 277.4 Financial Trusts (Galtrust II and V - Mortgage Trust).................... - - 59.7 95.1 8.1 162.9 PESOS.................................. - 1,603.1 44.6 6.5 5.2 1,659.4 Government Securities................ - 294.4 - - - 294.4 Corporate Debt Securities............ - 22.3 - - 5.0 27.3 Financial Trust...................... - 3.6 - - - 3.6 Loans................................ - 1,218.8 31.5 4.0 0.2 1,254.5 Other Credits........................ - 64.0 13.1 2.5 - 79.6 DOLLARS................................ Ps. 827.9 528.2 3,123.8 3,069.8 0.3 7,550.0 Overnight ........................... - 15.2 - - - 15.2 Government Securities................ 819.1 (1) 2.4 2.9 2.9 - 827.3 Compensatory and Hedge Bonds to be Received.......................... - - 3,032.5 3,030.7 - 6,063.2 Corporate Debt Securities............ 8.8 6.9 - - - 15.7 Loans................................ - 499.7 85.9 33.6 - 619.2 Other Credits........................ - 4.0 2.5 2.6 0.3 9.4 --------- ----------- ----------- ----------- ----------- ----------- TOTAL ASSETS........................... Ps. 827.9 Ps. 2,517.3 Ps. 4,858.1 Ps. 8,757.5 Ps. 2,379.8 Ps.19,340.6 |
LIABILITIES PESOS - ADJUSTABLE BY CER................ - Ps. 647.6 Ps. 3,141.6 Ps. 5,050.8 Ps. 6.6 Ps. 8,846.6 Time Deposits.......................... - 326.4 164.8 72.0 - 563.2 Other Financing........................ - 63.1 93.3 3.5 - 159.9 Lines of Credit from Domestic Banks.... - - - 26.9 6.6 33.5 Argentine Central Bank................. - 258.1 2,883.5 4,948.4 - 8,090.0 PESOS.................................... - 2,637.4 0.5 - - 2,637.9 Demand Deposits ....................... - 876.4 - - - 876.4 Time Deposits.......................... - 1,515.4 0.5 - - 1,515.9 Restructured Deposits (CEDROs)......... - - - - - - Negotiable Obligations................. - - - - - - Lines of Credit from Domestic Banks ... - 245.6 - - - 245.6 Argentine Central Bank................. - - - - - - Other Liabilities...................... - - - - - - DOLLARS.................................. Ps. 3,997.4 Ps. 916.6 Ps. 1,672.7 Ps. 876.0 - Ps. 7,462.7 Demand Deposits ....................... - 278.6 - - - 278.6 Time Deposits.......................... - 372.4 549.5 412.1 - 1,334.0 Lines of Credit from Domestic Banks.... 38.8(3) 4.4 6.1 - - 49.3 Foreign Debt being Restructured - Negotiable Obligations............... 1,141.0(2) 123.6 786.4 461.4 - 2,512.4 Foreign Debt being Restructured - Lines of Credit ...................... 2,817.6(2) 130.2 322.5 - - 3,270.3 Other Liabilities ..................... - 7.4 8.2 2.5 - 18.1 ----------- ----------- ----------- ----------- ----------- ------------ TOTAL LIABILITIES........................ Ps. 3,997.4 Ps. 4,201.6 Ps. 4,814.8 Ps. 5,926.8 Ps. 6.6 Ps. 18,947.2 Asset / Liability Gap.................... Ps.(3,169.5) Ps.(1,684.3) Ps. 43.3 Ps. 2,830.7 Ps. 2,373.2 Ps. 393.4 Cumulative Gap........................... (3,169.5) (4,853.8) (4,810.5) (1,979.8) 393.4 Ratio of Cumulative Gap to Cumulative Liabilities ........................... (79.29)% (59.20)% (36.97)% (10.45)% 2.08% Ratio of Cumulative Gap to Total Liabilities............................ (16.73)% (25.62)% (25.39)% (10.45)% 2.08% Asset / Liability Gap CER................ - (297.1) (1,616.8) 446.0 2,312.2 844.3 Asset / Liability Gap CVS................ - 35.5 164.9 184.4 55.5 440.3 Asset / Liability Gap Interest Rate Pesos - (1,034.3) 44.1 6.5 5.2 (978.5) Asset / Liability Gap Interest Rate...... Dollars ............................... (3,169.5) (388.4) 1,451.1 2,193.8 0.3 87.3 Other Peso-denominated Assets............ - 2,599.2 - - - 2,599.2 Other Dollar-denominated Assets.......... - 768.0 - - - 768.0 Other Peso-denominated Liabilities....... - 1,843.8 - - - 1,843.8 Other Dollar-denominated Liabilities..... - 564.0 564.0 Total Assets............................. 827.9 5,884.5 4,858.1 8,757.5 2,379.8 22,707.8 Total Liabilities........................ 3,997.4 6,609.4 4,814.8 5,926.8 6.6 21,355.0 GAP...................................... Ps.(3,169.5) Ps. (724.9) Ps. 43.3 Ps. 2,830.7 Ps. 2,373.2 Ps. 1,352.8 =========== =========== =========== =========== =========== ============ |
Principal only. Does not include interest.
(1) Represents the Bank's holdings of Argentine Republic External Notes, currently included in the sovereign's debt restructuring.
(2) Aggregate principal amount of foreign debt of the Bank's head office in Argentina and of its Cayman Branch subject to restructuring as of December 31, 2003, which restructuring was completed as of May 18,2004.
(3) Includes the Bank's debt with the BICE and negotiable obligations of the regional credit card companies.
In the table above, assets and liabilities in payment default as of December 31, 2003, are shown under a separate column under the heading "past due/callable," including the Bank's foreign debt, whose restructuring was completed on May 18, 2004.
In the table above, the item "Argentine Central Bank" comprises: (i) the financial assistance for liquidity support granted to the Bank by the Argentine Central Bank, for a principal amount (including the CER adjustment) of Ps. Ps 5,647.1 million. This liability accrues at the CER plus a 3.5% fixed annual interest rate, and its principal will be amortized in 92 monthly installments beginning March 2004; and (ii) the borrowings to be incurred with the Argentine Central Bank to purchase the hedge bond, for a principal amount including the CER adjustment of Ps. 2.,442.9 million, which accrues interest at an annual 2% fixed rate, and the principal of which will be amortized in 8 annual installments between 2005 and 2012.
To complement gap analysis, but with a longer term perspective, the Bank uses the following methods to obtain different measures of the impact of a change in interest rates and in the CER adjustment on the Bank:
(i) net present-value / gap duration analysis: first the net present value method is used to obtain the economic value of the Bank's assets and liabilities, by: a) valuing assets and liabilities with a market quotation, when available, at their market value; and b) calculating the net present value of financial assets and liabilities by using market interest rates, when available, to discount the cash flows of financial assets and liabilities with similar credit risk, collateral and maturity. When not available, interest rates and the CER adjustment estimated by the Bank were used. This results from the situation of the financial markets in Argentina as of the date of preparation of this information for fiscal year 2003 and for fiscal year 2002 not having normalized sufficiently for market interest rates to be available for the different types of exposures in the Bank's balance sheet.
Second, the individual "duration" of each financial asset and liability is determined. Subsequently individual durations are weighted by the net present value of the corresponding asset or liability. The weighted net duration of the Bank's shareholders' equity (net portfolio) is obtained. This measurement allows the determination of the variation of the economic value of the Bank's net portfolio for a given variation (typically 50 or 100 basis points) in market interest rates. The lower the weighted net duration of shareholders' equity, the lower the exposure to changes in market interest rates.
(ii) Rate shock analysis: this method enables the Bank to measure the impact of given interest-rate and CER variations (typically 50 or 100 basis points) on the Bank's year-one net financial income. The method assumes that interest-rate movements from December 31, 2003, levels are immediate and of the same magnitude and direction, while the structure and volume of assets and liabilities remains unchanged.
The following discussion about Banco Galicia's management of interest-rate rate risk contains forward-looking statements that involve risk and uncertainties. Actual results could differ from those projected in the forward-looking statements.
The table below measures as of December 31, 2003, the net present values of the Bank's net portfolio for various interest-rate scenarios, as well as the absolute and percentage changes from the net present value of this portfolio corresponding to the December 31, 2003, interest rate levels. The table also shows the Bank's year-one net interest income generated for various interest-rate scenarios, as well as the absolute and percent changes from amounts generated by the December 31, 2003 interest rate levels. The same is presented as of December 31, 2002, only, given that information prior to 2002 has lost relevance given the radical changes experienced by the Argentine regulatory, macroeconomic and financial system's environments after December 31, 2001.
For December 31, 2003 and 2002 the breakdown of the Bank's net portfolio into trading and nontrading portfolios is not presented, as: (i) the Bank had an immaterial trading portfolio in 2002, as a result of the Bank's participation in the public-sector debt swaps of government securities for secured loans and of the overall Argentine financial markets situation at the end of that year; and (ii) its trading portfolio as of December 31, 2003 was low and substantially made of short-term securities (Lebac).
The tables below show that the weighted net duration of the Bank's shareholders' equity as of December 31, 2003, was approximately 30.0 as compared to approximately 320.0 as of December 31, 2002. This indicates that, as of December 31, 2003, a 100-basis-point increase in interest rates would result in 30.0% decline in the net present value of the Bank's shareholders' equity, while a decrease of 100 basis points would have the opposite effect.
AS OF DECEMBER 31, 2003 ---------------------------------------------------------------------------------------- NET PORTFOLIO FAIR VALUE NET INTEREST INCOME (1) ---------------------------------------------------------------------------------------------------------------------------------- ABSOLUTE ABSOLUTE CHANGE IN INTEREST RATES IN BASIS POINTS (RATE SHOCK) AMOUNT VARIATION % CHANGE AMOUNT VARIATION % CHANGE ------------------- ------ --------- -------- ------ --------- -------- (in millions of pesos, except percentages) 200................................ Ps. 441.4 Ps.(570.4) (56.37)% Ps. 129.5 Ps. 4.1 3.27% 150................................ 571.5 (440.3) (43.52) 128.5 3.1 2.47 100................................ 709.5 (302.3) (29.88) 127.5 2.1 1.67 50................................. 856.1 (155.7) (15.39) 126.4 1.0 0.80 Static............................. 1,011.8 - - 125.4 - - (50)............................... 1,170.8 159.0 15.71 124.5 (0.9) (0.72) (100).............................. 1,340.0 328.2 32.44 123.6 (1.8) (1.44) (150).............................. 1,503.7 491.9 48.62 116.8 (8.6) (6.86) (200).............................. 1,662.1 650.3 64.27 110.3 (15.1) (12.04) ========== ========= ====== ========= ======= ====== |
(1) Net interest income of the first year.
AS OF DECEMBER 31, 2002 ---------------------------------------------------------------------------------------- NET PORTFOLIO FAIR VALUE NET INTEREST INCOME (1) ---------------------------------------------------------------------------------------------------------------------------------- ABSOLUTE ABSOLUTE CHANGE IN INTEREST RATES IN BASIS POINTS (RATE SHOCK) AMOUNT VARIATION % CHANGE AMOUNT VARIATION % CHANGE ------------------- ------ --------- -------- ------ --------- -------- (in millions of February 28, 2003 constant pesos, except percentages) 200................................ Ps.(531.3) Ps.(629.2) (642.70)% Ps. 200.8 Ps.(69.6) (25.74)% 150................................ (398.1) (496.0) (506.64) 218.3 (52.1) (19.27) 100................................ (232.0) (329.9) (336.98) 235.7 (34.7) (12.83) 50................................. (66.6) (164.5) (168.03) 253.2 (17.2) (6.36) Static............................. 97.9 - - 270.4 - - (50)............................... 250.0 152.1 155.36 288.8 18.4 6.80 (100).............................. 401.1 303.2 309.70 307.2 36.8 13.61 (150).............................. 553.8 455.9 465.68 324.3 53.9 19.93 (200).............................. 877.1 779.2 795.91 338.0 67.6 25.00 ========= ========= ======= ========= ======== ====== |
(1) Net interest income of the first year.
As of December 31, 2003, the weighted net duration of the Bank's shareholder's equity was approximately 30.0, showing a significant decrease from December 31, 2002. The decrease is mainly attributable to an increase in the duration of liabilities reflecting the restructuring of: (i) the Bank's debt for liquidity support owed to the Argentine Central Bank; and (ii) the foreign debt of the Bank's head office and that of the Cayman Branch completed in May 18, 2004. In the previous fiscal year, both debts were considered callable.
As of December 31, 2002, the weighted net duration of the Bank's shareholder's equity shows a significant increase as compared to the 6.0% duration as of December 31, 2001. This increase is mainly attributable to the low duration assigned to the Bank's liabilities as of December 31, 2002. The low duration of the Bank's liabilities as of December 31, 2002, reflects the following assumptions: (i) the financial assistance received from the Argentine Central Bank for liquidity support was considered a 30-day revolving facility, in accordance with the Argentine Central Bank rules regarding financial assistance received by banks for liquidity support and given that the measures from the government to restructure the assistance received by banks during the 2001 and 2002 crisis into long term debt were issued after the close of fiscal year 2002; and (ii) the aggregate of the Bank's debt subject to renegotiation was treated as callable. It should be considered also that this high duration applies, unlike previous fiscal years, to a low shareholders' equity net present value, mainly attributable to the Bank's exposure to the Argentine public sector.
FOREIGN EXCHANGE RATE RISK
Exchange-rate sensitivity is the relationship between the fluctuations of exchange rates and the Bank's net financial income resulting from the revaluation of the Bank's assets and liabilities denominated in foreign currency. The impact of variations in the exchange rate on the Bank's net financial income depends on whether the Bank has a net asset foreign currency position (the amount by which foreign currency denominated assets exceed foreign currency denominated liabilities) or a short foreign currency position (the amount by which foreign currency denominated liabilities exceed foreign currency denominated assets). In the first case an increase/decrease in the exchange rate derives in a gain/loss, respectively. In the second case, an increase/decrease derives in a loss/gain, respectively.
Until December 31, 2001, Banco Galicia aimed at minimizing the impact of foreign exchange rate fluctuations on its financial results by closely matching assets and liabilities not denominated in pesos, while keeping a net asset position in foreign currency (Banco Galicia's position in currencies other than dollars was always insignificant, therefore in the paragraphs below foreign currency positions largely represent U.S. dollar positions).
As of December 31, 2003 and 2002, the Bank's position in foreign currency was to a large extent the result of the measures taken by the Argentine government during 2002, mainly the compulsory asymmetric pesification of certain assets and liabilities which changed the currency denomination of Bank's balance sheets components and the compensation for the effects of the former, through dollar-denominated bonds (BODEN 2012), in the case of the Bank. As of December 31, 2003, Banco Galicia had a net asset foreign currency position of Ps. 291.6 million (US$99.4 million), and as of December 31, 2002 it had a net asset foreign currency position of Ps. 378.5 million (US$111.6 million). Its net asset foreign currency position exposes the Bank to losses if the peso appreciates (a decrease in the exchange rate of the peso vis-a-vis the U.S. dollar). The Bank does not have the ability to significantly modify its foreign currency position, due to the characteristics of the Argentine financial markets, the lack of hedge instruments in the local market and the limited access to the international capital markets.
The following tables contain information on Banco Galicia's sensitivity to exchange-rate risk that constitute forward-looking statements that involve risk and uncertainties. Actual results could differ from those projected in the forward-looking statements.
The tables below show the effects of changes in the exchange rate of the peso vis-a-vis the U.S. dollar on the value of the Bank's foreign currency net asset position as of December 31, 2003 and 2002. For December 31, 2003 and 2002, the breakdown of the Bank's foreign currency net asset position into trading and nontrading was not presented as the Bank had an immaterial foreign currency trading portfolio as a result of its participation in the public-sector debt swap performed in November 2001 and of the situation of the Argentine financial and securities markets during 2002 and 2003.
VALUE OF FOREIGN CURRENCY NET POSITION AS OF DECEMBER 31, 2003 ---------------------------------------------------------------------------------------------------------------------------- PERCENTAGE CHANGE IN THE VALUE OF THE PESO RELATIVE TO THE DOLLAR (1) AMOUNT ABSOLUTE VARIATION % CHANGE --------------------------------------------------------------------- ------ ------------------ -------- (in millions of February 28, 2003 constant pesos, except percentages) 40%.......................................... Ps. 408.2 Ps. 116.6 40.0% 30%.......................................... 379.1 87.5 30.0 20%.......................................... 349.9 58.3 20.0 10%.......................................... 320.8 29.2 10.0 Static....................................... 291.6 - - (10)%........................................ 262.4 (29.2) (10.0) (20)%........................................ 233.3 (58.3) (20.0) (30)%........................................ 204.1 (87.5) (30.0) (40)%........................................ 175.0 (116.6) (40.0) ========= ========= ===== |
(1) Devaluation / (Revaluation).
\
VALUE OF FOREIGN CURRENCY NET POSITION AS OF DECEMBER 31, 2002 ---------------------------------------------------------------------------------------------------------------------------- PERCENTAGE CHANGE IN THE VALUE OF THE PESO RELATIVE TO THE DOLLAR (1) AMOUNT ABSOLUTE VARIATION % CHANGE --------------------------------------------------------------------- ------ ------------------ -------- (in millions of February 28, 2003 constant pesos, except percentages) 40%.......................................... Ps. 529.9 Ps. 151.4 40.0% 30%.......................................... 492.1 113.6 30.0 20%.......................................... 454.2 75.7 20.0 10%.......................................... 416.4 37.9 10.0 Static....................................... 378.5 - - (10)%........................................ 340.7 (37.8) (10.0) (20)%........................................ 302.8 (75.7) (20.0) (30)%........................................ 265.0 (113.5) (30.0) (40)%........................................ 227.1 (151.4) (40.0) ========= ========= ===== |
(1) Devaluation / (Revaluation).
The decrease in the Bank's net asset foreign currency position as of December 31, 2003 from that as of December 31, 2002, when expressed in pesos, was mainly attributable to the appreciation of the peso vis-a-vis the U.S. dollar during 2003, reflected by a decrease in the exchange rate from Ps. 3.36 per U.S. dollar as of December 31, 2002, to Ps. 2.93 as of December 31, 2003. When expressed in U.S. dollars the net asset position was substantially the same, given that the decrease in the Bank's dollar-denominated assets resultant from the recognition of a lower compensation to be received for asymmetric pesification following observations by the Argentine Central Bank to the determination of the compensation made by the Bank, for US$53.9 million in nominal value of BODEN 2012, was compensated by the payment of dollar-denominated liabilities mainly representing liabilities of Galicia Uruguay, which payments were contemplated by the restructuring schedule agreed with depositors in 2002 (and the exchange offer carried in 2003) and made by using pesos.
As of December 31, 2002 the Bank had a net asset position in foreign currency of US$111.6 million. The December 31, 2001 position, reflected a situation prior to the devaluation of the peso (January 2002). The December 31, 2002 position was mainly attributable to the recording of the compensation for the effects of asymmetric pesification of certain assets and liabilities through, in the case of the Bank, dollar-denominated bonds (BODEN 2012), given that asymmetric pesification, had left the Bank with an involuntary short foreign currency position. In accordance with the compensation rules applicable, the total amount of compensation in the Bank's books (compensatory and hedge bonds) as of December 31, 2002, was Ps. 7,792.0 million, reflecting US$2,254.0 million of face value of BODEN 2012. As of that date, this amount was subject to review by the Argentine Central Bank.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
PART II
ITEM 13. DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES
As of the date of this annual report, payment defaults remain on the following foreign debt of the Bank's head office in Argentina as a result of certain holders not participating in the foreign debt restructuring of the Bank which was completed on May 18, 2004:
- 9% Notes due 2003 issued under the Indenture dated November 8, 1993, among the Bank, The Bank of New York, as trustee, co-registrar, principal paying agent and registrar. As of June 30, 2004, the total principal amount in default is US$20.9 million and the total accrued and unpaid interest is US$4.8 million.
- Floating Rate Notes issued under the a global medium term note program and a purchase agreement, dated June 7, 2001, among the Bank, Santander Central Hispano Investment Securities Inc, New York, as arranger and syndication agent, Banco Santander Central Hispano S.A., acting through its New York branch, as administrative and PRI Agent, the initial purchasers and The Bank of New York, New York, as principal paying agent. As of the date of this annual report, the total principal amount in default is US$0.9 million and the total accrued and unpaid interest as of June 30, 2004, is US$0.091 million.
The Bank's head office in Argentina is currently in the process of restructuring a US$10.0 million loan under the loan agreement dated December 12, 2001, between the Bank and Banco de Inversion y Comercio Exterior S.A., a domestic bank. As of the date of this annual report, the total principal amount in payment default is US$10.0 million and the total accrued and unpaid interest as of June 30, 2004 is US$1.4 million.
In addition, an aggregate of Ps. 9.5 million in total principal amount of negotiable obligations issued by the regional credit card companies in which the Bank's holds controlling interests is in payment default.
ITEM 14. MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS
Not applicable.
ITEM 15. CONTROLS AND PROCEDURES
In April 2003, we formed a working group consisting of members of senior management of various business areas and key corporate functions of Grupo Galicia and its main subsidiaries, to evaluate our internal controls and to propose and implement improvements to the extent any weaknesses were identified. In conducting its review and developing an action plan, the working group utilized the methodology proposed by the Committee of Sponsoring Organizations of the Treadway Commission, a private-sector organization dedicated to improving the quality of financial reporting through business ethics, effective internal controls and corporate governance.
As part of this evaluation, we and each of our principal subsidiaries focused on the following areas: corporate governance, business ethics, production and gathering of information, audit committees, auditing, risk administration, fraud prevention, management, business planning, information technology, internal control, law and regulation and U.S. GAAP requirements.
During 2003, we took the following actions to improve our internal controls in response to the working group's recommendations:
- We formed committees for information integrity at the holding company and at the Bank as well as at the other main operating subsidiaries levels and developed responsibilities and guidelines for each committee of each company.
- We established the audit committee at the holding company level and developed its functions and the related guidelines.
- We documented the procedures for identifying risks and implemented a risk-balanced scorecard at the Bank.
- We updated the job descriptions and functions of key personnel at the holding company, the Bank and the insurance companies. (We are in the process of updating the job descriptions and functions of key personnel at the regional credit card companies).
- We began the process of modifying the Bank's existing code of ethics for the holding company and its principal subsidiaries in order to comply with the requirements of section 406 of the Sarbanes-Oxley Act of 2002.
- We reviewed and improved the procedures contemplated by the Bank's business contingency plan.
- We defined the procedures for documenting the management meetings at the holding company and its main operating subsidiaries comprising Grupo Galicia.
We conducted an evaluation of the effectiveness of the design and operation of our disclosure and controls and procedures as of December 31, 2003 under the supervision and participation of our senior management, including our chief executive officer and chief financial officer pursuant to Rules 13a-15 and 15d-15 under the Securities Exchange Act of 1934. Based on this evaluation, our chief executive officer and chief financial officer have concluded that, as of December 31, 2003, our disclosure controls and procedures are effective in ensuring that all material information we are required to disclose in the reports we file under the Securities Exchange Act is gathered and communicated to our management, including our chief executive officer and chief financial officer, in a timely fashion, and that information required to be disclosed in this annual report or our other reports to be filed under the Securities Exchange Act is timely recorded, processed, summarized and reported.
Since December 31, 2003, there have been no significant changes in our internal controls (including any corrective actions with regard to significant deficiencies and material weaknesses) or in other factors that could significantly affect these controls.
ITEM 16. [RESERVED]
ITEM 16A. AUDIT COMMITTEE FINANCIAL EXPERT
Our board of directors has determined that Mr. Marcelo L. S. Tonini is an audit committee financial expert.
ITEM 16B. CODE OF ETHICS
We have adopted a corporate code of ethics for our holding company and our main subsidiaries in accordance with the requirements of section 406 of the Sarbanes-Oxley Act of 2002. We have posted a copy of our code of ethics on our website, http://www.gfgsa.com.
ITEM 16C. PRINCIPAL ACCOUNTANTS' FEES AND SERVICES
The following table sets forth the total remuneration billed to Grupo Galicia and its subsidiaries by its independent registered public accounting firm, PricewaterhouseCoopers, during the fiscal years ended December 31, 2002 and 2003. While Net Investment and Galicia Warrants used the services of a local accounting firm, amounts paid to this firm were minimal in the two reported fiscal years.
2002 2003 (In thousands of pesos) Audit fees............................. 2,319 2,336 Audit related fees..................... - 714 Tax fees............................... 18 1 All other fees......................... 372 646 ----- ----- TOTAL 2,709 3,697 ----- ----- |
AUDIT FEES
Audit fees are mainly the fees billed in relation with professional services for auditing our consolidated financial statements for the fiscal years 2002 and 2003 and for the review of our interim financial statements, for local purposes, and our annual report on Form 20-F.
AUDIT-RELATED FEES
Audit-related fees are fees billed for professional services related to the review of our consolidated financial statements, other than the services included under "audit fees" in each of the years 2002 and 2003. Audit-related fees are mainly fees associated with Banco Galicia's debt restructuring.
TAX FEES
Tax fees are fees billed with respect to tax compliance, advice and planning. Prior to the fiscal year ended December 31, 2003, we conducted our tax compliance work in-house.
ALL OTHER FEES
All other fees include fees paid for professional services other than the services reported above under "audit fees," "audit related fees" and "tax fees" in each of the fiscal periods above.
AUDIT COMMITTEE PREAPPROVAL
Commencing with the fiscal year ending December 31, 2004, our audit committee will be required to preapprove all audit and nonaudit services to be provided by our independent registered public accounting firm.
PART III
ITEM 17. FINANCIAL STATEMENTS
Not applicable.
ITEM 18. FINANCIAL STATEMENTS
Report of the Independent Registered Public Accounting Firm as of and for the fiscal years ended December 31, 2003, 2002 and 2001
Consolidated Balance Sheets as of December 31, 2003 and 2002
Consolidated Statements of Income for the years ended December 31, 2003, 2002 and 2001
Consolidated Statements of Cash Flows for the years ended December 31, 2003, 2002 and 2001
Consolidated Statements of Changes in Shareholders' Equity for the years ended December 31, 2003, 2002 and 2001
Notes to the Consolidated Financial Statements
You can find our audited consolidated financial statements on pages F-1 to F-109 of this annual report.
ITEM 19. EXHIBITS
EXHIBIT DESCRIPTION ------- ----------- 1.1 English translation of estatutos sociales (bylaws) 2.1 Indenture, dated as of May 18, 2004, among the Bank, The Bank of New York and Banco Rio de la Plata S.A. 4.1 Form of restructured loan facility (as evidenced by the note purchase agreement, dated as of April 27, 2004, among the Bank, Barclays Bank PLC, the holders party thereto and Deutsche Bank Trust Company Americas) 8.1 For a list of our subsidiaries as of the end of the fiscal year covered by this annual report, please see Item 4. "Information on the Company -- Organizational Structure." 12.1 Certification of the principal executive officer required under Rule 13a-14(a) or Rule 15d-14(a), pursuant to Section 302 of the Sarbanes Oxley Act of 2002 12.2. Certification of the principal financial officer required under Rule 13a-14(a) or Rule 15d-14(a), pursuant to Section 302 of the Sarbanes Oxley Act of 2002 13.1 Certification of the principal executive officer required pursuant to 18 U.S.C. Section 1350, as adopted pursuant to 906 of the Sarbanes Oxley Act of 2002 13.2 Certification of the principal executive officer required pursuant to 18 U.S.C. Section 1350, as adopted pursuant to 906 of the Sarbanes Oxley Act of 2002 99.1 Registration Rights Agreement dated as of May 18, 2004, executed and delivered by Grupo Galicia for the benefit of certain holders of preferred shares |
99.2 Agreement, dated as of April 27, 2004, among Grupo Galicia, the International Finance Corporation, the Inter-American Investment Corporation, Commodity Credit Corporation and Deutsche Bank Trust Company Americas |
SIGNATURE
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.
GRUPO FINANCIERO GALICIA S.A.
By: /s/ Antonio Garces ------------------------- Name: Antonio Garces Title: Chairman of the Board, Chief Executive Officer Date: July 13, 2004 |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
PAGE ---- Report of the Independent Registered Public Accounting Firm as of and for the fiscal years ended December 31, 2003, 2002, and 2001............................................................................................ F-2 Consolidated Balance Sheets as of December 31, 2003 and 2002 ................................................... F-4 Consolidated Statements of Income for the years ended December 31, 2003, 2002 and 2001............................................................................................................ F-7 Consolidated Statements of Cash Flows for the years ended December 31, 2003, 2002 and 2001...................... F-9 Consolidated Statements of Changes in Shareholders' Equity for the years ended December 31, 2003, 2002 and 2001............................................................................................. F-11 Notes to the Consolidated Financial Statements.................................................................. F-12 |
REPORT OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Chairman and Directors of
Grupo Financiero Galicia S.A.
We have audited the consolidated balance sheets of Grupo Financiero Galicia S.A. and subsidiaries at December 31, 2003 and 2002 and the related consolidated statements of income, changes in shareholders' equity and cash flows for each of the three years ended December 31, 2003, 2002 and 2001, as well as their accompanying notes 1 to 40. These consolidated financial statements and notes are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States) and the auditing standards generally accepted in Argentina and performed the auditing procedures required by the Banco Central de la Republica Argentina (the "Argentine Central Bank"). Those standards require that we plan and perform an audit to obtain reasonable assurance as to whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
As mentioned in Note 2 and 38, the accompanying consolidated financial statements have been prepared in accordance with accounting rules prescribed by the Argentine Central Bank, which differ in certain respects from, and is a comprehensive basis of accounting other than, Argentine generally accepted accounting principles applicable to enterprises in general.
Accounting rules prescribed by Argentine Central Bank vary in certain significant respects from accounting principles generally accepted in the United States of America. Information relating to the nature and effect of such differences is presented for the years ended December 31, 2003, 2002 and 2001, in Notes 27 and 39 to the consolidated financial statements.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Grupo Financiero Galicia S.A. and subsidiaries at December 31, 2003 and 2002, and the results of operations, changes in shareholders' equity and cash flows for the years ended December 31, 2003, 2002 and 2001, in conformity with accounting rules prescribed by the Argentine Central Bank.
In our audit report dated February 17, 2004, we stated we had a substantial doubt regarding the Company's ability to continue as a going concern due to the following uncertainties that affected the Company's most significant subsidiary (Banco de Galicia y Buenos Aires S.A., the "Bank"), comprising approximately 99.2% of the Company's total assets: (i) the restructuring of the financial system as a whole and the measures designed by the government to stay the economic downturn (ii) the success of the Bank's rehabilitation and restructuring plan to allow the Company to continue its operations and meet its solvency and liquidity ratios required by the Argentine Central Bank (iii) the recoverability of the Company's assets and the settlement of the Company's liabilities. As mentioned in note 1 to the accompanying consolidated financial statements, during 2003 an improvement took place in the Argentine economy, which put an end to the economic recession that had started in the second half of 1998. The financial system has gradually recovered its liquidity levels, recording an increase in deposits and in some types of borrowings, as well as the measures taken by the government had stabilized the financial system. In February, 2004 the Bank restructured its Argentine Central Bank debt and in May 2004, the Bank settled the restructuring of its foreign debt. Accordingly, our present opinion on the 2003 financial statements is different from that expressed in our previous report.
The quality of the Group's financial condition and results of operations depend to a significant extent on macroeconomic and political conditions prevailing from time to time in Argentina. The political and economic crisis of late 2001 and early 2002 in Argentina, and the Argentine government's actions to address such crisis, as mentioned in Note 1 and 39 have had a significant adverse effect on the Group's business activity. Currently, the Group is significantly dependent on the Argentine Government's ability to perform on its obligations to the Bank and to the entire financial system in Argentina, in connection with Federal secured loans, federal government securities and on its obligation to approve and deliver government securities under various laws and regulations.
PricewaterhouseCoopers
Buenos Aires, Argentina
February 17, 2004, except for note 1 and 37 as to which the date is June 17,
2004.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
AS OF DECEMBER 31, 2003 AND 2002
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ------------------------------------ 2003 2002 ---------------- ----------------- ASSETS A. Cash and due from banks Cash............................................................... Ps. 400,699 Ps. 250,219 Banks and correspondents........................................... 424,603 325,995 Other.............................................................. 848 624 ---------------- ----------------- Ps. 826,150 Ps. 576,838 B. Government and corporate securities Holdings of investment account securities.......................... 2,485,120 1,672,922 Holdings of trading securities..................................... 327,911 7,680 Unlisted government securities..................................... 86,227 146,678 Investments in listed corporate securities......................... 2,950 9,436 Allowances......................................................... (2,107) (6,874) ---------------- ----------------- Ps. 2,900,101 Ps. 1,829,842 C. Loans To the non-financial government sector............................ 7,800,551 7,690,022 To the financial sector........................................... 194,692 134,809 To the non-financial private sector and residents abroad 4,165,829 4,539,168 Overdrafts...................................................... 218,902 226,985 Notes........................................................... 1,387,766 1,544,264 Mortgage loans.................................................. 719,593 863,962 Pledge loans.................................................... 54,644 191,534 Consumer loans.................................................. 55,175 119,985 Credit card loans............................................... 818,837 584,944 Others.......................................................... 390,912 412,039 Accrued Interest, adjustment and quotation differences receivable.................................................... 523,080 608,477 Document interest............................................... (2,485) (10,832) Unallocated collections......................................... (595) (2,190) Allowances........................................................ (1,177,315) (1,681,836) ---------------- ----------------- Ps. 10,983,757 Ps. 10,682,163 D. Other receivables resulting from financial brokerage Argentine Central Bank............................................... 69,846 55,908 Amounts receivable for spot and forward sales to be settled.......... - 1,922 Securities receivable under spot and forward purchases to be settled............................................................ 138 675 Unlisted negotiable obligations...................................... 103,792 132,317 Compensation to be received from the national government............. 4,629,595 7,098,505 Other................................................................ 1,496,046 2,010,712 Allowances........................................................... (102,008) (44,337) ---------------- ----------------- Ps. 6,197,409 Ps. 9,255,702 |
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS - CONTINUED
AS OF DECEMBER 31, 2003 AND 2002
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ------------------------------------- 2003 2002 ---------------- ---------------- ASSETS (CONTINUED) E. Assets under financial leases Assets under financial leases................................... Ps. 29,418 Ps. 25,102 Allowances...................................................... (4,806) (2,460) ---------------- ---------------- Ps. 24,612 Ps. 22,642 F. Equity investments in other companies In financial institutions....................................... 3,009 3,486 Other ......................................................... 141,916 153,609 Allowances...................................................... (57,858) (52,841) ---------------- ---------------- Ps. 87,067 Ps. 104,254 G. Miscellaneous receivables Debtors for sale of assets...................................... 185 661 Other........................................................... 456,887 360,605 Accrued interest, adjustment on debtors for sale of assets receivable.................................................... 40 2 Other accrued interest receivable............................... 67,055 166 Allowances...................................................... (53,877) (29,375) ---------------- ---------------- Ps. 470,290 Ps. 332,059 H. Fixed assets.................................................... 517,532 570,475 I. Miscellaneous assets............................................ 158,098 184,762 J. Intangible assets Goodwill........................................................ 139,681 170,384 Organization and development expenses........................... 587,376 151,564 ---------------- ---------------- Ps. 727,057 Ps. 321,948 K. Unallocated items............................................... 2,592 23,833 ---------------- ---------------- TOTAL ASSETS........................................... Ps. 22,894,665 Ps. 23,904,518 ================ ================ |
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS - CONTINUED
AS OF DECEMBER 31, 2003 AND 2002
(Expressed in thousands of Argentine pesos)
DECEMBER 31, --------------------------------- 2003 2002 --------------- --------------- LIABILITIES AND SHAREHOLDERS' EQUITY L. Deposits Non-financial government sector..................................... Ps. 12,412 Ps. 7,826 Financial sector.................................................... 19,460 2,946 Non-financial private sector and residents abroad................... 5,552,119 5,198,588 Current accounts.................................................. 1,163,703 723,354 Saving accounts................................................... 818,888 563,868 Time deposits..................................................... 2,838,480 2,423,155 Investment accounts............................................... 184 - Other............................................................. 533,626 1,110,963 Accrued interest, adjustment and quotation differences payable ........................................................ 197,238 377,248 --------------- --------------- Ps. 5,583,991 Ps. 5,209,360 M. Other liabilities resulting from financial brokerage Argentine Central Bank 8,132,902 8,106,063 Liquidity assistance loans ................................... 5,579,978 5,449,880 Other......................................................... 2,552,924 2,656,183 Banks and international entities.................................... 2,735,480 3,184,709 Unsubordinated negotiable obligations............................... 2,392,909 3,464,539 Amounts payable for spot and forward purchases to be settled........ - 2,133 Securities to be delivered under spot and forward sales to be settled........................................................... 99,604 124,530 Loans from domestic financial institutions.......................... 131,763 201,271 Other ............................................................. 1,003,865 1,008,481 Accrued interest, adjustment and quotation differences payable........................................................... 602,898 279,242 --------------- --------------- Ps. 15,099,421 Ps. 16,370,968 N. Miscellaneous liabilities Dividends payable................................................... 46 46 Directors' and Syndics' fees payable................................ 1,347 2,213 Other............................................................... 232,246 254,485 Accrued adjustments and interest payable............................ 1,827 6 --------------- --------------- Ps. 235,466 Ps. 256,750 O. Provisions.......................................................... 414,875 334,559 P. Unallocated items................................................... 2,638 10,438 Q. Minority interests.................................................. 95,937 83,806 --------------- --------------- TOTAL LIABILITIES....................................... Ps. 21,432,328 Ps. 22,265,881 --------------- --------------- SHAREHOLDERS' EQUITY ............................................... 1,462,337 1,638,637 --------------- --------------- TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY.................... Ps. 22,894,665 Ps. 23,904,518 =============== =============== |
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ----------------------------------------------- 2003 2002 2001 ------------- ------------- -------------- A. Financial income Interest on cash and due from banks............................... Ps. 68 Ps. 2,369 Ps. 63,735 Interest on loans granted to the financial sector................. 101,107 86,822 96,351 Interest on overdrafts............................................ 38,801 136,840 256,464 Interest on notes................................................. 192,816 220,811 1,387,693 Interest on mortgage loans........................................ 94,832 125,421 443,423 Interest on pledge loans.......................................... 11,714 59,692 91,594 Interest on credit card loans..................................... 127,522 177,204 366,458 Interest on other loans........................................... 28,888 116,417 375,232 Interest income from other receivables resulting from financial brokerage............................................. 98,663 227,978 109,286 Net income from government and corporate securities............... 129,165 604,772 157,903 Net income from secured loans - Decree No. 1387/01................ 222,927 223,730 71,485 Consumer price index adjustment (CER/CVS)......................... 611,782 3,402,790 - Others............................................................ 23,657 412,825 167,173 ------------- ------------- -------------- Ps. 1,681,942 Ps. 5,797,671 Ps. 3,586,797 B. Financial expenses Interest on current accounts...................................... 3,039 17,565 52,810 Interest on savings accounts...................................... 3,045 8,144 37,298 Interest on time deposits......................................... 201,766 291,851 1,321,532 Interest on loans from the financial sector....................... 6,756 26,478 15,828 Interest expense from other liabilities resulting from financial brokerage............................................. 340,567 653,039 433,847 Other interest ................................................... 408,764 1,605,374 85,598 Net loss on options............................................... - 263 1,142 Consumer price index adjustment................................... 187,532 1,734,648 - Others............................................................ 351,435 223,043 178,075 ------------- ------------- -------------- Ps. 1,502,904 Ps. 4,560,405 Ps. 2,126,130 C. Gross brokerage margin............................................ 179,038 1,237,266 1,460,667 Loan loss provision .............................................. 286,428 1,648,576 1,008,514 D. Income from services In relation to lending transactions............................... 136,075 142,397 329,720 In relation to borrowing transactions............................. 116,165 149,885 262,849 Other commissions................................................. 9,347 14,412 102,185 Other............................................................. 170,170 209,331 462,042 ------------- ------------- -------------- Ps. 431,757 Ps. 516,025 Ps. 1,156,796 E. Expenses for services Commissions....................................................... 35,237 100,356 104,698 Other............................................................. 35,121 40,283 109,395 ------------- ------------- -------------- Ps. 70,358 Ps. 140,639 Ps. 214,093 |
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME - CONTINUED
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ----------------------------------------------- 2003 2002 2001 ------------ ------------- ------------- F. Monetary result of financial brokerage............................. Ps. (14,506) Ps.(1,437,745) Ps. - G. Administrative expenses Personnel expenses................................................. 243,501 496,025 699,622 Directors' and syndics' fees....................................... 1,917 3,236 35,427 Other fees......................................................... 21,294 28,026 25,245 Advertising and publicity.......................................... 20,020 15,369 54,531 Taxes.............................................................. 29,806 57,761 84,513 Other operating expenses........................................... 204,599 290,204 373,238 Other.............................................................. 42,227 56,893 97,413 ------------ ------------- ------------- Ps. 563,364 Ps. 947,514 Ps. 1,369,989 H. Monetary result of operating expenses.............................. Ps. 84 Ps. 21,001 Ps. - Net (loss)/income from financial brokerage......................... (323,777) (2,400,182) 24,867 I. Minority interests................................................. (9,586) 269,572 (22,159) J. Miscellaneous income Net loss on long-term investments.................................. - - 34,958 Penalty interest................................................... 3,183 6,252 6,989 Loans recovered and allowances reversed............................ 563,838 38,130 83,927 Other.............................................................. 97,805 245,900 603,572 Consumer price index adjustment (CER).............................. 54,381 1,125 - ------------ ------------- ------------- Ps. 719,207 Ps. 291,407 Ps. 729,446 K. Miscellaneous losses Net loss on long-term investments.................................. 22,570 134,988 - Penalty interest and Charges in favor of the Argentine Central Bank..................................................... 125 646 108 Loan loss provision from miscellaneous receivables and other provisions....................................................... 341,081 449,288 83,507 Other.............................................................. 233,193 187,887 224,947 Consumer price index adjustment.................................... 1,827 22 - ------------ ------------- ------------- Ps. 598,796 Ps. 772,831 Ps. 308,562 L. Monetary Result of other operations................................ Ps. (3,517) Ps. (163,090) Ps. - Net (loss)/income before tax....................................... (216,469) (2,775,124) 423,592 M. Income tax......................................................... 590 66,421 159,052 ------------ ------------- ------------- Net (loss)/income for the period before the Absorption............. Ps. (217,059) Ps.(2,841,545) Ps. 264,540 N. Absorption subject to the Approval of the Annual Shareholders Meeting (*)......................................... - 1,370,034 - ------------ ------------- ------------- Net (loss)/income for the year..................................... Ps. (217,059) Ps.(1,471,511) Ps. 264,540 ============ ============= ============= Net Income per common share before the absorption (basic and assuming full dilution).......................................... (0.199) (2.601) 0.242 Net Income per common share after the absorption (basic and assuming full dilution).......................................... (0.199) (1.347) 0.242 |
(*) Effect on the foreign currency position compensation.
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ------------------------------------------------- 2003 2002 2001 ------------- ------------- ------------- CASH PROVIDED BY OPERATING ACTIVITIES: Net income/ (loss).................................................... Ps. (217,059) Ps.(1,471,511) Ps. 264,540 Adjustments to reconcile net income to net cash from Operating activities: Depreciation of bank premises and equipment and Miscellaneous assets.................................................. 52,496 65,776 63,541 Amortization of intangible assets..................................... 163,390 168,622 110,927 (Decrease)/Increase in allowances for loan and other losses, net of reversals...................................................... 118,920 2,081,741 1,053,809 Equity loss of unconsolidated subsidiaries............................ 8,095 51,971 (11,588) Loss (gain) on sale of premises and equipment......................... 11,486 (59,948) 7,699 Accretion of discount on available-for-sale securities................ - - (181,710) (Gain) Loss on sales of available-for-sale securities................. - - (2,076) Decrease (Increase) in government securities-trading.................. (309,201) - (1,324,493) Decrease in other assets.............................................. 55,304 419,125 388,762 (Decrease)/Increase in other liabilities.............................. (21,700) (254,395) 2,202,544 Absorption subject to the Approval of the Annual Shareholders Meeting (*)........................................................... - (1,370,034) - Monetary loss......................................................... 17,939 1,579,834 - Compensation for the "asymmetric indexation" (CER/CVS) ............... (102,705) - - Adjustment of Compensatory Bond to be received........................ 90,243 - - Consumer price index adjustment (CER/CVS) ............................ (324,073) (1,630,582) - Unrealized foreign exchange gain / (loss)............................. 47,018 (516,888) - ------------- ------------- ------------- NET CASH (USED IN) PROVIDED BY OPERATING ACTIVITIES................... Ps. (409,847) Ps. (936,289) Ps. 2,571,955 CASH PROVIDED BY INVESTING ACTIVITIES: Increase in equity investments in other companies..................... (58,194) Decrease in loans, net................................................ 800,522 2,613,642 1,044,492 Cash dividends and capital repayments of available-for-sale securities............................................................ - - 51,088 Sales of investments in other companies............................... - - 59,912 Purchase of available-for-sale securities............................. - - (412,997) Proceeds on available-for-sale securities............................. - - 201,428 Increase in deposits at the Argentine Central Bank.................... (13,938) (18,989) 2,986,339 Additions to bank premises and equipment, miscellaneous, and intangible assets................................................. (124,469) (64,280) (424,735) Proceeds of sales of premises and equipment........................... 33,520 85,934 41,880 ------------- ------------- ------------- NET CASH PROVIDED BY INVESTING ACTIVITIES............................. Ps. 695,635 Ps. 2,616,307 Ps. 3,489,213 CASH PROVIDED BY FINANCING ACTIVITIES: Cash dividends........................................................ - - (81,808) Capital increase...................................................... - - 12,135 Increase/(Decrease) in deposits, net.................................. 782,718 (6,016,672) (6,088,418) Borrowings under credit facilities - long term........................ (537,074) (48,755) 3,970,480 Payments on credit facilities - long term............................. - - (2,963,251) (Decrease)/Increase in short-term borrowings, net.................... (252,600) 3,397,137 (1,059,557) (Decrease)/Increase in repurchase agreements......................... (24,601) 1,112,462 (77,193) ------------- ------------- ------------- NET CASH USED IN FINANCING ACTIVITIES................................ Ps. (31,557) Ps.(1,555,828) Ps.(6,287,612) |
(*) Effect on the foreign currency position compensation.
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ------------------------------------------------ 2003 2002 2001 ------------- -------------- -------------- INCREASE IN CASH AND CASH EQUIVALENTS NET.................. Ps. 254,231 Ps. 124,190 Ps. (226,444) CASH AND CASH EQUIVALENTS AT THE BEGINNING OF THE YEAR..... 576,838 1,139,854 1,366,298 MONETARY EFFECT ON CASH AND CASH EQUIVALENT................ (4,919) (687,206) - ------------- -------------- -------------- CASH AND CASH EQUIVALENTS AT THE END OF THE YEAR........... Ps. 826,150 Ps. 576,838 Ps. 1,139,854 SUPPLEMENTAL DISCLOSURES RELATIVE TO CASH FLOWS: Interest paid.............................................. Ps. 621,162 Ps. 823,377 Ps. 1,226,239 Income tax paid............................................ Ps. - Ps. - Ps. 63,238 Presumptive minimum income tax.(*)......................... Ps. 48,436 Ps. 14,773 Ps. - |
The transfer of loans to the "Galtrust II, III, IV and V" Financial Trusts during the year ended December 31, 2001 of Ps. 525,839, and the swap of government debt instruments into "Secured Loans" amounting to Ps. 8,265,467 did not require the movement of cash.
For the fiscal years ended December 31, 2003 and 2002, Ps. 4,966,460 and Ps. 7,098,505 for the compensation to be received from the national government and Ps. 3,502,523 and Ps. 2,489,864 respectively advance to be requested from the Argentine Central Bank for the subscription of the Hedge Bond, did not require the movement of cash.
The swap of provincial loans into secured bonds ("BOGAR"), which as of December 31, 2003 amounted to Ps. 3,473,661, did not required the movement of cash.
(*) The PMIT is calculated based on assets and can be credited against future income tax.
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS' EQUITY
FOR THE YEARS ENDED DECEMBER 31, 2003, 2002, AND 2001
(Expressed in thousands of Argentine pesos)
ADJUSTMENTS TO PROFIT RESERVES PAID IN SHAREHOLDERS' --------------- CAPITAL STOCK CAPITAL EQUITY LEGAL OTHER ------------- --------- ------------ --------- ----------- BALANCE AT DECEMBER 31, 2000 Ps.1,092,407 Ps.79,251 Ps.1,410,048 Ps. 1,961 Ps. 40,630 Distribution of retained earnings Approved by the shareholders' meeting on March 15, 2001: - Legal reserve - - - 14,305 - - Reserve provided by the Bylaws - - - - 198,311 - Cash Dividend - - - - - Net income for the year - - - - - ------------ --------- ------------ --------- ----------- BALANCE AT DECEMBER 31, 2001 Ps.1,092,407 Ps.79,251 Ps.1,410,048 Ps.16,266 Ps. 238,941 ============ ========= ============ ========= =========== Adjustment retained earnings - - - - - Distribution of retained earnings Approved by the shareholders' meeting on June 3, 2002: - Legal reserve - - - 13,227 - - Reserve provided by the Bylaws - - - - 253,398 Net loss for the year before the absorption - - - - - Absorption subject to the approval of the Annual Shareholders Meeting (*) - - - - - Transfer to net loss of the absorption,net - - - - - Net loss after the absorption - - - - - ------------ --------- ------------ --------- ----------- BALANCE AT DECEMBER 31, 2002 Ps.1,092,407 Ps.79,251 Ps.1,410,048 Ps.29,493 Ps. 492,339 ============ ========= ============ ========= =========== Adjustment retained earnings - - - - - Absorption approved by the shareholders' meeting on April 23, 2003 - - - - (492,339) Net loss for the year - - - - - ------------ --------- ------------ --------- ----------- BALANCE AT DECEMBER 31, 2003 Ps.1,092,407 Ps.79,251 Ps.1,410,048 Ps.29,493 Ps. - ============ ========= ============ ========= =========== UNREALIZED TOTAL VALUATION ACCUMULATED SHAREHOLDERS' DIFFERENCE(*) DEFICIT EQUITY ------------- ------------- ------------- BALANCE AT DECEMBER 31, 2000 Ps. - Ps. 286,104 Ps. 2,910,401 Distribution of retained earnings Approved by the shareholders' meeting on March 15, 2001: - Legal reserve - (14,305) - - Reserve provided by the Bylaws - (198,311) - - Cash Dividend - (71,370) (71,370) Net income for the year - 264,540 264,540 ------------- ------------- ------------- BALANCE AT DECEMBER 31, 2001 Ps. - Ps. 266,658 Ps. 3,103,571 ============= ============= ============= Adjustment retained earnings - 6,577 6,577 Distribution of retained earnings Approved by the shareholders' meeting on June 3, 2002: - Legal reserve - (13,227) - - Reserve provided by the Bylaws - (253,398) - Net loss for the year before the absorption - (2,841,545) (2,841,545) Absorption subject to the approval of the Annual Shareholders Meeting (*) 1,370,034 - 1,370,034 Transfer to net loss of the absorption,net (1,370,034) 1,370,034 - ------------- ------------- Net loss after the absorption - (1,471,511) (1,471,511) ------------- ------------- ------------- BALANCE AT DECEMBER 31, 2002 Ps. - Ps.(1,464,901) Ps. 1,638,637 ============= ============= ============= Adjustment retained earnings - 40,759 40,759 Absorption approved by the shareholders' meeting on April 23, 2003 - 492,339 - Net loss for the year - (217,059) (217,059) ------------- ------------- ------------- BALANCE AT DECEMBER 31, 2003 Ps. - Ps.(1,148,862) Ps. 1,462,337 ============= ============= ============= |
(*) Effect on the foreign currency position compensation
The accompanying notes are an integral part of these consolidated financial statements
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
1. BASIS OF PRESENTATION, ACQUISITIONS, ESTIMATES AND UNCERTAINTIES
Grupo Financiero Galicia S.A. ("Grupo Galicia", the "Company" or "the Group") is a corporation organized under the laws of Argentina that acts as a holding company for Banco de Galicia y Buenos Aires S.A. ("Banco Galicia" or the "Bank") and its subsidiaries. Grupo Galicia was formed by the controlling shareholders of the Bank on September 14, 1999 to consummate an exchange of shares with the shareholders of Banco Galicia and establish Grupo Galicia as the Bank's holding company. Grupo Galicia was formed with two classes of shares: Class A shares, which are entitled to 5 votes per share, and Class B shares, which are entitled to 1 vote per share. To effect the exchange, Grupo Galicia offered to exchange Grupo Galicia Class B shares for all outstanding Banco Galicia Class B shares on a 2.5-for-1 basis and to exchange Grupo Galicia ADSs for all outstanding Banco Galicia ADSs on a 1-for-1 basis. The controlling shareholders retained all the Class A shares. As a result of the exchange, which was consummated on July 26, 2000, the Company became holder of 93.23% of the Bank's capital stock, and the remaining 6.77% remained as a minority interest in the Bank. At December 31, 2003 and 2002 the Company's interest in Banco Galicia was 93.59% as a result of open market purchases.
Banco Galicia is a private-sector commercial bank organized under the laws of Argentina which provides general banking services, mainly through its Argentine branches, to corporate and retail customers. As of December 31, 2001, Banco Galicia provided banking services through its branches in the United States (New York City) and Grand Cayman Island. As a consequence of the prolonged economic crisis that Argentina was suffering, that worsened in December 2001, and of the economic policy measures adopted by the government in 2002, the New York branch was closed as of January 30, 2003. The Bank's services included, until December 31, 2001, accepting deposits and granting loans in Argentine pesos and U.S. dollars. The end of the Convertibility regime in early 2002, the devaluation of the currency and the measures adopted by the government in 2002 have restricted Argentine banks' operations in U.S. dollars.
As a result of the political and economic crisis that Argentina experienced in late 2001 and in 2002 and the material and adverse effect that such crisis has had on the Bank and other financial institutions in Argentina, the Bank's future business activities, as well as the levels of such business activities may differ substantially from pre-crisis periods.
Grupo Galicia consolidates the financial statements of Banco Galicia and its subsidiaries and all entities over which it has direct or indirect control. The consolidated financial statements also include Net Investment S.A. (and its subsidiaries), Sudamericana Holding S.A. (and its subsidiaries), Banco de Galicia Uruguay S.A. (and its subsidiaries), Galicia Capital Markets S.A. (and its subsidiaries), Galicia Factoring y Leasing S.A., Galicia Warrants S.A., Galicia Valores S.A. Sociedad de Bolsa, AgroGalicia S.A., and Tarjetas Regionales S.A.(and its subsidiaries). All significant intercompany transactions have been eliminated in consolidation.
The preparation of financial statements requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities, as of the financial statement dates, and the reported amounts of revenues and expenses during the reporting periods. Since management's judgment involves making estimates concerning the likelihood of future events, the actual results could differ from those estimates, which will have a positive or negative effect on future period results.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
ARGENTINE ECONOMIC SITUATION AND ITS IMPACT ON GRUPO GALICIA'S ECONOMIC AND FINANCIAL POSITION
During 2003 a significant improvement occured in the Argentine economy, which ended the economic recession that had started in the second half of 1998. The economic recession reached crisis proportions at the end of 2001 and for much of 2002. In 2003, interest rates fell and the foreign exchange market stabilized. The financial system has gradually recovered its liquidity levels, recording an increase in deposits and in some types of borrowings.
Furthermore the Argentine Central Bank has approved a number of measures to facilitate access to credit by the private sector. Minimum cash requirements have been reduced by approximately 50% compared to the previous period and the rules on ratings of borrowers, collateral and minimum capital requirements for covering credit risks have been reduced.
In spite of the change in the economic trends mentioned above, a situation characterized by high levels of unemployment and a major external public and private debt burden as well as country risk indicators far above normal average recorded by developing countries still persists. The national government's ability to meet its foreign debt obligations continues to be impaired. A favourable outcome of the restruturing negotiations of the public debt will be essential to reducing uncertainty of the fiscal outlook over the next few years.
To confront the crisis that started at the end of 2001, the government issued a number of measures to restrict the availability and circulation of cash and the transfer of foreign currency abroad.
On January 6, 2002, Law No. 25,561 (Public Emergency and Exchange System Reform Law) was encated. This Law involved profound changes to the prevailing economic model and the amendment of the Convertibility Law in force since March 1991. On February 3, 2002, the government announced new economic measures through Decree No. 214, complemented by Decree No. 410 dated March 1, 2002, Decree No. 260 dated February 8, 2002, and Decree No. 905/02 dated May 31, 2002, substantially modifying some of the measures implemented by the Public Emergency and Exchange System Reform Law.
Subsequently, decrees and regulations were issued which introduced other amendments, as described below:
FOREIGN EXCHANGE SYSTEM
On February 8, 2002 Decree No. 260 was issued, establishing beginning on February 11, 2002 a single free exchange market system, through which all transactions involving the exchange of foreign currency are to be traded at exchange rates to be freely agreed. Controls and restrictions have been imposed and subseqently gradually relaxed.
As summarized by Argentine Central Bank Communication No. 47888, foreign exchange regulations in force as of December 31, 2003 are as follows.
a) Foreign currency arising from exports of goods and services must be liquidated on the foreign exchange market within certain periods.
b) Foreign currency arising from indebtedness incurred abroad by the financial and non-financial private sectors in connection with bonds, financial loans and lines of credit of a financial nature,
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
must be brought in and liquidated on the domestic foreign exchange market and must have a minimum maturity of 180 calendar days.
c) New imports of goods may be fully prepaid, independently of the type of good. Debts arising from import transactions may also be prepaid, irrespective of contractual maturity.
d) No restriction exists on payments abroad for services provided by non-resident individuals, irrespective of the type of service.
e) Access to the foreign exchange market is permitted for interest payments to foreign creditors at maturity, up to 15 calendar days prior to the due date of each interest installment. Payments of Interest accrued but not yet due on debts of the non-financial private sector with foreign creditors subject to restructuring are also allowed.
f) Free access to the foreign exchange market is permitted for remittance of profits and dividends abroad, provided they correspond to audited financial statements for closed periods.
g) Free access to the foreign exchange market is permitted for payment of principal amounts due on financial debts, except for financial institutions having opted for restructuring, under the provisions of Decree No.739/03, financial assistance granted to them by the Argentine Central Bank for liquidity support, which must comply with the provisions of Argentine Central Bank Communique "A" 3940 and obtain Argentine Central Bank's approval to the restructuring terms of their foreign debt.
h) Non-residents are permitted free access to the foreign exchange market to acquire foreign currency for up to US$ 5,000 per month. Nonresidents may transfer foreign currency obtained in Argentina in connection with payments on principal of government securities in foreign currency.
i) Residents may access the exchange market to acquire foreign currency for up to US$ 500,000 per month.
j) No restrictions exist on futures and forward foreign exchange contracts provided that they are settled in local currency in Argentina. Also, no restrictions exist, subject to certain conditions, on certain arrangements and transfers abroad in connection with currency, interest rate and commodity price hedge transactions.
As established by Argentine Central Bank Communique "A" 3969, financial institutions' maximum holdings of foreign currency, mainly comprised of holdings of gold, cash and due from banks, other liquid investments in foreign currency held in Argentina and/or abroad and forward transactions, are limited to the equivalent of 10% of the adjusted shareholders' equity ( or computable regulatory capital) as of November 30, 2001.
LOANS AND OTHER FINANCINGS
Law No. 25,561 and Decree No. 214/02 and complementary rules and amendments, converted into pesos loans granted by the Argentine financial system in US dollars or any other foreign currency, governed by Argentine legislation, according to the following guidelines: (i) loans to the non-financial private sector, were converted at the Ps. 1 = US$ 1 parity or its equivalent in any other foreign currency; (ii) loans to the non-financial public sector were converted at the Ps. 1.40 = US$ 1 parity or its equivalent in any other foreign currency; and (iii) loans to the financial sector were converted at the Ps. 1.40 = US$ 1 parity or its equivalent in any other foreign currency.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Those measures contemplated the application of the Reference Stabilization Index (CER) to all loans converted into pesos and a maximum interest rate determined by the Argentine Central Bank became applicable to these loans, except for those to which the salary variation index (CVS) was applied from October 1, 2002 to March 31, 2004, namely:
- Mortgage loans secured by family residences originally agreed for up US$ 250,000.
- Personal loans originally agreed for up to US$12,000.
- Pledge consumer loans originally agreed for up to US$30,000.
The lower between the contractual interest rate in force as of February 3, 2002 and that determined by the Argentine Central Bank must be applied to these loans.
The CVS is an index that measures the daily rate of change derived from the monthly change in the Salary Index (IS), while the CER is an index that measures the daily rate of change derived from the monthly change in the Consumer Price Index (CPI) published by the National Institute of Statistic and Census (INDEC).
Since early 2002, as a result of the economic crisis, the Bank began to restructure its commercial loan portfolio. This restructuring process is in its final stage. Loans subject to restructuring have been considered in the Bank's calculation of its loan loss reserve.
DEPOSITS AND OBLIGATIONS WITH THE PUBLIC AND PRIVATE SECTORS
Law No. 25,561 and Decree No. 214/02 established that all deposits denominated in US dollars or any other currency placed with the financial system had to be converted into pesos at the Ps. 1.40 = US$ 1 parity. These rules also established that financial institutions's obligations were to be settled in pesos and that the CER and a minimum interest rate were to be applied to deposits coverted into pesos.
Restrictions imposed in early December 2001 on the availability of deposits (known as the "corralito") were maintained for balances in peso-denominated current accounts and savings accounts, with certain exceptions, and it was established that time deposits both peso- and US dollar-denominated and US dollar-denominated deposits in savings accounts and current accounts would be restructured and reimbursed in peso-denominated installments, with the amounts and due dates depending on the balances recorded. This restructuring was regulated by Resolution No.6/02 of the Ministry of Economy.
The National Executive Branch established the possibility for depositors to exercise the option to exchange their restructured deposits originally arranged in foreign currency for peso- and US dollar-denominated government securities, with the national government being responsible for crediting the bonds. Restructured deposits for which no option had been exercised were registered with Caja de Valores S.A. Those restructured deposits (known as CEDROS) are negotiable securities listed on Argentine stock exchanges and may be negotiated on self-regulated markets of Argentina.
Subsequently, holders of CEDROS were given the option to exchange them for new US dollar-denominated government securities or peso-denominated time deposit certificates issued by financial institutions, together with an option to convert them to original currency raised by the national government (this exchange was known as Canje II or "Exchange of deposits with the financial system II"). Furthermore, deposits restructured as of May 31, 2002 for up to Ps. 7,000 plus the CER adjustment and
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
accrued interest, or up to Ps. 10,000, plus the CER adjustment and interest accrued as from October 1, 2002, at the option of each financial institution, were reimbursed.
Lastly, holders of deposits originally placed in US dollars and subsequently converted into pesos were allowed to request that financial institutions reimburse them for their deposits or settle their certificates fully or partially, based on a schedule established according to the original amount of those deposits, plus a national government bond for the difference between the technical value of those placements and the market exchange rate at the date of the request of the reimbursement.
As of December 31, 2003, the principal amount of restructured deposits and CEDROS amounted to Ps. 301,813, while restructured deposits exchanged for national government bonds, which bonds had not yet been delivered to the Bank by the Ministry of Economy and, therefore, had not been delivered to customers, amounted to Ps. 79,089.
PUBLIC-SECTOR DEBT
Decree No. 1387/01 dated November 1, 2001 established the possibility of financial institutions to exchange public-sector debt instruments and loans under the Promissory Note/Bond program for new loans called Secured Loans. Conversion was made at face value and at a one-to-one rate, in the same currency as that of the exchanged public-sector obligation.
Decree No. 471, dated March 8, 2002, established that the obligations of the national, provincial and municipal public sectors outstanding as of February 3, 2002, and denominated in US dollars or any other currency, governed by Argentine law, were to be converted into pesos at an exchange rate of Ps. 1.40 per US dollar, or its equivalent in other foreign currency, with their principal adjusted by the CER.
The obligations of the national public sector converted into pesos as explained above accrue interest at rates ranging from 2% to 5%, depending on the characteristics of the original debt.
Decrees Nos. 644/02 and 79/03 established the steps to be taken by financial institutions to accept the new terms and conditions for receiving principal and/or interest payments on the secured loans. If financial institutions were to reject those terms and conditions, their situation will revert to the moment prior to the exchange.
On August 27, 2002, Decree No. 1579/02, instructed the Fiduciary Fund for Provincial Development to assume provincial debt instruments (government securities, bonds, treasury bills or loans) that were to be voluntarily converted into bonds ("BOGAR") or loans (promissory notes) secured by the federal tax collection, under the terms established by such Decree.
Through Resolutions Nos. 539/02 and 611/02 dated October 25 and November 12, 2002, respectively, the Ministry of Economy established the unified calculation method applicable to debts encompassed by the conversion regime laid down by Decree No. 1579/02, and set a time limit for financial institutions having made offers to convert provincial public debt within the framework of Decree No. 1387/01 and complementary rules to declare their intention to withdraw those offers.
On November 19, 2002, the ministry of Economy issued Resolution No. 624/02, establishing the provincial public debt eligible to be exchanged for secured bonds and loans issued by the Fiduciary Fund for Provincial Development.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
OTHER ASSETS AND LIABILITIES
As established by the aforementioned Decree No. 410 and complementary rules, futures and option contracts, including those registered in self-regulated markets and the accounts exclusively earmarked for the operations of those markets, were not converted into pesos at the Ps. 1 = US$ 1 exchange rate as established by Section 1 of Decree No. 214, except for those governed by Argentine law and agreed before January 5, 2002, where at least one of the parties must be a financial institution, and having been settled as of June 12, 2002. These were converted into pesos at Ps. 1.40 per US dollar.
Decree No. 410 also established that:
a) Fiscal credit certificates issued in US dollars or any other foreign currency within the framework of Decrees No. 979/01, 1005/01 and 1226/01 and in force at February 3, 2002, were converted into pesos at the exchange rate of Ps. 1.40 per US$ 1 or its equivalent in any other foreign currency.
b) The balances of financial institutions' accounts in US dollars or any other currencies at the close of operations at February 1, 2002, which may be computed to comply with liquidity reserve requirements, except for legal tender currency available and the amount equivalent to the balances of accounts earmarked exclusively for the operations on self-regulated futures and options markets, were converted into pesos at the exchange rate of Ps. 1.40 per US$ 1.
The same treatment has been accorded to the amounts contributed by financial institutions to the Bank Liquidity Fund established by Decree No. 32/01 and to the debts financial institutions have with that Fund.
REORGANIZATION AND BANKRUPTCY PROCEEDINGS
On January 30, 2002, Law No. 25,563 on reorganization and bankruptcy proceedings was enacted, which declared a production and credit emergency generated by the crisis that affected Argentina, and postponed all judicial and out-of court foreclosures, as well as all petitions for bankruptcy until December 10, 2003. Subsequently, Law No. 25,820 was promulgated, which extended the public emergency until December 31, 2004.
On February 4, 2003, Decree No. 204/2003 was issued, which created Legal Emergency Units responsible for mediating between debtors and creditors within a term of 90 days as from February 6, 2003.
This rule did not suspend or interrupt the legal time limits or foreclosures made extrajudicially or in execution of judgment, as regulated by current norms.
Under Law No. 25,737, enacted on May 8, 2003, auctions of property being the sole family residence of debtors were suspended for a term of 90 days, irrespective of the origin of the obligation.
Financial institutions have voluntarily extended the mortgage foreclosure suspension period that expired on September 2, 2003, in order to find a proper solution for all parties.
Law No. 25,798, regulated by Decree No. 1284/03, established a system for the refinancing of mortgage loans for up to Ps. 100,000, intended for the acquisition of sole family residences, past due as from January 1, 2001. However, adherence to this system is optional for creditors being
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
financial institutions governed by Law No. 21,526. The Bank decided not to adhere to this mortgage loan refinancing system.
SUSPENSION OF THE APPLICATION OF SECTION 94, SUBSECTION 5 AND SECTION 206 OF LAW NO. 19,550 (COMMERCIAL COMPANIES' LAW)
Decree No. 1269/02 suspended until December 10, 2003 the application of Section 94, subsection 5 of Law No. 19,550, which establishes that a company must be dissolved following loss of its corporate capital. Section 206, which establishes the mandatory capital reduction when losses exceed reserves and 50% of capital was also suspended until that date. In accordance with Decree No. 1293/03, these measures will remain in effect until December 10, 2004.
LEGAL ACTIONS REQUESTING PROTECTION OF CONSTITUTIONAL GUARANTEES
As a result of the measures adopted by the government in relation to the pesification and restructuring of deposits, since December 2001, a significant number of complaints have been filed against the National State and/or financial institutions by individuals and legal entities.
As of December 31, 2003, court orders received by the Bank mandating the reimbursement of deposits in their original currency or at the market exchange rate amounted to Ps. 17,497 and US$ 553,210. In compliance with court orders requiring the reimbursement of deposits under penalty of search and/or seizure and/or crimes involving illegal retention of deposits and/or disobedience, the Bank has paid the amounts of Ps. 803,746 and US$ 100,740 in connection with the disputed amounts.
In February of 2002, Decree No. 214/02 established the mandatory conversion of all deposits in US Dollars or other foreign currencies in the Argentine financial system into pesos at the exchange rate of Ps. 1.40 per US$ 1.00. Decree No. 214/02 also allowed for the entire withdrawal of pensions in cash and other exceptions.
Certain rules, such as Decree No. 320/02, Law No. 25,587 and Decree No. 1316/02 attempted to suspend the execution of precautionary measures and final judgments, except for certain cases where life, health or physical integrity of individuals were at risk, or if the claimant was an individual of 75 years of age or more. However, those rules have been declared unconstitutional by most courts and, therefore, the application of penalties of search and/or seizure to seek payment of deposits has not been completely suspended.
Furthermore, Decrees Nos. 494/02, (published in the Boletin Oficial (Official Gazette) on March 13, 2002), No. 905/02, No. 1836/02 and No. 739/03 established the possibility for depositors to receive US dollar national government bonds in exchange for restructured deposits, under the terms and in the manner prescribed therein.
The difference between the amount paid as a result of the above-mentioned court orders and the amount resulting from converting deposits at the Ps. 1.40 per US dollar exchange rate, adjusted by applying the CER and interest accrued at the payment date, amounted to Ps. 564,900 as of December 31, 2003. This difference had been recorded the previous year in "Other Receivables Resulting from Financial Brokerage" in the amount of Ps. 446,756 as of December 31, 2002. As of December 31, 2003 this difference has been recognized in Intangible Assets, net of related amortization, as called for by Argentine Central Bank Communique "A" 3916, in the amount of Ps. 487,020.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The Bank has repeatedly reserved its right to claim compensation for damages caused by the reimbursement of deposits in US dollars or their equivalent in pesos at the market exchange rate, decreed under precautionary measures or judgments issued by courts, and which have not been included by the government in the calculation of the compensation to financial institutions. The method of accounting for that compensation as a deferred loss, envisaged by the Argentine
Central Bank in the aforementioned Communique "A" 3916, does not affect the legitimacy of the rights. The Bank has reserved its rights for such purposes.
On December 30, 2003, the Bank formally requested from the National Executive Branch, with a copy to the Ministry of Economy and the Argentine Central Bank, compensation for damage suffered by the Bank as a result of the "asymmetric pesification" and especially that deriving from the negative effect on assets and liabilities caused by court decisions which, sustaining legal actions filed by depositors, ordered the Bank to reimburse deposits at an exchange rate greater than the Ps.1.40= US$ 1.00 exchange rate. In this connection, compensation for amounts paid in compliance with final court decisions was requested, without prejudice to such other amounts as may be ordered to be paid upon the issue of new final court decisions that cause the Bank to seek liquidated damages.
The Argentine Supreme Court of Justice ruled on the case "Province of San Luis against the Argentine National Government" declaring article 2 of Decree No. 214/02 unconstitutional. At the date of these financial statements, the Supreme Court had not yet ruled on certain cases involving US dollar deposits of individual savers. Although the criterion to be followed by the Supreme Court in ruling on these cases will not be mandatory for the lower courts, it is an indication of possible rulings in similar cases to be heard by the courts.
COMPENSATION TO FINANCIAL INSTITUTIONS
Decree No. 214/02 provides for the issue of a bond payable with the funds of the national treasury to cover the deficit in the financial system arising from the imbalance generated by the devaluation and the asymmetric conversion into pesos of assets and liabilities explained above.
In accordance with the provisions of Law No. 25,561 and Decrees Nos. 214/02, 320/02, 410/02, 471/02, 704/02, 905/02, 992/02 and their amendments and complementary rules, and of Argentine Central Bank Communiques "A" 3467, 3507, 3561, 3648 and their amendments and complementary rules, a significant portion of foreign currency assets and liabilities that formed part of financial institutions' net foreign currency position as of December 31, 2001, were converted into pesos at different exchange rates.
In June 2002, Decree No. 905/02 established a new method of calculating the amount of the compensation to be received by financial institutions, which replaced the provisions of Decree No. 494/02.
Sections 28 and 29 of Decree No. 905/02 established the restoration of financial institutions' equity at the time of the conversion into pesos by means of compensating financial institutions for:
1) the losses arising from the conversion into pesos of a large portion of their obligations at the exchange rate of Ps. 1.40 per US dollar, which is higher than the exchange rate of Ps. 1 per US dollar applied for the conversion into pesos of certain receivables in foreign currency, by means of a peso-denominated compensatory bond due 2007.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
2) the short foreign currency positions after the mandatory conversion into pesos of a portion of financial institutions' assets and liabilities, by converting the compensatory bond originally issued in pesos into a dollar-denominated bond and, if necessary, through the issuance of a dollar-denominated hedge bond. To this end, the issuance of national government bonds in US dollars, accruing interest at Libor and maturing in 2012 (BODEN 2012) was established.
Argentine Central Bank Communique "A" 3650 and complementary rules established the procedure that financial institutions were to use to calculate the compensatory and hedge bonds, based on the foreign currency balances as of December 31, 2001 disclosed in their audited financial statements. With regards to foreign branches and subsidiaries, this compensation has been restricted to the negative effects of the mandatory conversion into pesos of secured loans granted to the public sector.
This method of determining the amount of the compensatory and hedge bonds, which does not contemplate certain assets and liabilities converted into pesos due to the application of Decree No. 214/02, corresponding to foreign branches and subsidiaries and controlled entities engaged in complementary activities, was contrary to the objectives of Decrees No. 214/02 and No. 905/02, and is detrimental to the Bank. The Bank also believes that the rule was an arbitrary act in the light of the fact that identical economic acts are included or excluded from the compensation, depending on whether they are performed directly by the Bank or through a subsidiary, or whether the receivable originated abroad is of a public or a private origin.
Through a letter dated September 16, 2002 sent to the Ministry of Economy and to the Argentine Central Bank, the Bank formally protested against the procedure used, reiterating prior presentations, and left express evidence that "it will not accept or approve the validity of any system that may lead to losses of its assets, which are not fully compensated, or to the exclusion from the compensation of assets and liabilities corresponding to branches, subsidiaries and controlled entities engaged in complementary activities that form part of the consolidated assets of Banco de Galicia y Buenos Aires S.A." The Bank also reserved its right to appeal before a federal court for damages caused by those measures and by the facts or omissions that may be attributable to the national government which may affect the guarantees of inviolability of private property and tax equality. The Argentine Central Bank Communiques mentioned above set July 29, 2002 as the deadline for complying with the reporting requirements, so that each institution could report the amount of compensatory and hedge bonds to which it was entitled. The Bank complied with this requirement. However, during September 2002, the Argentine Central Bank released Communique "A" 3716, which established changes in the compensation calculation method. This led to a new presentation being made on September 16, 2002. The amount determined in line with applicable regulations was US$ 787,541 in respect of compensation and US$ 618,229, in respect of hedge of the short foreign currency position.
On October 28, 2002, Decree No. 2167/02 amended Section 29 of Decree No. 905/02, including in the calculation of the compensation the assets recorded at foreign branches and subsidiaries to which Decree No. 214/02 and supplementary rules was applicable, but did not contemplate any modification regarding assets and liabilities recorded at controlled companies engaged in complementary activities, which were also affected by the provisions of the Decree and still continue to be excluded from such compensation. As such, the statements made in connection with companies are still valid. Through Communiques "A" 3805 and "A" 3825, the Argentine Central Bank ruled the amendments established by Decree No. 2167/02, establishing a new reporting requirement, the deadline of which was December 23, 2002.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
A total amount of US$ 2,254,027 of face value of BODEN 2012 was determined by the Bank as the amount due for compensatory and hedge bonds as of December 31, 2002.
Within the process for the determination of the compensation amount, on October 30, 2003, the Argentine Central Bank sent a letter to the Bank in which it formulated observations to certain criteria and to he computation of certain items, that would modify the final amount of the
compensation. The Bank accepted and recognized an adjustment to the original face value of the compensation of US$ 53,946, from which it could be inferred that the final compensation amount receivable would be US$2,200,081 of face value of BODEN 2012. The Bank has requested and has been granted authorization to examine the records detailing other formulated observations that the Bank did not agree with.
After having analyzed the documents furnished by the Argentine Central Bank, on April 12, 2004, the Bank sent a written reply to the Argentine Central Bank addressing the observations made and resolution was formally requested. Such rectification is still pending definition by the Argentine Central Bank together with the complementary regulations released by Communique "A" 4122 and "A" 4130 dated March 26 and April 26, 2004, respectively. In the letter, the Bank also responded the observations on current account and credit card debit balances, challenging the observations made by the Argentine Central Bank and filing the pertinent motion for reconsideration.
In the opinion of the Bank's legal advisors, the determination of the compensation amount, which is still in the process of being finalized, has been made by the Bank on the basis of a proper interpretation of applicable legislation. At the date of these financial statements, no resolution had yet been issued by the Argentine Central Bank. The Bank recognized a provision in connection with the pending dispute in "Provisions for Other Contingencies."
As of December 31 , 2003, Ps. 4,629,595 on account of compensation to be received was recorded in "Other Receivables Resulting from Financial Brokerage - Compensation to be Received from the National Government." The securities received on account of compensation, after the use of a portion of those securities for settlement of deposits of Banco de Galicia Uruguay S.A., were recorded in "Government Securities - Holdings in Investment Accounts" for Ps. 1,609,982.
The Ps. 1,676,860 advance to be requested to the Argentine Central Bank for the purchase of the hedge bond, including the effect of Decree No. 2167/02, was recorded under "Other Liabilities Resulting from Financial Brokerage-Advances for the Acquisition of National Government Bonds LIBOR 2012 in US dollars." This advance, including CER principal adjustment and accrued interest amounting to Ps. 859,286, totaled Ps. 2,536,146.
The conditions for financing the purchase of the BODEN 2012 corresponding to the hedge bond have been specified in Section 29, subsection g of Decree No. 905/02 and contemplates the delivery by financial institutions of assets as security for at least 100 % of the advance received.
COMPENSATION FOR APPLICATION OF THE CER/CVS
Law No. 25,796 established compensation to financial institutions for the negative effects on their equity derived from the application of the CER to deposits originally denominated in foreign currency and converted into pesos, and from the application of the CVS to certain loans. This compensation will be paid through the delivery of peso-denominated national government bonds maturing 2013 (BODEN 2013).
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Decree No. 117/04 (published in the Official Gazette on January 26, 2004) regulated the application of Law No. 25,796.
Through Communique "A" 4114, the Argentine Central Bank regulated the reporting requirements for determining the compensation amount. As this compensation was optional, financial institutions were required to state their adherence by an established deadline through a letter signed by their legal representative; failure to submit this letter caused financial institutions to be considered to have waived their right to compensation. Such deadline was May 18, 2004 as laid down by Argentine Central Bank Communique "A" 4136.
To receive compensation, financial institutions were required to report on the following: (i) principal and interest balances as of January 31, 2002 of the portfolios subject to the application of the CVS by line of credit (mortgage, pledge and personal loans), plus interest accrued at contractual rates from January 31, 2002 up to and including February 2, 2002, net of settlements made on January 2, 2002, loan loss allowances as of December 31, 2001, and a 5% re-collectibility factor; (ii) the percentage they wished to subject to this regime, which would be the same for all lines of credit; (iii) the weighted average of the interest rates applied to each of the lines of credit, as of February 3, 2002; and (iv) the weighted average life of the credit portfolio segregated by line, as of February 3, 2002.
The Finance Secretariat of the Ministry of Economy was appointed to perform the calculation of compensation based on the data reported, for which it was to compare the principal balance adjusted by applying the CER, plus a 2% annual interest rate, to that resulting from adjusting the debt by applying the CVS at the average interest rate established for the line. If a positive difference was obtained, compensation shall be provided by the government, otherwise, the negative difference shall be reimbursed by the financial institution.
Based on the guidelines established in Law No. 25,796, the Bank has recorded the estimated compensation in the amount of Ps. 102,705 as of December 31, 2003, under "Other Receivables Resulting from Financial Brokerage," taking into account a full option.
On May 3, 2004, through its Resolution No. 302/04, the Ministry of Economy approved the calculation method to be used by the Finance Secretariat to determine the face value of the BODEN 2013 to be delivered to financial institutions adhering to the compensation regime created by Law No. 25,796. This resolution and Argentine Central Bank Communique "A" 4136 have regulated the compensation regime in a way that, in the opinion of the Bank, is contrary to the provisions of Law No. 25,796. For this reason, on May 6, 2004 the Bank made a presentation to the National Executive Branch, the Ministry of Economy and the Argentine Central Bank, maintaining the claim made on December 30, 2003 and supplementing its grounds. On May 18, 2004, the deadline for financial institutions' to adhere to the compensation regime, the Bank did not request to participate in such compensation regime and made another presentation to the Ministry of Economy and the Argentine Central Bank, reiterating its request for compensation for the negative effects on its financial condition derived from the application of the CVS to certain pesified assets and the unequal application of the CER to certain liabilities, and challenging Resolution No. 302/04 of the Ministry of Economy, under the terms of Section 24 of Law No. 19,549. As a consequence the Bank will fully provissioned the estimated compensation above mentioned.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
TREATMENT OF EXTRAORDINARY ASSISTANCE TO FINANCIAL INSTITUTIONS BY THE ARGENTINE CENTRAL BANK
Decree No. 739/03 issued on March 28, 2003, established a voluntary procedure for the restructuring of the extraordinary financial assistance for liquidity support granted by the Argentine Central Bank to financial institutions during the 2001 and 2002 economic crisis. The basic purpose was to harmonize the cash flows of those financial institutions that are simultaneously debtors (for having received financial assistance from the Argentine Central Bank) and creditors (for their holdings of public sector debt instruments) of the public sector.
Section 9 of the above-mentioned Decree provided that the balances due will be amortized in pesos in the same number of installments as the assets granted as collateral for the financial assistance received, without exceeding 70 installments. In this connection, Communique "A" 3941 established a minimum accumulated amortization schedule and a monthly repayment of at least 0.90% of the adjusted balance. Mandatory and voluntary accelerated amortization is envisaged when the rate of interest earned on the assets granted as collateral exceeds 3.5% per annum.
Financial assistance subject to this repayment system shall be collateralized by secured loans to the national government originated under Decree No. 1646/01, secured loans and bonds issued within the framework of Decree No. 1579/02, or bonds issued under Decrees No. 905/02, No. 1836/02 and No. 739/03.
The Argentine Central Bank shall modify the above-mentioned repayment conditions when the Unit for the Restructuring of the Financial System (URSF, created under Decree No. 1262/03) so establishes it, subject to the following conditions:
- The average life of the assets granted as collateral for the financial assistance received exceeds 70 months.
- The financial institution falls under the provisions of sections 34 and 35 bis of the Financial Institutions Law and has adopted a reorganization plan approved by the URSF.
In this case, repayment shall be made in the same number of installments as that of the assets granted as collateral for the financial assistance received, with a maximum of 120 installments, and a minimum monthly amortization of 0.40%. Also, upon occurrence of an event of default, the URSF has the right to accelerate the maturiry of such financial assistance.
The financial institutions that wish to enter into this repayment system were required to have normalized the situation of their foreign debt before December 5, 2003, under the terms of section 1 of Argentine Central Bank Communique "A" 3940.
The Bank has met these requirements. On November 25, 2003, a base agreement was reached with the members of an "ad hoc" creditors committee regarding the proposed terms for the restructuring of the debt in foreign currency subject to foreign legislation (foreign debt) of the Bank's head office and cayman branch. In accordance with Argentine Central Bank Communique "A" 3940, this was a necessary requirement for the Bank to restructure the financial assistance for liquidity support owed to the Argentine Central Bank, as established by Decree No. 1262/03.
On December 3, 2003, through Resolution No. 460/03, the Board of Directors of the Argentine Central Bank notified the Bank of the approval of the terms and conditions of the Bank's proposal.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
On February 3, 2004, the Argentine Central Bank informed the Bank that it had approved the Bank's request for repayment of debt with the Argentine Central Bank for liquidity support, as called for by Decree No. 739/03, and extended through Decree No. 1262/03, as well as the amortization schedule proposed, on the basis of the minimum amortization period established by applicable regulations and of the cash flow provided by the assets eligible for collateral for repayment of the debt. On March 2, 2004, the first installment was paid.
SITUATION OF THE BANK
The situation described above affected the Bank in the form of a lack of liquidity as a result of the drop in deposits, which was so significant that it made it necessary for the Bank to request financial assistance from the Argentine Central Bank.
On March 21, 2002, the Bank submitted to the Argentine Central Bank the Galicia Capitalization and Liquidity Plan, a regularization and rehabilitation plan (the "Plan") which contemplated: (i) the immediate restoration of the Bank's liquidity levels, including the supply of the necessary resources to achieve a solid cash position in order to enable the Bank to reimburse a significant portion of its demand deposits without requiring any financial assistance from the Argentine Central Bank; (ii) an increase in the Bank's capitalization in the context of the restructuring of its foreign debt; (iii) the orderly winding-down of its operating units abroad; and (iv) the streamlining of the Bank's operating structure and a significant reduction of its administrative expenses in order to adapt to levels of activity significantly lower than experienced in the pre-crisis period. The Plan also included temporary exemption from compliance with the pertinent technical ratios and the reduction of the charges or fines arising from any non-compliance incurred or to be incurred, before implementing the plan, pursuant to the Financial Institutions Law (Law No. 21,526). This Plan was approved by the Board of Directors of the Argentine Central Bank on May 3, 2002.
As described below, to date, the Bank has complied with the following components of the Plan: the restoration of its liquidity levels; the streamlining of its operations with the consequent reduction of its administrative expenses; the orderly winding-down of its operating units abroad, the restructuring of its foreign debt; and the increase in its capitalization tied to this restructuring. As regards the restructuring of its foreign debt, the Bank managed to refinance the liabilities of its New York Branch (currently closed) and the deposits of Banco de Galicia Uruguay S.A. in July and December 2002, respectively, the deposits of Banco de Galicia (Cayman) Limited (in provisional liquidation) in July 2003, and the foreign debt of the head office in Argentina and its cayman branch in May 2004. Furthermore, with the approval of the Argentine Central Bank, the Bank restructured its debt with Banco de Galicia Uruguay S.A., the principal amount of which was US$ 399.5 million, in August 2003.
Liquidity
The initial increase in the Bank's liquidity, after the launch of the Plan, was a result of:
- Securitization (and/or sale) of mortgage and commercial loan portfolio for a total amount of Ps. 400,000, during April 2002.
- A loan from Seguros de Depositos S.A. (SEDESA) for the US dollar equivalent of Ps. 200,000, converted at the exchange rate prevailing on the day prior to that of the disbursement, for a term of five years and at an interest rate of 180-day LIBOR plus 300 basis points, which was subscribed on March 21, 2002.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
- A loan from the Fiduciary Fund for the Assistance to Financial Institutions and Insurance Companies for the US dollar equivalent of Ps. 100,000, converted at the exchange rate prevailing on the day prior to that of the disbursement, for a three year term and an interest rate of 180-day LIBOR plus 400 basis points, with a floor of 8.07%, which was subscribed on April 30, 2002. As collateral for the loan, the Bank assigned secured loans for Ps. 185,500.
In addition, the Bank refinanced a debt of Ps. 574,000 with the Bank Liquidity Fund by extending its maturity to February 2005, which was settled after the implementation of the Plan with financial assistance provided by the Argentine Central Bank under the same conditions as those of the original debt on May 9, 2002.
After the initial strengthening of the Bank's liquidity levels within the framework of the renegotiation of its debt and after the implementation of the Plan, the Bank's liquidity levels stabilized and were restored, and no further financial assistance was required from the Argentine Central Bank.
Reduction of expenses
Within the framework of the Plan the Bank made significant progress in adapting its corporate structure and administrative expenses to the lower levels of activity recorded in 2002 and to the new regulations issued during that year.
To this end, during 2002, the number of branches of the Bank was reduced by 61 branches, equivalent to 21.1% of its branch network at December 31, 2001, and the Galicia Ahora network, which at that date consisted of 118 customer service centers, was fully absorbed by the branch network. Furthermore, through voluntary retirement plans, for a cost of approximately Ps. 130 million, the Bank's headcount was reduced by 1,996 employees by June 30, 2003, which is equivalent to 34% of the headcount as of December 31, 2001. The Bank has also renegotiated all rental contracts and contracts with system, communication and other suppliers.
New York Branch and operating units abroad
According to the guidelines of the Plan, during fiscal 2002 the debt of the New York Branch was restructured, as a necessary step for its orderly closing, which took place on January 30, 2003.
The "Restructuring Plan" was submitted to the Office of the Comptroller of the U.S. Treasury ("OCC") on March 22, 2002. This Plan contemplated the voluntary and orderly termination of the operations of the New York Branch and its subsequent closing, after: (i) payment of small deposits with the Branch; (ii) the renegotiation of its obligations with third parties; and (iii) the transfer of the renegotiated debts to the head office in Argentina. As of March 31, 2002, the New York Branch had obligations with third parties for a total amount of approximately US$ 328 million. At the end of fiscal year 2002, the New York Branch had restructured all its obligations with third parties.
The restructuring of the New York Branch's debt consisted in rescheduling its commercial debt amounting to US$51 million in the short term paying 20% of it in cash and transferring the remaining 80% to the head office in Argentina. At the date of these financial statements the total amount of that debt had been settled. Also, of the total financial debt of approximately US$ 237 million, US$ 125.5 million was restructured at the Head Office for a 5 year term, with a grace period of 2 years, US$ 68.9 million was paid in cash and a debt reduction of US$42.6 million was granted. Of total deposits of US$30 million, the Branch paid in cash deposits for low amounts
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
totaling US$ 12.5 million, and rescheduled US$ 17 million at the head office in Argentina. The rest of obligations and contingencies for letters of credit were transferred to the head office in Argentina.
Furthermore, within the framework of the Plan, the representative offices at Sao Paulo (Brazil) and London (United Kingdom), as well as Galicia y Buenos Aires Securities (UK) Ltd., the securities house controlled by the Bank and organized in the United Kingdom, were closed in September 2002.
Restructuring of the foreign debt of the head office in Argentina and its Cayman branch
During 2002 and 2003, formal negotiations were carried out with the members of an "ad hoc" creditors committee, composed of the Bank's main bank and multilateral creditors in order to restructure the foreign debt of the Bank's head office in Argentina and its Cayman branch, for a total principal amount of US$ 1,365 million. On November 25, 2003, the Bank reached a non-binding agreement in principle on the terms of the proposal for the restructuring of that debt.
Through Resolution No. 460/03 dated November 27, 2003, the Board of Directors of the Argentine Central Bank approved the terms and conditions of the non-binding agreement reached with the "ad hoc" creditors committee.
In accordance with Argentine Central Bank Communique "A" 3940, this approval was a necessary requirement for the Bank to be able to restructure the financial assistance received from the Argentine Central Bank for liquidity support, as established by Decrees No. 739/03 and No. 1262/03.
The restructuring of the Bank's "9% Negotiable Obligations Due 2003", "Step Up Floating Rate Negotiable Obligations Due 2002", and of the Bank's foreign debt with bank and multilateral credit entities (the bank creditors) was made up of two stages.
First, the Bank offered its bondholders and bank creditors the ability to exchange their existing debt for units comprised of a new long-term debt instrument maturing in 2014 and a new subordinated debt instrument maturing in 2019 in a par-for-par first step exchange offer. The bondholders and bank creditors were then given the option to participate in a second step to the exchange, in which they could receive for their units:
- cash (at a discount) (the "cash offer");
- BODEN 2012 (at a discount) (the "BODEN offer");
- new long-term debt instruments (at par); or
- new medium-term debt instruments (at par) and up to 149 million preferred shares of our preferred shares (or, instead of such shares, cash, if any, paid to us by existing shareholders electing to subscribe for our preferred shares in a preemptive rights offering) (the "equity participation option").
In addition, creditors that agreed to sign firm commitments to the Bank for new trade facilities in an aggregate principal amount up to US$ 35 million were permitted to elect to receive new medium-term debt instruments maturing in 2010 (at par) (the "new money option").
Each of the optional second-step offers was subject to proration.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
To make the Bank's foreign debt restructuring possible under the above mentioned structure, as requested by the Bank's creditors:
- The Group approved a capital increase through the issuance of up to 149 million preferred shares each of them mandatorily convertible into one class B share of Grupo Galicia on May 13, 2005, the first anniversary date of issuance (or, if earlier, on the occurrence of a change of control of Grupo Galicia). As a result of the exercises made by the existing shareholders in our preemptive rights offering, creditors opting for the equity participation offer received 87.8 million preferred shares and US$30 million in cash and we received approximately US$100 million of subordinated bonds in exchange for those shares and cash. We issued the 149 million preferred shares on May 13, 2004.
- The Group's controlling shareholders assigned part of their preemptive and accretion rights to a trust. In addition to EBA Holding, a 25.74% shareholder of Grupo Galicia, which assigned 100% of its preemptive and accretion rights to the trust, certain other shareholders of Grupo Galicia, collectively representing 19.52% of the shares of Grupo Galicia, also assigned 50% of their preemptive and accretion rights to the trust.
- We entered into a registration rights agreement for the benefit of the
holders of our preferred shares in the United States in which we agreed
to: (i) file a shelf registration statement with the U.S. Securities and
Exchange Commission covering the resale of those restricted preferred
shares within 270 days of the expiration date of the exchange offer; (ii)
use our reasonable best efforts to cause the shelf registration statement
to become effective within 360 days of the offer's expiration date; and
(iii) use our reasonable best efforts to keep the shelf registration
statement effective from on or before June 1, 2005, until the date on
which all of the restricted preferred shares have been sold under the
shelf registration statement or September 1, 2005, whichever comes first.
- We entered into an agreement with the Bank's bank creditors in which we agreed to maintain certain corporate governance standards and to provide them with certain financial information and reports on a quarterly and annual basis.
Creditors holding US$ 1,320.9 million of the Bank's debt participated in the restructuring, representing 98.2% in aggregate principal amount of all debt that was subject to the restructuring. As a result of the elections made by creditors in the second step of the restructuring, the only election that was oversubscribed was the equity participation offer and, therefore, the equity participation offer was subject to a proration factor of approximately 45.6%.
In addition, in accordance with the terms of the Bank's foreign debt restructuring, the Bank made a US$15.5 million cash payment for interest accrued until April 30, 2002, and applied US$42.4 million not used in the cash offer to prepay at par (plus capitalized interest) long-term instruments to be delivered to creditors participating in the restructuring.
Based on the final amounts validly tendered, on May 18, 2004, the Bank:
- paid US$13.6 million to creditors participating in the cash offer;
- transferred US$36.9 million of nominal value of BODEN 2012 to creditors participating in the BODEN offer; and
- issued the following new debt instruments:
- US$ 648.5 million of long-term dollar-denominated debt instruments, of which US$ 464.8 million were dollar-denominated negotiable obligations due 2014 issued under the indenture.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
- US$ 399.8 million of medium-term dollar-denominated debt instruments, of which US$ 352.8 million were dollar-denominated negotiable obligations due 2010 issued under the indenture.
- US$ 230.0 million of subordinated dollar-denominated debt instruments, of which US$ 218.2 million were dollar-denominated negotiable obligations due 2019 issued under the indenture.
The Bank also restructured trade debt for a principal amount of US$ 25.3 million in exchange for US$ 26.6 million of new trade debt to be repaid in 12 equal, consecutive monthly installments beginning in June 2004.
In addition, the Bank entered into a new trade facility agreement for US$ 35 million with creditors participating in the new money option.
Through its Resolution No.152/04, dated may 14, 204, the Board of Directors of the Argentine Central Bank approved the economic terms of the Bank's foreign debt restructuring.
Capitalization.
The Plan contemplated the capitalization of the Bank as an integral part of the restructuring of its external debt. The Bank proposed to the Argentine Central Bank a capitalization increase of up to US$ 300 million.
In this connection, the Meeting of Shareholders of the Bank held on September 30, 2003 approved the creation of a global debt program under Argentine Law for the issuance and public offering of negotiable obligations, not convertible into shares. In addition, the shareholders resolved that the negotiable obligations issued under the Program could be subordinated in order to be computed as capital for Argentine Central Bank regulatory purposes, only and not as capital stock.
This Program was authorized by Resolution No. 14708 of the National Securities Commission (CNV) dated December 29, 2003, and authorization to issue up to US$ 1,400 million or its equivalent in other currencies, was provided on April 23, 2004, through CNV Resolution No. 14773.
As a result of the restructuring of the foreign debt of the Bank's head office in Argentina and that of its Cayman branch, the Bank increased its capitalization in the amount of US$ 278.9 million, as a consequence of : (i) the exchange of debt subject to restructuring for cash and BODEN 2012 at a discount and the capitalization of interest at a rate lower than the contractual rate recorded in the Bank's books, which generated in aggregate a US$ 48.9 million increase in shareholders' equity; and (iii) the issuance of US$ 230.0 million of subordinated debt computable as supplemental capital in accordance with Argentine Central Bank's capital adequacy rules.
As a result of the restructuring of the New York Branch, in 2002, the Bank had increased its capitalization by US$ 42.6 million, as a result of the exchange of old debt for new debt or cash at a discount.
CLAIMS DUE TO FOREIGN EXCHANGE DIFFERENCES ARISING FROM THE REPAYMENT OF FINANCIAL ASSISTANCE DURING THE EXCHANGE HOLIDAYS THAT TOOK PLACE IN JANUARY 2002
During December 2001, the Bank received financial assistance in pesos from the Argentine
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Central Bank to cover a temporary lack of liquidity. This assistance was repaid applying resources in US dollars granted by the Bank Liquidity Fund (BLF) on January 2 and 4, 2002.
At the date those funds were credited, the Argentine Central Bank had declared an exchange holiday.
Before the markets were reopened, Law No. 25,561 was enacted on January 6, 2002, which repealed the convertibility system and fixed the new exchange rate at Ps.1.40 per US dollar.
As a result of the aforementioned rules, during the exchange holiday the Bank was unable to perform foreign exchange operations. Accordingly, the funds in US dollars credited by the BLF on January 2 and 4, 2002 had to remain in US dollars until the markets were reopened. At the date markets were reopened, as provided by the rules in force, the US dollar was sold at Ps.1.40 per US$ 1.00.
For this reason, management's view is that, when the Argentine Central Bank allocated US$ 410,000 to the Bank to repay the financial assistance provided, based on the exchange rate at the date of payment of Ps. 1.40 per US dollar, the Argentine Central Bank should have paid Ps. 574,000 instead of Ps. 410,000.
In view of the above, the return of the difference of Ps. 164,000 in values as of January 2002 to the Bank for the restoration of its equity for an equivalent amount should be considered. This matter is still pending and the Bank has not recognized the effect of the aforementioned difference.
SITUATION OF BANCO GALICIA URUGUAY S.A. AND BANCO DE GALICIA (CAYMAN) LTD. (IN PROVISIONAL LIQUIDATION)
The situation described above also significaly impacted controlled companies Banco Galicia Uruguay S.A. and Banco de Galicia (Cayman) Limited (in provisional liquidation).
On February 6, 2002, Banco Galicia Uruguay S.A. (Galicia Uruguay) submitted a letter to the Central Bank of Uruguay in order to: (i) inform the Central Bank of Uruguay of its temporary lack of liquidity, which prevented Galicia Uruguay from continuing to meet the withdrawal demand of deposits; (ii) request financial assistance from the Central Bank of Uruguay to be able to preserve its ability to reimburse all deposits in an orderly manner and face the withdrawal of funds generated by the developments that had ocurred in Argentina; and (iii) request the authorization of the Central Bank of Uruguay to temporarily suspend its operations.
On February 13, 2002 the Central Bank of Uruguay resolved to appoint an intervenor to oversee Galicia Uruguay's management and temporarily suspended all its activities for a term of 90 days, which was subsequently extended through March 31, 2004. The Central Bank of Uruguay has again postponed Galicia Uruguay`s intervention and suspension of activities until the measures agreed upon between Galicia Uruguay and the Uruguayan and Argentine regulatory authorities, described below, are implemented.
On June 10, 2002, Galicia Uruguay submitted to the Central Bank of Uruguay a proposal for the restructuring of its debt in respect of deposits. The proposal consisted of an initial cash payment in US dollars equivalent to 3% of the credit balance of each creditor, and for the remaining balances, at the creditor's election, a time deposit or negotiable obligations issued by Galicia Uruguay, maturing in September 2011, to be amortized in nine annual and consecutive
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
installments, the first two installments for 15% of the balance, and the following ones, for 10% of the balance, at a fixed interest rate of 2% per annum.
On June 20, 2002, a letter was presented before the Central Bank of Uruguay offering a pledge on Galicia Uruguay's commercial loan portfolio as guarantee of payment of the negotiable obligations and time deposits to be issued under the restructuring proposal.
On July 18, 2002, the Central Bank of Uruguay informed Galicia Uruguay that it would not object to any proposal the latter could make to its depositors provided at least a 75% adherence is obtained. This percentage represents the majority legally required to achieve an out-of-court reorganization plan, pursuant to Uruguayan legislation (Section 29 and subsequent sections of Law 2230 of June 2, 1893).
Acceptance by depositors represented deposits for US$ 930,000, out of a total amount of US$ 1,176,000, corresponding to holders of 7,067 accounts out of a total of 12,271. Measured in terms of deposits, this represented a percentage of acceptance of more than 79% of total deposits, which exceeded the legal majority required.
On December 23, 2002, the Court of Montevideo hearing the case approved the reorganization plan requested by Galicia Uruguay, making it binding for all creditors.
In accordance with a resolution adopted by the Central Bank of Uruguay, as from January 9, 2003, Galicia Uruguay implemented a payment program, which contemplates the reimbursement of 100% of deposits in US dollars plus interest to investors. As agreed, the first step consisted of an initial payment of 3% in cash to each holder of time and savings accounts and demand deposits as of February 13, 2002, as well as the delivery of transferable rescheduled time deposit certificates, as the case may be, issued by Galicia Uruguay.
On June 17, 2003 the Galicia Uruguay opened a period in which it received expressions of interest from customers for different alternatives of exchanging their deposits restructured in 2002 (such as time deposits or negotiable obligations) for different proportions of BODEN 2012 and/or new negotiable obligations to be issued by Galicia Uruguay. The purpose of this exchange was to voluntarily modify the profile of the debt already restructured to satisfy the preferences of customers for different combinations of liquidity and return, and to improve the distribution of cash flows over time. The term for this voluntary exchange expired on July 24, 2003. Galicia Uruguay depositors exercised those options in a total amount of US$ 185 million, which included opting to receive BODEN 2012 for US$ 136 million, in addition to new negotiable obligations to be issued by Galicia Uruguay.
Through Resolution No.338, the Board of Directors of the Argentine Central Bank approved the terms and conditions for the restructuring of the debt of US$ 399.5 million (principal) that the Bank owed to Galicia Uruguay, as well as the transfer to Galicia Uruguay of cash for US$ 72.1 million (principal) and BODEN 2012 of US$ 137 million (face value), in payment of the first principal installment and interest thereon due at August 15, 2003. The terms and conditions approved by the Argentine Central Bank were: (i) a payment of US$ 40.9 million and of US$ 137 million of face value of BODEN 2012 on the principal balance on August 15, 2003, and (ii) the settlement of the remaining balance of approximately US$ 221.6 million in 8 annual consecutive installments, with accrued interest falling due in August of each year.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Under Resolution No. 338, interest paid on August 15, 2003 was set at US$ 31.2 million, which resulted from applying the contractual rate until December 31, 2002 and thereafter, LIBOR plus 150 basis points.
During the first days of September 2003, as scheduled, Galicia Uruguay began to pay the second installment envisaged in the original restructuring schedule, with the amendments introduced by the exchange offer. At the same time, Galicia Uruguay began to settle the exchange offer, primarily on the basis of BODEN 2012 for US$ 137 million (face value).
On December 9, 2003, Galicia Uruguay commenced a period in which it solicited expressions of interest from its customers to participate in a second voluntary exchange of all restructured deposits and negotiable obligations or certificates issued by Galicia Uruguay or its subsidiary, Banco de Galicia (Cayman) Ltd. to restructure deposits. This voluntary exchange offer contemplated a cash advance, equivalent to an advance of the installment that should be paid in September 2004, and the delivery of BODEN 2012 for the remaining balance. The exchange was limited to US$ 300 million. The February 13, 2004 deadline for presenting those opinions was extended until February 20, 2004. The deadline for the exchange was March 15, 2004. Galicia Uruguay settled with its customers for a total amount of around US$ 206 million. In addition, on April 2, 2004, Banco de Galicia y Buenos Aires S.A. transferred to Galicia Uruguay BODEN 2012 for US$170 million (face value), which were first allocated to the early amortization of principal amount of installments for US$ 111.5 million on the debt held through the Cayman Branch with Galicia Uruguay.
In order to assist Galicia Uruguay in complying with obligations arising from the reorganization plan approved, the Central Bank of Uruguay authorized the creation of a trust to hold assets of Galicia Uruguay, the proceeds of which will be used for the repayment of the obligations under the agreement.
The Central Bank of Uruguay resolved that, concurrently with the implementation of the trust, Galicia Uruguay S.A's intervention will be lifted and its board of directors restored. Given that the license to operate as a domestic commercial bank, which is granted by the Central Bank of Uruguay, is not necessary to such effects, such license will be revoked. However, Galicia Uruguay will retain the authorization that had been granted to it by the Executive Branch of the Uruguayan government. Adoption of this resolution by the Central Bank of Uruguay does not modify any current terms or depositors and bondholders' rights.
At the beginning of 2002, the situation of Galicia Uruguay affected its subsidiary Banco de Galicia (Cayman) Ltd. (in provisional liquidation) because one of its main assets was a deposit for US$ 79.5 million in Galicia Uruguay. Consequently, at the request of Banco de Galicia (Cayman) Ltd., on July 18, 2002 the authorities in the Cayman Islands appointed a provisional liquidator in order to reach a voluntary restructuring agreement between Banco de Galicia (Cayman) Ltd. and its creditors, as an alternative to its liquidation.
At the end of May 2003, Banco de Galicia (Cayman) Ltd. (in provisional liquidation) and the provisional liquidator completed the debt restructuring plan and with the authorization of the court in the Cayman Islands ("the Court") they distributed the plan to all creditors for their consideration. The restructuring plan will be in force until April 30, 2012. While this plan remains in effect, the subsidiaries' assets will be administered by the liquidators for the benefit of the creditors.
On May 29, 2003 the restructuring proposal made to creditors was submitted to the Court. The terms of this proposal were as follows: an initial cash payment of 5% of the amount of the debt (principal and interest) due as of July 18, 2002, plus a transferable debt certificate for 95% of the amount of the debt (principal and interest) due as of July 18, 2002. The conditions of this
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
certificate are as follows: (i) amortization of principal in nine annual consecutive installments, the first two for 15% of the principal and the remaining for 10%, payable as from September 21st of each year; (ii) interest at 2% per annum (plus 1% provided that the entity still has assets following reimbursement to all its creditors according to the proposed plan and repayment of the subordinated loan described below); (iii) the certificate shall accrue interest as from the date of the agreement; and (iv) interest shall be payable annually together with the principal, calculated on the remaining balance. After the debt with all Class A creditors has been repaid, the remaining assets of Banco de Galicia (Cayman) Limited (in provisional liquidation) shall be allocated to the repayment of the US$ 2.9 million debt held with Galicia Pension Fund Ltd. (a subsidiary of Banco de Galicia (Cayman) Ltd. (in provisional liquidation), which is subordinated to the repayment of the debt with all Class A creditors. Furthermore, a subordinated loan for US$1.2 million was obtained from the Group, which shall be repaid after the debt with all creditors according to the proposed plan has been amortized.
On July 10, 2003 a creditors' meeting was held in order to consider and approve fully or partially the repayment plan proposed by Banco de Galicia (Cayman) Ltd. At that meeting, that plan was approved without modifications by creditors who, in number and amount of receivables represented 99.7% of the total number of votes issued. The degree of acceptance of the proposed plan exceeded the legal majority of at least 50% of the number of creditors and 75% of total receivables corresponding to the votes cast. With the approval of the proposed plan by the Court in the Cayman Islands and its registration with the Company Record of that jurisdiction, both of them having taken place on July 16, 2003, the proposed plan came into force as from that date and is mandatory for all creditors.
This initial payment was made on August 8, 2003. The first installment (15%) was paid in the middle of September 2003.
In accordance with the Plan, Banco de Galicia (Cayman) Ltd. commenced voluntary liquidation and surrendered its banking license effective December 31, 2002.
EFFECTS OF DECREE NO.214/02 AND COMPLEMENTARY RULES ON BANCO GALICIA URUGUAY S.A. AND BANCO DE GALICIA (CAYMAN) LTD. (IN PROVISIONAL LIQUIDATION)
The developments described in the section entitled "Compensation to financial institutions" proved financially detrimental to Galicia Uruguay, due to the devaluation of the Argentine currency and the mandatory conversion into pesos, at different exchange rates, of a portion of its receivables in foreign currency subject to Argentine law.
Such losses have been generated by the fact that, as mentioned earlier, Decree No.905/02 excluded from the calculation of the compensatory and the hedge bonds the assets converted into pesos owned by companies engaged in complementary activities and controlled by the Bank, and by foreign branches and subsidiaries. In other words, the objective envisaged in Section 7 of Decree No. 214/02, which consisted in "establishing the issuance of a bond to cover the imbalance in the financial system", has only been partially met in the case of the Bank. Subsequently, Decree No. 2167/02 and Argentine Central Bank Communique "A" 3805 corrected that omission by complementing the calculation of the compensation, allowing the assets recorded at foreign branches or subsidiaries covered by Decree No. 214/02 to be included in that calculation (see section entitled "Compensation to financial institutions" above).
Within this context, the Bank agreed with Galicia Uruguay to perform the necessary acts
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
to provide the latter, where applicable and subject to the prior authorization of the Argentine Central Bank, with the necessary funds for it to be able to reimburse all restructured deposits.
Subsequently, the two financial institutions complemented that agreement through another agreement which explained the legal effects, whether direct or indirect, of the declarations and covenants contained in the agreement, and that the fulfillment of the commitments undertaken is subject to the normalization of the economic and financial situation of the Bank and to the repayment of the financial assistance granted to it by the Argentine Central Bank. These circumstances are mentioned in section 52 of Resolution No. 281 issued by that body.
2. SIGNIFICANT ACCOUNTING POLICIES
The accounting policies and financial statement presentation conform to the rules of the Argentine Central Bank which prescribes the generally accepted accounting principles for all banks in Argentina (the "Argentine Banking GAAP") that differs in certain respects from generally accepted accounting principles of Argentina applicable to enterprises in general ("Argentine GAAP") (see note 38).
Certain of the required disclosures of the Argentine Central Bank have not been presented herein since they are not material to the accompanying financial statements. In addition, certain presentations and disclosures including the statements of cash flows have been included in the accompanying financial statements to comply with the Securities and Exchange Commission's regulations for foreign registrants.
The consolidated financial statements of Banco Galicia as of December 31, 2001 have been adapted to the same period of time of Grupo Galicia's financial statements.
The following is a summary of significant policies followed in the preparation of the consolidated financial statements.
2.1 UNIT OF MEASUREMENT
The financial statements corresponding to the Argentine operations have been adjusted for inflation up to August 31, 1995. As from that date, in line with professional accounting standards and the regulatory bodies, the financial statements have been prepared without recognizing the changes in the purchasing power of the currency up to December 31, 2001. In line with Argentine Central Bank Communique "A" 3702, Resolution No. 240/02 of the Argentine Federation of Professional Councils in Economic Sciences (F.A.C.P.C.E.) and Resolution No. 415/02 of the CNV, the recognition of the effects of inflation has been resumed in these financial statements since January 1, 2002. For comparative purposes prior periods presented have been restated applying the WPI rate from the period January 1, 2002 to February 28, 2003 (approximately 120.35%).To this end, the restatement method established by that Communique, which is in accordance with the guidelines of Technical Pronouncement No. 6 of the F.A.C.P.C.E. has been followed, considering that the accounting measurements originated prior to December 31, 2001 are stated in the currency value as of that date.
On March 25, 2003, Decree No. 664/03 rescinded the requirement that financial statements be prepared in constant currency, effective for periods on or after March 1, 2003 and, on April 8, 2003, the Argentine Central Bank issued the Communique "A" 3921 and the CNV issued resolution No. 443/03 discontinuing inflation accounting as of March 1, 2003.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The Company has discontinued the application of that method and therefore, it did not recognized the effects of the variations in the purchasing power of the currency originated since March 1, 2003.
Under professional accounting standards, application of that method remained in effect until September 30, 2003. Resolution MD No. 41/03 of the Professional Council in Economic Sciences of the Autonomous City of Buenos Aires (C.P.C.E.C.A.B.A.) established the discontinuation of the recognition of the changes in the purchasing power of the currency since October 1, 2003. During the March-September 2003 period, a deflation rate of approximately 2% was recorded.
2.2 FOREIGN CURRENCY
Foreign currency is stated at the U.S. dollar rate of exchange set by the Argentine Central Bank, prevailing at the close of operations on the last business day of each month.
Assets and liabilities valued in foreign currencies other than the US dollar will be converted into U.S. dollars using the exchange rates communicated by the Argentine Central Bank's trading desk.
For financial reporting purposes, these assets and liabilities are then translated into pesos at the U.S. dollar to Argentine peso exchange rate set by the Argentine Central Bank.
2.3 GOVERNMENT AND CORPORATE SECURITIES
Government securities mainly represent obligations of the Argentine and U.S. governments. Corporate securities included in this caption consist of quoted corporate equity securities and quoted debt securities. Corporate equity and debt securities are considered as held for trading purposes.
Realized and unrealized gains and losses on sales and interest income on government and corporate securities are included as "Net Income from Government and Corporate Securities" in the accompanying income statements.
VALUATION OF GOVERNMENT SECURITIES UNDER ARGENTINE BANKING GAAP
The Argentine Central Bank established the categories in which banks would be able to classify Argentine government securities listed on local or foreign markets and the accounting valuation for the securities in each of these categories. The categories established by the Argentine Central Bank were the following: "investment account" and "held for trading".
Trading securities are marked to market, and any difference between book value and their market price is recognized as a gain or loss in the income statement.
Through Communiques "A" 3021 and "A" 3039, the Argentine Central Bank established that, effective March 1, 2000, investment account securities had to be valued at their acquisition cost increased at the end of each service period by the corresponding coupon rate. Through Communique "A" 3278, the Argentine Central Bank established that, effective June 1, 2001, the holdings incorporated as investment securities had to be valued at their acquisition cost increased by accruing their internal rate of return over the period elapsed since the date of inclusion of the securities in the investment account category.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
If the aforementioned value of the security at the last day of each month is greater than the market value plus 20%, then the value of the security must be written down to the market value plus 20%.
These holdings include BODEN 2012, received within the framework of Sections 28 and 29 of Decree No. 905/02 (see Note 1) recorded at their technical value. The treatment of the difference exceeding 20% between the market value and the carrying value mentioned above does not apply to these securities.
Effective January 7, 2003, Argentine Central Bank Communique "A" 3857 restricted the possibility of classifying securities as holdings in investment accounts, to those existing in the Bank's portfolio as of December 31, 2002.
Unlisted government securities are valued at cost plus income accrued up to the end of the year, where applicable.
SECURED LOANS
Within the framework of Decree No.1387/01, the Bank has participated, on November 6, 2001, in the exchange of Argentine public-sector debt securities and loans, under the Promissory Note/Bond program, for new loans called "secured loans". The main differences between the instruments received and those exchanged consisted of an extension of the amortization term which was 3 years for securities originally maturing up to December 31, 2010 and a reduction of the interest rate, which was set at 70% of the contractual rate, with a maximum rate of 7% per annum for fixed-rate transactions and a Libor rate plus 3% for floating rate loans. As established by section 20 of the above mentioned decree, the conversion was made at the nominal value, at a rate of exchange of Ps.1.0 = US$ 1.0 and in the same currency as that of the converted obligation.
The Argentine Central Bank provided that the gain arising from the difference between the carrying value of the secured loans and the book value of the securities exchanged must be recorded in an asset adjustment account and credited to income on a monthly basis, in proportion to the term of each of the secured loans received.
Had the position of government securities classified in investment accounts and presented for their exchange been valued according to professional accounting standards, shareholders' equity would have decreased by Ps. 446,888 at the exchange date (November 5, 2001).
In accordance with Decree No. 644 dated April 18, 2002, the principal changes are as follows:
- The conversion into pesos of the secured loans originally denominated in US dollars at the exchange rate of Ps. 1.40 per US dollar, as established by Section 1 of Decree No. 471/02.
- The new interest rates to be accrued by those secured loans, as established by Section 3 of Decree No. 471/02 (see Note 1).
On March 28, 2003, the Argentine Central Bank released Communique "A" 3911, which substantially modified the accounting criterion for secured loans to the public sector. Communique "A" 3911 established that secured loans and government securities not subject to the minimum capital requirement to cover market risk (mainly government securities not listed on stock exchanges), promissory notes issued by the Fiduciary Fund for Provincial Development and other financing to the public sector held in financial institution portfolios on or after March 28,
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
2003, must be carried at the lower of "present value" and cost basis plus accrued interest. The "present value" is defined as the "net present value" of a cash flow structure under contractual terms discounted at the rate of 3% set by the Argentine Central Bank through December 2003.
The Bank has recorded in "Financial Expenses - Other" a loss of Ps.198,088 as a result of the application of Communique "A" 3911.
PROVINCIAL SECURED LOANS
Decree No.1579, dated August 28, 2002, established a restructuring of provincial government debt. The restructuring consisted of a voluntary exchange of provincial government debt for bonds (BOGAR) or loans (Promissory Notes), issued by the Fiduciary Fund for Provincial Development ("FFDP") and secured by the federal government's tax receipts shared with the provinces, with a 16-year term, a 2% fixed annual interest rate and amortization in 156 monthly and consecutive installments beginning on March 4, 2005.
The Bank tendered in the exchange under Decree No.1579/02 all of its portfolio of loans to provincial governments and pursuant to the option provided by section 3, subsection k of the Decree, opted to receive promissory notes. As of December 31, 2003, the Bank had recorded in its balance sheet provincial secured loans, valued in accordance with Argentine Central Bank's Communique "A" 3911, in the amount of Ps.3,473.7 million. This amount included Ps.22.0 million of a loan for which the exchange was pending completion as of December 31, 2003. The Bank received BOGAR for the provincial debt for which the exchange had been completed at the close of the fiscal year, despite having opted to receive promissory notes. At the date hereof the Bank had not yet received the Promissory Notes.
2.4 LOANS TO THE NON-FINANCIAL PRIVATE SECTOR
On July 25, 2003, through Communique "A" 3987, the Argentine Central Bank authorized financial institutions to grant loans adjustable by CER, for the purpose of increasing peso-denominated loan origination, both medium-and-long term.
The Argentine Congress enacted Law No. 25,796, which was sent to the National Executive Branch for its promulgation. This Law amends Law No. 25,713, establishing the application of the CVS for the index-adjustment of loans subject to this coefficient until March 31, 2004. As from April 1, 2004 no adjusting index will be applied to financing subject to CVS.
This Law also contemplates compensating financial institutions for the negative effects on their equity derived from the application of the CER to all deposits denominated in foreign currency and converted into pesos, and from the application of the CVS to certain loans in accordance with the above-mentioned regulations. This compensation is to be paid through the delivery of BODEN 2013. ( See note 1 Compensation CER/CVS).
2.5 INTEREST INCOME (EXPENSE) RECOGNITION
Generally, interest income is recognized on an accrual basis using the linear (effective interest) method. For loans and deposits denominated in pesos, with maturities greater than 92 days, interest is recognized on a compounded basis, which provides for an increasing effective rate over the life of the loan or deposit.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The Bank suspends the accrual of interest generally when the related loan is past due and the collection of interest and principal is in doubt. The suspension of interest corresponds to the loans classified as "with problems" and "deficient performance", or below under the Argentine Central Bank's classification rules. Accrued interest remains on the Bank's books and is considered to be part of the loan balance when determining the allowance for loan losses. Interest is recognized on a cash basis after reducing the balance of accrued interest, if applicable.
As indicated in Note 1, for lending and borrowing transactions originally carried out in foreign currency and converted into pesos, the adjustment from the application of the CER or CVS was accrued at year end, where applicable.
2.6 ALLOWANCE FOR LOAN LOSSES AND PROVISION FOR CONTINGENCIES
The Bank provides for estimated future possible losses on loans and the related accrued interest generally through the establishment of an allowance for loan losses. The allowance charged to expense is determined by management based upon loan classification, actual loss experience, current and expected economic conditions, delinquency aging, and an evaluation of potential losses in the current loan portfolio with specific attention to loans where any evidence that may negatively affect the Bank's ability to recover the loan and accrued interest is known.
Related to debtor's classification according to the execution grade, and pursuant to Communique "A" 3918 of the Argentine Central Bank from March 31, 2003, to December 31, 2003, the loan loss reserve for debtors with total indebtedness equal to or lower than Ps.5 million with all Argentine financial institutions should be reserved exclusively based upon its past due performance. The past due performance between, December 1, 2001 and March 31, 2003, should be computed based on one day for every three days past due.
2.7 INVESTMENTS IN OTHER COMPANIES
Investments in Other Companies include equity investments in companies where a minority interest is held, including investments in infrastructure companies and utilities.
Under Argentine Banking GAAP, the equity method is used to account for investments where a significant influence in the corporate decision making process exists. Significant influence is considered to be present if one of the following applies:
- Ownership of a portion of a related company's capital granting the voting power necessary to influence the approval of such company's financial statements and profits distribution.
- Representation in the related company's Board of Directors or corporate governance body.
- Participation in the definition of the related company's policies.
- Existence of significant transactions between the company holding the interest and the related company (for example, when the former is the latter's only supplier or by far its most important client).
- Interchange of senior officers among companies.
- Technical dependence of one of the companies on the other.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Permanent equity investments in companies where corporate decision are not influenced, in terms of the criteria listed above, are accounted for at the lower of cost or share of net book value of the investee.
2.8 FIXED ASSETS AND MISCELLANEOUS ASSETS
Fixed assets and miscellaneous assets are valued at cost restated. Depreciation of those properties, which were subject to the technical revaluation, is reflected in the statements of income.
The depreciation of fixed assets and miscellaneous assets is calculated, where appropriate, based on the revalued amounts of such assets using the straight-line method at rates based on the estimated useful lives of the related assets. The estimated useful lives are 50 years for properties, 10 years for furniture and fixtures and 5 years for others. Leasehold improvements are amortized using the straight-line method over the shorter of the lease term or the estimated useful life of the asset.
The cost of maintenance and repairs is charged to income. The cost of significant renewals and improvements is added to the carrying amount of the respective fixed assets. The carrying amounts and accumulated depreciation allowances for assets sold or retired are eliminated from the respective accounts and gains or losses realized on disposition are reflected in the statements of income.
2.9 INTANGIBLE ASSETS
Intangible assets are valued at cost restated and are amortized on a straight-line basis over 120 months for goodwill and over a range of 60 months for organization and development costs. Under Argentine Banking GAAP, goodwill is no longer recognized as an asset when it is estimated that amounts of future income will not be sufficient to absorb the amortization of goodwill or when there are other reasons to presume that the amount of an investment that has been made will not be recovered in full.
Effective March 2003, Argentine Central Bank Communique "A" 3916 established that the difference resulting from compliance with court decisions made in lawsuits filed challenging the applicability of current regulations to deposits with the financial system, within the framework of the provisions of Law No. 25,561, Decree No. 214/02 and supplementary rules, should also be recorded under this caption, the amortization of which should take place in a maximum of 60 equal, monthly and consecutive installments as from April 2003 (See Note 1).
2.10 SHAREHOLDERS' EQUITY
Shareholders' Equity accounts have been restated following the procedure mentioned in section 2.1, except for "Capital Stock" and "Paid in Capital" accounts, which have been stated at their original values. The adjustment stemming from the restatement of these accounts was allocated to the "Adjustments to Shareholders' Equity" account.
Income and expense accounts have been restated.
Monetary results of exposure to inflation were determined as follows:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
a. "Monetary result of financial brokerage" includes the result of exposure to inflation generated by assets and liabilities related to the usual period of brokerage activity between the supply and demand of financial resources.
b. "Monetary result of operating expenses" includes the result of exposure to inflation generated by monetary assets and liabilities in pesos, related to administrative expenses, pursuant to Argentine Central Bank Communique "A" 3702.
c. "Monetary result of other operations" includes the result of exposure to inflation generated by assets and liabilities not related to the financial brokerage activity.
The income statement and statement of changes in shareholders' equity have been disclosed in accordance with Communique "A" 3800 of the Argentine Central Bank. At the referendum of the shareholder's meeting, the Bank absorbed the loss for the fiscal year 2002, up to the limit of the balances recorded in retained earnings and unrealized valuation difference arising from the net foreign currency position.
2.11 PRESUMPTIVE MINIMUM INCOME TAX AND INCOME TAX
Effective 1998 and for a ten year period a presumptive minimum income tax (PMIT) was established as a complementary component of the income tax obligation. PMIT consists in a minimum taxation, which assesses at the tax rate of 1% of certain productive assets. Ultimately, the tax obligation will be the highest of PMIT and income tax. For financial entities, the taxable basis will be 20% of their computable assets. If in a fiscal year, PMIT obligation exceeds income tax liability, the surplus will be available as a credit against future income tax.
During 2003 and 2002, Banco Galicia incurred tax losses. Therefore, the Bank was required to pay PMIT.
During the year, Grupo Galicia and its non-bank subsidiaries adopted the deferred tax method.
2.12 STATEMENTS OF CASH FLOWS
The consolidated statements of cash flows were prepared using the measurement
methods prescribed by the Argentine Central Bank, but in accordance with the
presentation requirements of Statement of Financial Accounting Standards No. 95:
Statement of Cash Flows ("SFAS No. 95"). SFAS 95 establishes specific
presentation requirements and additional disclosures but does not provide
guidance with respect with the inflation adjusted financial statements. The
effect of inflation restatements and foreign exchange gains and losses on cash
flows related to financing and operating activities has been included in the
line item "Monetary Loss", and the effect of inflation on cash balances has been
included in a separate line item after cash flows from investing activities.
3. RESTRICTED ASSETS
In accordance with Argentine Central Bank regulations, the Bank is required to maintain average monthly assets Those assets computable for compliance with minimum cash requirements are cash and Argentine Central Bank accounts.
The required daily averages calculated on a monthly basis for the month ending on each balance sheet date were as follows:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ------------------------------ 2003 2002 ------------ ------------- Peso balances.................................................... Ps. 445,143 Ps. 135,893 Foreign currency balances........................................ 319,192 42,557 |
Certain of the Group's other assets are pledged or restricted from use under various agreements. The following assets were restricted at each balance sheet date:
DECEMBER 31, --------------------------- 2003 2002 ------------ ------------- Funds and securities pledged under various arrangements............. Ps. 295,814 Ps. 196,440 Share on equity investments (*) .................................... 51,554 51,552 Deposits in the Argentine Central Bank, frozen under Argentine Central Bank regulations............................................. 4,277 4,732 Loans granted as collateral.......................................... 5,848,789 5,755,706 Certificates of deposits............................................. - 438 Real property and loans pledged as collateral-Banco Galicia Uruguay S.A(**). ............................................................ 821,777 - ------------ ------------- Total................................................................ Ps.7,022,211 Ps. 6,008,868 ============ ============= |
(*) Shares whose transferability is subject to the prior approval of the National or Provincial authorities, as applicable, under the terms of the concession contracts signed.
(**) At the request of creditors of Banco Galicia Uruguay S.A., a restraining order has been issued enjoining this entity from disposing of its real property. Under a security interest agreement signed on July 24, 2003 and registered with the Registry of Movable Property - Pledge Division - Montevideo - Uruguay, on August 5, 2003, the rights to collect debts from all debtors have been pledged as collateral in favor of the holders of transferable time deposit certificates and/or negotiable obligations issued incompliance with the debtor reorganization plan approved. All the Banco Galicia Cayman Limited's (in provisional liquidation) assets will be administered by the liquidators for the benefit of creditors until the reorganization plan is complete.
The Bank has granted a senior pledge on all its shares in Correo Argentino S.A., in favour of the International Finance Corporation, the Inter American Development Bank (the "IDB") and a syndicate of local institutions, as collateral for financing granted to that company. The Argentine Central Bank through Resolution No. 408 dated September 9, 1999 authorized this transaction. Under the sponsorship contract, the Bank is liable for 14,53% of the financial debt held by Correo Argentino S.A. with its financial creditors, in the event of early termination of the concession for any reason or title, including bankruptcy.
On November 19, 2003, the national government rescinded the concession contract awarded to Correo Argentino S.A.. On December 16, 2003, this company was declared bankrupt. This is not a final judgment, so it has been appealed.
At the date of these financial statements, no claims have been received from the financial creditors. The Bank has provided for the amount it estimates it will be required to pay for this contingency.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
On March 25, 2004, the guarantee for Ps. 7,265 provided in favour of the national government as security for compliance with the concession of Correo Argentino S.A. was called. The related claim has been proved as a possible claim in the reorganization proceedings involving Correo Argentino S.A. After the guarantee has been actually paid, the pertinent filing will be made in the records of the case. The claim has been fully covered by an allowance. The Bank will pay the guarantee under the conditions established by the National Communications Commission.
As a shareholder of the concessionaires of the water supply services, Aguas Argentinas S.A., Aguas Provinciales de Santa Fe S.A. and Aguas Cordobesas S.A., Banco Galicia and the other shareholders have committed to provide financial support to those companies if they were unable to fulfill the commitments they have undertaken with international financial bodies.
The IDB requested that the shareholders of Aguas Argentinas S.A. and Aguas Provinciales de Santa Fe S.A. grant loans to those companies. In February 2003, assistance was granted to Aguas Argentinas S.A. in the amount of US$ 598. On November 5, 2003 a loan equivalent to US$ 329 was granted to Aguas Provinciales de Santa Fe S.A., under the terms of the contract signed with the International Finance Corporation.
4. INTEREST-BEARING DEPOSITS WITH OTHER BANKS
At December 31, 2003 and 2002, the overnight foreign bank interest-bearing deposits included in loans amounted to Ps.172,360 and Ps.158,273, respectively.
5. GOVERNMENT AND CORPORATE SECURITIES
The government and corporate securities classification set forth below was determined in accordance with Argentine Banking GAAP.
Government and corporate securities consist of the following at the respective balance sheet dates:
DECEMBER 31, -------------------------------------- 2003 2002 ----------------- ---------------- Government Securities Quoted: Carried at market value Held for trading purposes: Government Bonds............................................. Ps. 14,823 Ps. 3,247 Argentine Treasury Bonds..................................... 3,142 2,129 Argentine Central Bank Bonds................................. 305,500 - Others....................................................... 4,446 2,304 Less: Provision for devaluation.............................. (341) (394) ----------------- ---------------- Total trading securities........................................ Ps. 327,570 Ps. 7,286 ----------------- ---------------- Carried at amortized cost Held for investment purposes Government Bonds............................................. 1,609,982 693,471 Argentine Treasury Bonds..................................... 875,138 979,451 ----------------- ---------------- Total investment securities..................................... Ps. 2,485,120 Ps. 1,672,922 ----------------- ---------------- Unquoted Fiscal Credit Certificate (*) ............................... 78,575 106,336 Government Bonds............................................. 6,949 6,258 Others....................................................... 703 34,084 ----------------- ---------------- Total Unquoted securities....................................... 86,227 146,678 ================= ================ Total government securities..................................... Ps. 2,898,917 Ps. 1,826,886 ================= ================ Corporate Securities Corporate shares ............................................ - 256 Negotiable obligations (quoted).............................. 2,950 9,180 Less: Provision for devaluation ............................. (1,766) (6,480) ----------------- ---------------- Total corporate securities...................................... Ps. 1,184 Ps. 2,956 ================= ================ Total government and corporate securities....................... Ps. 2,900,101 Ps. 1,829,842 ================= ================ |
(*) Government securities collateralized by future tax payments.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
6. LOANS
The lending activities of the Bank consist of the following:
- Loans to the non-financial public sector: represent loans to the federal and provincial governments of Argentina.
- Loans to the financial sector: represent loans to banks and financial entities.
- Loans to the non-financial private sector and residents abroad: include the following types of lending:
Overdrafts - short-term obligations drawn on by customers through overdrafts. Also, prefinancing of exporters and other customers in connection with documents evidencing the future receipt of cash.
Notes - endorsed promissory notes, discounted and purchased bills and factored loans.
Mortgage loans - loans to purchase or improve real estate and collateralized by such real estate or commercial loans secured by real estate.
Pledge loans - loans where collateral is pledged as an integral part of the loan document.
Credit card loans - loans to credit cards holders.
Consumer loans - loans to individuals.
Others - includes mainly placements in foreign banks - short-term deposits in foreign banks.
Under Argentine Banking GAAP, the Group must disclose the composition of the loan portfolio by non-financial public sector, financial sector and non-financial private sector and residents abroad. Additionally, the type of guarantee on non-financial private sector loans, which corresponds to the type of collateral, pledged on the loans (preferred guarantees relate to a recorded right of first lien), is also required to be disclosed. The classification of the loan portfolio in this regard was as follows:
DECEMBER 31, --------------------------------------- 2003 2002 ------------------ ------------------ Non-financial public sector.................................... Ps. 7,800,551 Ps. 7,690,022 Financial sector (Argentine) .................................. 194,692 134,809 Non-financial private sector and residents abroad 4,165,829 4,539,168 - With preferred guarantees................................ 1,228,811 1,514,400 - With other guarantees.................................... 697,781 523,026 - Unsecured................................................ 2,239,237 2,501,742 ------------------ ------------------ 12,161,072 12,363,999 ------------------ ------------------ Allowance for loan losses (See Note 7)......................... (1,177,315) (1,681,836) ------------------ ------------------ Total.......................................................... Ps. 10,983,757 Ps. 10,682,163 ================== ================== |
The Bank also records its loan portfolio by industry segment. The following industry segments comprised the most significant loan concentrations at December 31, 2003 and 2002, respectively:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ----------------- 2003 2002 ----- ----- Financial services industry............................ 2.94% 1.09% Public sector.......................................... 64.14% 62.20% Agriculture and livestock.............................. 3.20% 3.76% Consumer............................................... 10.35% 8.95% |
The Bank granted loans to the Bank's related parties including related officers and consolidated companies. The total loans outstanding at December 31, 2003 amounted Ps.93,364 and the change from December 31, 2002 to December 31, 2003 reflects payments amounting to Ps.33,432 and advances of Ps. 17,046. Furthermore, there were adjustments of CER and foreign exchange difference of Ps.3,103 on the above-mentioned portfolio between those dates.
On July 18, 2003, the Group granted Banco de Galicia (Cayman) Limited a loan for US$1,200.
Such loans were made in the ordinary course of business at normal credit terms, including interest rate and collateral requirements, and, in management's opinion, represent normal credit risk.
7. ALLOWANCE FOR LOAN LOSSES
The activity in the allowance for loan losses for the fiscal years ended December 31, 2003, 2002 and 2001, was as follows:
DECEMBER 31, ---------------------------------------------------- 2003 2002 2001 -------------- --------------- --------------- Balance at beginning of year..................... Ps. 1,681,836 Ps. 1,050,283 Ps. 596,026 Provision charged to income ..................... 217,057 1,599,518 922,009 Prior allowances reverse ........................ (402,049) - (2,019) Inflation and foreign exchange effect............ (52,230) (662,263) - Loans charged off................................ (267,299) (305,702) (465,733) -------------- --------------- --------------- Balance at end of the year....................... Ps. 1,177,315 Ps. 1,681,836 Ps. 1,050,283 ============== =============== =============== |
The inflation effect represents the monetary gain from incurring allowance for loan losses adjusted to constant pesos of February 28, 2003.
Certain loans, principally small loans, are charged directly to income and are not reflected in the activity in the allowance for loan losses. The "Loan loss provision" in the accompanying income statements includes:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ------------------------------------------------- 2003 2002 2001 ------------- ----------------- --------------- Provisions charged to income............................ Ps. 217,057 Ps. 1,599,518 Ps. 922,009 Direct charge-off....................................... 14,020 16,123 42,152 Other receivables losses................................ 52,913 30,249 43,628 Financial leases........................................ 2,438 2,686 725 ------------- ----------------- --------------- Ps. 286,428 Ps. 1,648,576 Ps. 1,008,514 ============= ================= =============== |
Prior year allowances that have been reversed in the amount of Ps. 402,049 are included under the caption "Miscellaneous Income" in the accompanying statement of income.
The Bank has entered into certain troubled debt restructuring agreements with customers. The Bank eliminates any differences between the principal and accrued interest due under the original loan and the new loan amount through a charge against the allowance for loan losses. Loans under such agreements amounted to Ps.92,148, Ps. 44,862 and Ps.47,628 at December 31, 2003, 2002 and 2001, respectively.
8. OTHER RECEIVABLES RESULTING FROM FINANCIAL BROKERAGE
The composition of other receivables from financial brokerage, by type of guarantee, is as follows:
DECEMBER 31, --------------------------------------- 2003 2002 ------------------ ----------------- Preferred guarantees, including deposits with The Argentine Central Bank......................................... Ps. 72,847 Ps. 59,298 Other guarantees................................................... 2,423 10,328 Unsecured (1) (2) ................................................. 6,224,147 9,230,413 Less: Allowance for doubtful accounts............................. (102,008) (44,337) ------------------ ----------------- Ps. 6,197,409 Ps. 9,255,702 ================== ================= |
(1) Includes Ps.4,629,595 and Ps.7,098,505 December 31, 2003 and 2002, respectively, of "Compensation to be received from the National Government".
(2) In July 28, 2003 the Bank received US$465,587 (face value) of BODEN 2012 related to the compensation to be received. Additionally, and in relation to the process for the determination of the compensation amount, on October 30, 2003, the Argentine Central Bank sent a letter to the Bank in which it formulated observations on certain criteria and the computation of certain items that would modify the final amount of the compensation. The Bank has accepted and recognized in its financial statements an adjustment to the original face value of US$ 53,946. (See Note 1)
At December 31, 2003 and 2002 the Company did not have any outstanding forward contracts.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The breakdown of the caption "other" included in the balance sheet was as follows:
DECEMBER 31, --------------------------- 2003 2002 ------------ ------------ Mutual funds ............................................................... Ps. 24,052 Ps. 26,355 Galtrust I ................................................................. 646,143 686,160 Other financial trust participation certificates ........................... 430,703 459,739 Accrued commissions ........................................................ 12,441 14,284 Compensation to be received related to the payment of deposits ............. - 446,756 Others ..................................................................... 382,707 377,418 ------------ ------------ Ps.1,496,046 Ps.2,010,712 ============ ============ |
9. EQUITY INVESTMENTS IN OTHER COMPANIES
The Bank accounted for its investment in Banelco S.A. and Galicia Advent Private Equity Fund Limited under the equity method. The remaining investments have been accounted for under the cost addition dividends method.
Equity investments in other companies held by the Bank consisted of the following at the respective balance sheet dates:
DECEMBER 31, ------------------------------------- 2003 2002 ----------------- ----------------- IN FINANCIAL INSTITUTIONS, SUPPLEMENTARY AND AUTHORIZED ACTIVITIES Banelco S.A........................................... Ps. 5,605 Ps. 10,468 Visa Argentina S.A.................................... 951 951 Mercado de Valores de Buenos Aires S.A................ 6,186 5,923 Banco Latinoamericano de Exportaciones S.A............ 1,542 1,790 Galicia Advent Private Equity Fund Ltd................ - 7,604 Other................................................. 2,260 2,832 ----------------- ----------------- TOTAL FINANCIAL INSTITUTIONS, SUPPLEMENTARY AND AUTHORIZED ACTIVITIES................................. Ps. 16,544 Ps. 29,568 ----------------- ----------------- IN NON-FINANCIAL INSTITUTIONS Aguas Argentinas S.A.................................. Ps. 23,370 Ps. 23,370 Inversora Diamante S.A................................ 12,944 12,944 Inversora Nihuiles S.A................................ 15,750 15,750 Electrigal S.A........................................ 5,455 5,455 Aguas Provinciales de Santa Fe S.A.................... 10,771 10,771 A.E.C. S.A............................................ 6,139 6,139 Aguas Cordobesas S.A.................................. 8,911 8,911 Correo Argentino S.A.................................. 27,460 27,460 Caminos de la Sierra S.A.............................. 4,428 4,428 Tradecom International N.V............................ 9,798 10,669 Other................................................. 3,355 1,630 ----------------- ----------------- TOTAL IN NON-FINANCIAL INSTITUTIONS .................. Ps. 128,381 Ps. 127,527 ----------------- ----------------- ALLOWANCES............................................ Ps. (57,858) Ps. (52,841) ----------------- ----------------- TOTAL EQUITY INVESTMENTS IN OTHER COMPANIES........... Ps. 87,067 Ps. 104,254 ================= ================= |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
10. FIXED ASSETS AND INTANGIBLE ASSETS
The major categories of Grupo Galicia's premises and equipment and accumulated depreciation, as of December 31, 2003 and 2002 were as follows:
DECEMBER 31, ------------------------------------- 2003 2002 ----------------- ----------------- Land and buildings.................................... Ps. 551,755 Ps. 555,336 Furniture and fixtures................................ 125,518 131,649 Machinery and equipment............................... 195,029 200,789 Vehicles.............................................. 440 730 Others................................................ 6,186 7,624 Accumulated depreciation.............................. (361,396) (325,653) --------------- ----------------- Ps. 517,532 Ps. 570,475 =============== ================= |
Depreciation expenses of the years ended December 31, 2003, 2002 and 2001, was Ps.50,542, Ps.63,357 and Ps. 61,660, respectively.
The major categories of intangible assets as of December 31, 2003 and 2002 were as follows:
DECEMBER 31, ---------------------------------- 2003 2002 -------------- ----------------- Goodwill, net of accumulated amortization of Ps.135,718 and Ps.108,837 respectively............................................................. Ps. 139,681 Ps. 170,384 Organization and development expenses, net of accumulated amortization of Ps.198,267 and Ps.236,222 respectively.................. 100,356 151,564 Legal actions related to the payment of deposits, net of accumulated amortization of Ps.77,880 (see Note 2.9)..................... 487,020 - -------------- ----------------- Ps. 727,057 Ps. 321,948 ============== ================= |
Total amortization expenses of the years ended December 31, 2003, 2002 and 2001, was Ps.163,390, Ps.168,622 and Ps.110,927, respectively.
Organization and development expenses included software and the related implementation services purchased from third parties, with a net book value of Ps.86,055 and Ps.127,816 at December 31, 2003 and 2002, respectively.
The table below shows the components of goodwill by type of activity for the periods presented.
DECEMBER 31, ---------------------------------- 2003 2002 ---------------- ---------------- Investment................................................. Ps. 9,153 Ps. 16,992 Banking.................................................... 81,740 94,559 Regional Credit Card issuing companies..................... 48,788 58,833 ---------------- ---------------- Ps. 139,681 Ps. 170,384 ================ ================ |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
11. MISCELLANEOUS ASSETS
Miscellaneous assets consisted of the following as of December 31, 2003 and 2002:
DECEMBER 31, ---------------------------------- 2003 2002 ---------------- ---------------- Construction in progress................................ Ps. 66,831 Ps. 56,428 Deposits on fixed asset purchases....................... 1,284 1,876 Stationery and supplies................................. 2,254 4,025 Real estates properties held for sale................... 28,493 57,664 Assets acquired through foreclosures.................... - 726 Others.................................................. 59,236 64,043 ---------------- ---------------- Ps. 158,098 Ps. 184,762 ================ ================ |
12. OTHER ALLOWANCES AND RESERVES
Allowances on other assets and reserves for contingencies were as follows:
DECEMBER 31, -------------------------------------- 2003 2002 ------------------ ------------------ Allowances against asset accounts: Government and Corporate securities.................................. Ps. 2,107 Ps. 6,874 Other receivables resulting from financial brokerage, for collection risk (a) ........................................................... 102,008 44,337 Assets under financial leases (a).................................... 4,806 2,460 Equity investments in other companies (b) .......................... 57,858 52,841 Miscellaneous receivables, for collection risk (a) .................. 53,877 29,375 Reserves for contingencies: For severance payments (c)........................................... 1,413 11,074 Litigations (d) .................................................... 19,329 25,030 Related to commitments undertaken with public services companies (e)....................................................... 92,000 92,802 Claims related to pesification disputes and other contingencies (f).. 235,525 144,702 Sundry liabilities arising from credit card activities (g) .......... 20,542 16,388 Other commitments (h) ............................................... 46,066 44,563 ------------------ ------------------ Total reserves for contingencies..................................... Ps. 414,875 Ps. 334,559 ================== ================== |
(a) Based upon an assessment of debtors' performance, economic and financial situation and the guarantees collateralizing their respective transactions.
(b) Includes the estimated losses due to the excess of the cost plus dividend method over the equity method in non-majority owned equity investments.
(c) Estimated amounts payable under labor lawsuits filed against the Bank relating to terminated employees.
(d) Litigation arising from different types of claims from customers (e.g., claims for thefts from safe deposit boxes, the cashing of checks that have been fraudulently altered, discrepancies in deposits and payments services that the Bank renders, etc).
(e) See note 3 - Restricted Assets.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
(f) Includes allowances for Ps.180,000 to cover the probable effect from an unfavorable resolution of matters challenged by the Argentine Central Bank related to the amounts due for compensatory and hedge bonds, which are still being discussed..
(g) Reserves for rewards to be given under a credit card reward program, for a guarantee of credit card receivables and for the estimated liability for the insurance of the payment of credit card balances in the event of the death of the credit card holder.
(h) Represents the contingent commitments related to clients in categories other than the "normal" categories under Argentine Banking GAAP.
13. OTHER LIABILITIES RESULTING FROM FINANCIAL BROKERAGE- ARGENTINE CENTRAL BANK
The Bank borrows funds under various credit facilities obtained from the Argentine Central Bank for specific purposes as follows:
DECEMBER 31, ----------------------------------- 2003 2002 ---------------- ---------------- DESCRIPTION Long-term liabilities: Advances for the acquisition of national government bonds in U.S. Dollars (*)....................................................... Ps. 2,442,849 Ps. 2,445,379 Argentine Central Bank's liquidity loans (**)...................... 5,579,978 783,704 Other Argentine Central Bank obligations........................... - 1,834 ---------------- ---------------- Total long-term liabilities........................................... Ps. 8,022,827 Ps. 3,230,917 Short-term liabilities: Argentine Central Bank's liquidity loans (**)...................... - 4,666,176 Other Central Bank Obligations..................................... 777 15 ---------------- ---------------- Total short-term liabilities.......................................... Ps. 777 Ps. 4,666,191 ---------------- ---------------- Accrued interest...................................................... 109,298 208,955 ---------------- ---------------- Ps. 8,132,902 Ps. 8,106,063 ================ ================ |
(*) Advance for the hedge bond accrued interest was Ps.93,297 and Ps.44,485 at December 31, 2003 and 2002, respectively. The maturity related to this advance will be determined when the hedge bond is received.
(**) As of December 31, 2002 the Argentine Central Bank liquidity loans were considered short-term liabilities, as they were renewed monthly. Decree No. 739/02 established the methodology to pay the advances received from the Argentine Central Bank, and pursuant to Decree No. 1262/03, the amortization shall be made in the same number of installments of the assets granted as collateral for the rediscounts received, with a maximum of 120 installments. For that reason, as of December 31, 2003, Argentine Central Bank liquidity loans are considered as a long-term liability. The financial institutions that wish to avail themselves of this special assistance amortization system must have normalized their foreign debt situation before December 5, 2003, under the terms of section 1 of Communique "A" 3940.
As of December 31, 2003, maturities of the Argentine Central Bank's liquidity loans for each of the following six fiscal years and thereafter are as follows:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
2004............................................................ Ps. 255,000 2005............................................................ 340,201 2006............................................................ 383,359 2007............................................................ 431,984 2008............................................................ 486,773 2009............................................................ 2,235,046 Thereafter....................................................... 1,447,615 ---------------------- Ps. 5,579,978 ====================== |
14. OTHER LIABILITIES RESULTING FROM FINANCIAL BROKERAGE- BANKS AND INTERNATIONAL ENTITIES, AND LOANS FROM DOMESTIC FINANCIAL INSTITUTIONS.
The Bank also borrows funds under different credit arrangements from local and foreign banks and international lending agencies as follows:
DECEMBER 31, ------------------------------------ 2003 2002 ----------------- ----------------- DESCRIPTION BANK AND INTERNATIONAL ENTITIES Long term liabilities: Compania Interamericana de Inversiones........... Ps. 203,844 Ps. 235,768 International Finance Corporation (I.F.C.)....... 909,230 1,051,619 Nederlands Financierings Maatschappij Voor Ontwikkeling Slande N.V (F.M.O.) ............... 56,588 65,450 Other foreign banks.............................. 334,062 283,066 ----------------- ----------------- Total long-term liabilities.......... Ps. 1,503,724 Ps. 1,635,903 Short-term liabilities: Other lines of credit from foreign banks (1)..... 1,231,756 1,548,806 ----------------- ----------------- TOTAL BANK AND INTERNATIONAL ENTITIES................... Ps. 2,735,480 Ps. 3,184,709 ----------------- ----------------- DOMESTIC AND FINANCIAL INSTITUTIONS Long term liabilities: BICE (Banco de inversion y Comercio Exterior).... 106,404 138,341 Other lines of domestic banks.................... 307 14,911 ----------------- ----------------- Total long term liabilities ......... Ps. 106,711 Ps. 153,252 Short-term liabilities: Other lines of credit from domestic banks (1) .................................. 25,052 48,019 ----------------- ----------------- TOTAL DOMESTIC AND FINANCIAL INSTITUTIONS............... Ps. 131,763 Ps. 201,271 ----------------- ----------------- TOTAL................................................... Ps. 2,867,243 Ps. 3,385,980 ================= ================= |
(1) Short term debt in default.
Accrued interest on the above liabilities was Ps.282,746, and Ps.133,397 at December 31, 2003 and 2002, respectively, which are included in "Other" under the caption "Other Liabilities Resulting from Financial Brokerage" in the accompanying balance sheet.
Loans from Banco de Inversion y Comercio Exterior (BICE) for financing investment projects, increasing the export capacity and financing the Global Multisectorial Credit Program carry interest at floating rates for approximately 5.17% for loans in dollars with maturity of 4 years and CER + 4% for borrowing in pesos, with maturities ranging between 1 and 10 years.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The remaining long term debt with a balance of Ps. 1,503.7 million along with short term debt amounting to Ps. 1,231.8 million at December 31, 2003 have been restructured by the Bank and its creditors on May 18, 2004.
As of December 31, 2003, maturities of the above long-term loans for each of the following five fiscal years and thereafter were as follows:
Callable (1)....................................................... Ps. 1,503,724 2004.............................................................. 40,761 2005.............................................................. 27,520 2006.............................................................. 18,586 2007.............................................................. 13,628 2008.............................................................. 4,053 Thereafter......................................................... 2,163 --------------- Ps. 1,610,435 =============== |
(1) This amount was subject to a restructuring process.
As of December 31, 2003 the Bank did not have any unused lines of credit.
15. OTHER LIABILITIES RESULTING FROM FINANCIAL BROKERAGE - NEGOTIABLE OBLIGATIONS
The Board of Directors is authorized to determine all of the conditions of each issuance of negotiable obligations, including timing, currency, price, manner and payment terms. The amounts outstanding and the terms corresponding to outstanding negotiable obligations at the dates indicated were as follows:
ANNUAL DECEMBER 31, INTEREST ------------------------------- MATURITY RATE 2003 2002 -------- -------- -------------- ------------- LONG-TERM LIABILITIES: 5th Series Floating Rate Notes Due 2005 2005 4.00% Ps. 31,213 Ps. 36,066 (Semi-annual interest, principal payable every six months) ........................... 4th Series Floating Rate Notes Due 2005 2005 4.00% 130,077 150,299 (Semi-annual interest, principal payable every six months) ........................... 9% Notes Due 2003 2003 9.00% 565,987 677,859 (Semi-annual interest, principal payable at maturity) ..................................... Step Up Floating Rate Notes Due 2002 2002 3.88% 413,846 508,848 (Semi-annual interest, principal payable every year beginning in August, 2005) ......... 6th Series 7.875% Notes Due 2007 (*) 2007 7.88% 213,038 246,402 (Semi-annual interest, principal payable every year beginning in August, 2005) ......... 7th Series Floating Rate Notes Due 2007 (*) 2007 5.15% 126,591 146,415 (Semi-annual interest, principal payable at maturity) ..................................... Banco Galicia Uruguay S.A. (issued to Various 2.00% 902,686 1,569,412 restructure deposits) ......................... -------------- ------------- Total long-term liabilities.................... Ps. 2,383,438 Ps. 3,335,301 ============== ============= |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
SHORT-TERM LIABILITIES: Tarjetas del Mar (Interest fixed, principal payable at maturity)............. ...................... 2002 14.92% Ps. 494(1) Ps. 21,031 Tarjeta Naranja (Interest fixed, principal payable at maturity)............. ...................... 2002 16.46% 2,709(2) 100,114 Tarjetas Cuyanas (Interest fixed, principal payable at maturity)............. ...................... 2002 15.96% 6,268(3) 7,539 Tarjeta Comfiar 9th Series (Interest fixed, principal payable at maturity)............. ...................... 2002 16.22% - 554 -------------- ------------- Total short-term liabilities................ 9,471 129,238 -------------- ------------- Ps. 2,392,909 Ps. 3,464,539 ============== ============= |
(*) Issued in connection with the New York Branch foreign debt restructuring.
(1) Includes 9th Series with an annual interest rate of 14.92%
(2) Includes 9th Series and 10th Series with an annual interest rate of 16.77%, 14.92%, respectively.
(3) Includes 13th Series with an annual interest rate of 15.96%.
Short-term negotiable obligations are in the process of being restructured.
Interest and principal on all of the above debt securities are payable in U.S. dollars.
Accrued interest on the above liabilities for Ps. 172,611 and Ps.116,929 at December 31, 2003 and 2002, respectively, was included in "Other" under the caption "Other Liabilities Resulting from Financial Brokerage " in the accompanying balance sheet.
Long-term maturities correspond to negotiable obligations at December 31, 2003 are as follows:
Callable(1)..................... 1,141,123 2004............................ 123,066 2005............................ 283,244 2006............................ 204,053 2007............................ 204,053 2008............................ 93,776 2009............................ 108,441 2010............................ 108,441 2011............................ 117,241 ------------- Total........................... Ps. 2,383,438 ============= |
(1) The Ps. 1,141,123 corresponding to the Fourth and Fifth series and Sixth series were subject to a restructuring process as of December 31, 2003.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
16. DIRECTORS' AND SYNDICS' FEES
The breakdown of the caption "Directors' and Syndics' Fees" in the income statement is as follows:
DECEMBER 31, ------------------------------------- 2003 2002 2001 ----------- ---------- --------- GFG directors' fees............................... Ps. - Ps. 77 Ps. 132 GFG syndics' fees................................. 123 77 132 Banco Galicia directors' statutory fees........... - - 23,339 Banco Galicia directors' administrative fees...... 200 1,984 5,672 Banco Galicia syndics' fees....................... 410 390 487 Subsidiary companies directors' and syndics' fees.............................................. 1,184 708 5,665 ----------- ---------- --------- Ps. 1,917 Ps. 3,236 Ps.35,427 =========== ========== ========= |
17. CONTRIBUTIONS TO THE SOCIAL SERVICES INSTITUTE FOR BANKING EMPLOYEES
Effective July 1, 1996, Decree No. 263/96 of the National Executive Power reduced to 1% and effective July 1, 1997 Decree No. 915/96 eliminated the 2% contribution on interest and fees that banks previously had to make to the ISSB, pursuant to article 17 of Law No. 19,322. Banco de Galicia y Buenos Aires S.A. has determined the aforementioned contributions in accordance with these regulations. The bank employee union (the "Banking Association") brought legal action calling for a stay against the National Executive Power - Ministry of Public Works and Services, with a view to having article 1 of Decree 263/96 declared null and unconstitutional, and got a favorable ruling from the Federal Court dealing with Administrative Litigation Matters, Panel I. The National Supreme Court of Justice declared out of order an extraordinary appeal made by the National Executive Branch on November 4, 1997. Therefore, the ruling in favor of the Banking Association became firm.
Although in the opinion of the legal counsel of the financial institutions this ruling is not opposable against the banks because they were not a party to the aforementioned legal action, the juridical uncertainty still subsists. In April 1998, the Bank Employees' Health Care System (OSBA) made a final claim, which was refuted from the administrative angle before OSBA, the Federal Public Revenue Authority (AFIP) and the National Social Security Administration.
Furthermore, the Banking Association brought legal action calling for a stay before the First Instance No. 5 Federal Social Security Court, and the request for a precautionary measure was granted ordering the OSBA not to bring legal actions for tax collection or make verifications on the grounds of article 17, clause f) of Law No. 19,322 until a final judgment is issued about whether this supposed claim is applicable. This latter measure is firm and was confirmed by the National Social Security Court (Panel II). In this connection, OSBA filed an extraordinary appeal with the National Supreme Court of Justice, which was dismissed by the Court on November 21, 2000.
Furthermore, OSBA has brought a legal action against all institutions in the financial system, before the Federal Court dealing with Administrative Litigation Matters, and the complaint has already been answered. The trial of the case has been ordered.
Considering that a risk exists as to the interpretations that courts may make of this dispute, the
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Bank has agreed to a settlement regarding those disputed or doubtful rights, without this involving any recognition of rights. This settlement has been approved by the Federal Court of First Instance on Administrative Litigation Matters No. 4, in the case identified above, which will reduce the potential risk to which the Bank would be exposed if an unfavorable resolution were to be issued.
18. BALANCES IN FOREIGN CURRENCY
The balances of assets and liabilities denominated in foreign currencies (principally in U.S. dollars) are as follows:
DECEMBER 31, -------------------------------------- 2003 2002 ------------------ ------------------ ASSETS: Cash and due from banks............................................ Ps. 379,903 Ps. 285,133 Government and corporate securities................................ 2,505,881 1,682,920 Loans.............................................................. 702,501 973,397 Other receivables resulting from financial brokerage............... 4,716,234 7,335,513 Equity investments in other companies.............................. 3,047 21,675 Miscellaneous receivables.......................................... 15,760 23,747 Bank premises and equipment........................................ 12,770 16,140 Intangible assets.................................................. 3 1,994 Miscellaneous assets............................................... 2,014 2,395 In process items................................................... 1,331 7,404 ------------------ ------------------ TOTAL ................................................................ Ps. 8,339,444 Ps. 10,350,318 ================== ================== LIABILITIES: Deposits........................................................... Ps. 1,656,541 Ps. 2,087,972 Other liabilities resulting from financial brokerage............... 6,217,182 7,680,975 Sundry liabilities................................................. 18,278 20,060 In process items................................................... - 1,462 ------------------ ------------------ TOTAL................................................................. Ps. 7,892,001 Ps. 9,790,469 ================== ================== |
19. TRANSACTIONS WITH RELATED PARTIES
Grupo Galicia entered into certain transactions with controlled and equity-method subsidiaries during the fiscal years ended December 31, 2003, 2002 and 2001, with the following revenues and expenses:
DECEMBER 31, -------------------------------------------- 2003 2002 2001 ---------- ----------- ------------ Revenues recognized.................................. Ps. 2,974 Ps. 14,513 Ps. 312,041 Expenses incurred.................................... 797 944 157,733 |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
20. BREAKDOWN OF CAPTIONS INCLUDED IN THE INCOME STATEMENT
DECEMBER 31, ---------------------------------------------- 2003 2002 2001 ------------ ------------ ------------ FINANCIAL INCOME Interest income resulting from financial brokerage: Interest on structured notes................... - - 81,620 Interest on purchased certificates of deposits ................................... 11,839 38,748 249 Compensatory Bond.............................. 70,340 132,691 - Additional interest on current accounts and special accounts with the Argentine Central Bank........................................... 4,294 20,515 - Other.......................................... 12,190 36,024 27,417 ------------ ------------ ------------ Ps. 98,663 Ps. 227,978 Ps. 109,286 ============ ============ ============ OTHER Premiums on reverse repos transactions......... - - 48,851 Difference in quotation of gold and foreign currency transactions.......................... 12,613 380,479 46,716 Premiums on foreign currency transactions...... - 2,420 63,727 Interest on pre-export and export financing.... 7,580 22,988 - Other.......................................... 3,464 6,938 7,879 ------------ ------------ ------------ Ps. 23,657 Ps. 412,825 Ps. 167,173 ============ ============ ============ FINANCIAL EXPENSES Interest expense resulting from financial brokerage: Discounts on negotiable obligations............ 672 4,152 44,499 Interest on negotiable obligations............. 139,595 234,177 157,074 Interest on other liabilities resulting from financial brokerage from other banks and international entities......................... 200,300 414,710 232,274 ------------ ------------ ------------ Ps. 340,567 Ps. 653,039 Ps. 433,847 ============ ============ ============ OTHER INTEREST: Interest on Central Bank loans ................ 15 49,676 3,168 Interests on liquidity assistance loans ....... 336,305 1,377,069 10,707 CER adjustment on Central Bank advances ....... 50,442 46,973 - Other.......................................... 22,002 131,656 71,723 ------------ ------------ ------------ Ps. 408,764 Ps.1,605,374 Ps. 85,598 ============ ============ ============ OTHER: Contributions to the deposit insurance system.. 12,715 20,398 34,443 Premiums on repo transactions.................. - 141,478 78,785 Contributions and taxes on financial income.... 18,939 30,046 58,596 Difference in quotation of gold and foreign currency....................................... 111,182 - - Valuation adjustment to Public Sector Loans ... 198,088 - - Charge for impairment of loans................. 10,511 28,325 - Other.......................................... - 2,796 6,251 ------------ ------------ ------------ Ps. 351,435 Ps. 223,043 Ps. 178,075 ============ ============ ============ |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ---------------------------------------------- 2003 2002 2001 ------------ ------------ ------------ INCOME FROM SERVICES Others Commissions on credit cards...................... 126,441 142,258 300,244 Safety rental.................................... 5,111 5,079 7,388 Other............................................ 38,618 61,994 154,410 ------------ ------------ ------------ Ps. 170,170 Ps. 209,331 Ps. 462,042 ============ ============ ============ EXPENSES FOR SERVICES Others Gross revenue taxes.............................. Ps. 13,340 Ps. 17,794 Ps. 41,954 Linked with credit cards......................... 17,275 14,029 32,102 Other............................................ 4,506 8,460 35,339 ------------ ------------ ------------ Ps. 35,121 Ps. 40,283 Ps. 109,395 ============ ============ ============ ADMINISTRATIVE EXPENSES Other operating expenses Rentals.......................................... 19,577 36,532 62,499 Electricity and communications................... 27,234 42,507 70,088 Amortization of organization and development expenses......................................... 59,547 85,025 80,722 Depreciation of bank premises and equipment...... 50,542 63,357 61,660 Maintenance and repair expenses.................. 22,724 26,882 45,239 Other operating expenses......................... 24,975 35,901 53,030 ------------ ------------ ------------ Ps. 204,599 Ps. 290,204 Ps. 373,238 ============ ============ ============ MISCELLANEOUS INCOME Interest on miscellaneous receivables............ 6,922 23,377 298,138 Premiums and commissions on insurance business... 44,422 183,743 171,039 Reversal of income tax provision................. - - 103,842 Other............................................ 46,461 38,780 30,553 ------------ ------------ ------------ Ps. 97,805 Ps. 245,900 Ps. 603,572 ============ ============ ============ MISCELLANEOUS LOSSES Claims........................................... 775 3,761 10,539 Amortization of difference re.court resolutions.. 77,880 - - Amortization of goodwill......................... 25,963 83,598 30,205 Commissions and expenses on insurance business... 52,367 96,321 148,253 Other............................................ 76,208 4,207 35,950 ------------ ------------ ------------ Ps. 233,193 Ps. 187,887 Ps. 224,947 ============ ============ ============ |
21. INCOME TAXES
The income tax amounts estimated for the fiscal years ended December 31, 2003, 2002 and 2001, amounted to Ps.590, Ps.66,421 and Ps.159,052, respectively. The statutory income tax rate at December 31, 2003, 2002 and 2001 was 35%. At December 31, 2003 the Group had tax loss carryforwards in the approximate amount of Ps.3,485,806 that may reduce future year's taxable income for income tax purposes. Such tax loss carryforwards expire over in the following ten years.
At December 31, 2003, PMIT available to credit future income tax amount to Ps.50,467. Such PMIT expire over the following ten years.
22. SHAREHOLDERS' EQUITY AND RESTRICTIONS IMPOSED ON THE DISTRIBUTION OF PROFITS
The distribution of retained earnings in the form of dividends is governed by the Commercial Companies Law and Resolution No. 290/97 of the CNV. These laws oblige Grupo Galicia to
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
transfer 5% of its net income to a legal reserve until the reserve reaches on amount equal to 20% of the company's capital stock. Argentine Central Bank rules require 20% of the profits shown in the income statement plus (less) prior year adjustments to be allocated to a legal reserve. This proportion applies regardless of the ratio of the legal reserve to the capital stock.
Furthermore, as a result of the facts described in Note 1, through Resolution No. 81 dated February 8, 2002, the Argentine Central Bank established that for as long as the financial assistance owed to the Argentine Central Bank is outstanding, the Bank may not distribute dividends or any other return on capital in cash, remit profits or make payments for fees, interests or compensation related to results.
Furthermore, Argentine Central Bank Communique "A" 3574 provided for the suspension of the distribution of profits until the criteria for valuing the shareholders' equity of the Bank are defined, which include the known effects of Law No. 25,561 and supplementary provisions.
Communique "A" 3785 provides that financial institutions which receive in compensation national government bonds within the framework of Sections 28 and 29 of Decree No. 905/02, may record them at their technical value; while using this procedure, financial institutions may not distribute cash dividends, except for the amount of profits in excess of the difference between the carrying value and the market value of those bonds, net of the pertinent appropriation to legal reserve and to the reserve established by the bank's by-laws, and the same treatment will be given to those institutions which decide to exchange the compensating bonds for promissory notes issued by the national government.
The "Adjustments to Shareholders' Equity" caption in the statement of changes in shareholders' equity represents:
- the balance of the 1981 technical valuation of fixed assets of the Bank and its equity investees, available to absorb losses on the disposal or devaluation of such fixed assets;
- the inflation adjustment related to capital stock at the beginning of each period, adjusted to constant pesos of August 31, 1995. Capital stock maintains its nominal (par) value at each balance sheet date;
- the inflation adjustment related to the increase in capital stock from stock distributions (adjustments to capital). The adjustment represents the effect of inflation from the stock distribution date to the end of each period, and is restated in constant pesos as of August, 31, 1995;
- the inflation adjustment related to capital stock at the beginning of each period, adjusted to constant pesos of February 28, 2003. Capital stock maintains its nominal (par) value at each balance sheet date; and
- the inflation adjustment related to the increase in capital stock from stock distributions (adjustments to capital). The adjustment represents the effect of inflation from the stock distribution date to the end of each period, and is restated to constant pesos as of February 28, 2003.
The composition of "Adjustments to Shareholders' Equity" is as follows:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER DECEMBER 2003 2002 ------------ ------------ Inflation to: - capital stock 1,314,673 1,314,673 - paid- in- capital 95,375 95,375 --------- --------- 1,410,048 1,410,048 |
Until December 2001, the Bank has annually distributed shares of common stock to its then-current shareholders in proportion to their holdings. Such distributions of stock are characterized under Argentine law as capitalization of retained earnings and capitalization of adjustments to capital. The shareholders must approve such distributions of stock.
23. MINIMUM CAPITAL REQUIREMENTS
The capital adequacy of Grupo Galicia is not under the supervision of the Argentine Central Bank. Grupo Galicia has a minimum capital requirement from the Commercial Companies Law of Ps.12.
Under the Argentine Central Bank regulations, the Bank is required to maintain minimum levels of capital, as defined ("minimum capital"). The minimum capital, is based upon risk-weighted assets, and the balances of Bank premises and equipment, intangible assets and unquoted equity investments. The required minimum capital and the Bank's capital calculated under Argentine Central Bank requirements were as follows:
SHAREHOLDERS' EQUITY AS MINIMUM CAPITAL SHAREHOLDERS' EQUITY A % OF MINIMUM CAPITAL ------------------- -------------------- ---------------------- December 31, 2003............. Ps. - Ps. - - December 31, 2002 ............ - - - December 31, 2001 ............ 1,879,896 2,675,371 142.31 |
As of December 31, 2003 and 2002, the Argentine Central Bank had suspended the regulation requiring minimum levels of capital.
As called for by Argentine Central Bank Communique "A" 3986, effective January 2004, financial institutions were to comply with regulations on minimum capital which had been suspended until that time. That Communique provided that effective January 2004, an "alpha 1 " coefficient was to be applied to temporarily reduce the minimum capital requirement to cover credit risk attaching to holdings in investment accounts and financing granted to the national non-financial public sector until May 31, 2003. It also provided for the application of an "alpha 2" coefficient effective January 2004, to temporarily reduce the minimum capital requirement to cover interest rate risk.
A non-material breach of regulations on spreading and rating of credit risk was detected, which would have resulted in a higher minimum capital ratio being required to cover credit risk had the Argentine Central Bank not suspended the regulation requiring minimum levels of capital.
As of January, 2004 the Bank was in compliance with the regulation requiring minimum levels of capital.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
24. EARNINGS PER SHARE
Stock distributions (see note 22 and 32) were declared to shareholders in 2001. Accordingly, all common share data include the effects of such distributions. Earnings per share are based upon the weighted average of common shares outstanding in the amount of 1,092,407 shares of Grupo Galicia common stock for the years ended December 31, 2003, 2002 and 2001 of Grupo Galicia.
Earnings per share for the 3 years ended December 31, 2003, 2002 and 2001 are
(0.199), (1.347) and 0.242, respectively.
At December 31, 2003, 2002 and 2001, there were no convertible subordinated negotiable obligations outstanding and therefore for the purposes of calculating earnings per share Grupo Galicia had a simple capital structure.
25. CONTRIBUTION TO THE DEPOSIT INSURANCE SYSTEM
Pursuant to its Communique "A" 2337, the Argentine Central Bank established rules for applying the deposit insurance system and the way of settling the related contributions. Furthermore, the National Executive Branch through Decree No.1127/98 dated September 24, 1998, extended this insurance system to cover demand deposits and time deposits of up to Ps.30 stated either in pesos or in foreign currency. This system does not cover the deposits made by financial institutions (including the time deposit certificates acquired through a secondary transaction), the deposits made by persons related to the Bank, either directly or indirectly, deposits of securities, acceptances or guarantees and those set up after July 1, 1995 at an interest rate exceeding the one that the Argentine Central Bank regularly establishes based on a daily survey conducted by it. Nor does this system cover deposits whose ownership has been acquired through endorsement and placement, which offer incentives in addition to the interest rate. The system has been implemented through the creation of the Deposit Insurance Fund, which is managed by a company called Seguros de Depositos S.A. (SEDESA). The shareholders of SEDESA are the Argentine Central Bank and the financial institutions in the proportion determined for each one by the Argentine Central Bank based on the contributions made to said fund.
Through Communique "A" 3068, the Argentine Central Bank reduced the normal contribution to the Deposit Insurance Fund, which amounted to 0.03%, to 0.015%, provided that the financial institution arranges with SEDESA 36-month loans, to be earmarked for the Deposit Insurance Fund. Interest on these loans has been determined on the basis of the yield obtained by the aforesaid Fund on its placements.
As of September 2000, Argentine Central Bank Communique "A" 3153 eliminated the above-mentioned loan and the normal contribution of 0.015% on items comprised in the calculation basis remained in force. As of December 2001, Argentine Central Bank Communique "A" 3358 resolved to increase the contribution to 0.03%.
The Bank recognized contributions amounting to Ps.12,715, Ps.20,398 and Ps.34,443 for the fiscal years ended December 31, 2003, 2002 and 2001, respectively, under the account captioned "Financial Expenses - Contribution to the Deposit Insurance System".
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
26. EMPLOYEE BENEFIT PLANS
Neither the Bank nor its subsidiaries maintain pension plans for their personnel. The Bank is obligated to pay employer contributions to the National Pension Plan System, determined on the basis of the total monthly payroll.
These expenses aggregated Ps.16,152, Ps.17,021 and Ps.37,578 for the fiscal years ended December 31, 2003, 2002 and 2001, respectively.
On November 19, 2001, the beneficiaries of the Galicia 2004 Trust were designated, as stipulated in the "Framework Trust Agreement" signed on November 4, 1999, to implement an incentive program in favor of certain executives of the Bank and its controlled or related companies. Of the total amount of Ps.4,000 transferred to the trustee by the Galicia 2004 Trust, which were used for the purchase of shares of Grupo Financiero Galicia S.A., 855,442 shares and 189,116 ADSs were acquired. The amount transferred has been expensed as incurred.
Shares and ADS of 855,442 and 28,046.60 respectively, were awarded to certain executives. 3,400 ADSs that were not awarded returned to the trustor. The remaining balance of 157,669.40 ADSs was used to create the Galicia 2005 Trust.
On June 15,2003, the Galicia 2004 Trust was terminated in advance, the shares and ADSs having been delivered to the beneficiaries designated.
27. INCOME STATEMENTS AND BALANCE SHEETS
The presentation of financial statements according to the Argentine Central Bank rules differs significantly from the format required by the Securities and Exchange Commission under Rules 210.9 to 210.9-07 of Regulation S-X (Article 9). The income statements presented below discloses the categories required by Article 9:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, ----------------------------------------------- 2003 2002 2001 ----------- ------------- ------------- INTEREST INCOME: Interest and fees on loans (*) ...................... Ps. 968,086 Ps. 4,419,516 Ps. 3,212,789 Interest and dividends on investment securities: Tax-exempt........................................... 32,504 (232) 211,852 Interest on interest bearing deposits with other banks ......................................... 68 2,370 63,735 Interest on other receivables from financial brokerage ........................................... 93,060 598,868 213,156 Interest on securities and foreign exchange purchased under agreements to resell ................ - - 48,851 Government securities and other trading gains, net .. 243,850 298,868 65,668 ----------- ------------- ------------- Total interest income ............................... 1,337,568 5,319,390 3,816,051 ----------- ------------- ------------- INTEREST EXPENSE Interest on deposits ................................ 263,760 1,361,237 1,479,498 Interest on securities sold under agreements to repurchase ....................................... - 141,478 79,116 Interest on short-term liabilities from financial intermediation ............................ 417,644 1,461,699 179,523 Interest on long-term liabilities from financial intermediation ............................ 468,658 1,361,668 287,236 Monetary Loss from financial intermediation ......... 14,506 1,437,745 - ----------- ------------- ------------- Total interest expense .............................. 1,164,568 5,763,827 2,025,373 ----------- ------------- ------------- Net interest income /(expense) ...................... 173,000 (444,437) 1,790,678 ----------- ------------- ------------- Allowance for loan losses Net ....................... (168,277) 1,615,246 938,616 ----------- ------------- ------------- Net interest income /(expense) after provision for loan losses ..................................... 341,277 (2,059,683) 852,062 ----------- ------------- ------------- |
(*) Includes adjustments of the consumer price index
DECEMBER 31, -------------------------------------------------- 2003 2002 2001 -------------- ---------------- -------------- NON-INTEREST INCOME: Service charges on deposit accounts.......... Ps. 68,048 Ps. 91,257 Ps. 182,300 Credit card service charges and fees......... 194,483 190,497 300,136 Other commissions............................ 206,327 240,418 621,145 Income from equity in other companies........ - - 34,958 Premiums and commissions on insurance business..................................... 44,422 183,743 171,039 Foreign currency position compensation....... - 1,370,034 - Other........................................ 206,165 362,589 269,794 Monetary gain (loss) on other transactions... (3,517) (163,090) - -------------- ---------------- -------------- Total non-interest income.................... Ps. 715,928 Ps. 2,275,448 Ps. 1,579,372 -------------- ---------------- -------------- NON-INTEREST EXPENSE: Commissions.................................. 54,063 117,764 172,139 Salaries and social security charges......... 198,288 436,324 597,357 Fees and external administrative services.... 63,077 84,629 131,956 Depreciation of bank premises and equipment.. 50,542 63,357 61,660 Personnel services........................... 15,665 22,573 54,598 Rentals...................................... 19,577 36,532 62,499 Electricity and communications............... 27,234 42,507 70,088 Advertising and publicity.................... 20,020 15,369 54,531 Taxes........................................ 74,825 126,099 219,967 Amortization of organization and development expenses......................... 59,547 85,025 80,722 Loss from equity in other companies.......... 22,570 51,971 - Maintenance and repair expenses.............. 22,724 26,882 45,239 Minority interest............................ 9,586 (269,572) 22,159 Commissions and expenses on insurance business..................................... 59,725 103,391 148,253 Amortization of "Amparo claims".............. 77,880 - - Other Provisions and reserves................ 308,081 441,949 39,226 Other........................................ 190,354 257,056 247,448 Monetary result from operating expenses...... (84) (21,001) - -------------- ---------------- -------------- Total non-interest expense................... Ps. 1,273,674 Ps. 1,620,855 Ps. 2,007,842 -------------- ---------------- -------------- Income before tax expense.................... (216,469) (1,405,090) 423,592 Income tax expense........................... (590) (66,421) (159,052) -------------- ---------------- -------------- Net income .................................. Ps. (217,059) Ps. (1,471,511) Ps. 264,540 ============== ================ ============== |
Certain categories of income and expense maintained by the Bank have been presented in the Article 9 income statement in a manner which warrants further discussion as follows:
- Income from trading activities, net: until late 2001, the Bank actively traded its government securities portfolio and does not distinguish in its accounting records between interest and realized and unrealized gains and losses on such securities. This caption is included as a component of interest income.
- Provision for loan losses: this balance includes direct charge offs plus the allowance for losses on loans and other receivable charged to the allowance for loan losses, less loan loss allowances reversed and bad debts recovered.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Argentine Central Bank rules also require certain classifications of assets and liabilities which are different from those required by Article 9. The following balance sheet presents Grupo Galicia's balance sheet at December 31, 2003 and 2002 as if they had followed Article 9 balance sheet disclosure requirements.
DECEMBER 31, --------------------------------------- 2003 2002 ------------------ ---------------- ASSETS: Cash and due from banks.......................... Ps. 836,010 Ps. 594,031 Interest-bearing deposits in other banks......... 172,360 158,273 Trading account assets........................... 328,754 35,471 Available for sale securities.................... 7,086,882 3,097,787 Loans............................................ 8,566,310 12,252,843 Allowances for loan losses....................... (1,183,726) (1,687,303) Fixed assets..................................... 517,532 570,475 Compensatory and hedge bonds to be received...... 4,629,595 7,098,505 Other assets..................................... 2,156,089 2,069,128 ------------------ ---------------- Total assets................................ Ps. 23,109,806 Ps. 24,189,210 ================== ================ LIABILITIES AND SHAREHOLDERS' EQUITY: Deposits......................................... Ps. 5,520,610 Ps. 5,161,638 Short-term borrowing............................. 1,376,354 6,601,209 Other liabilities................................ 2,222,993 2,013,988 Long-term debt................................... 12,016,700 8,355,373 Commitments and contingent liabilities........... 414,875 334,559 Minority interest in Consolidated Subsidiaries... 95,937 83,806 Common stock..................................... 1,092,407 1,092,407 Other shareholders' equity....................... 369,930 546,230 ------------------ ---------------- Total liabilities and shareholders' equity.. Ps. 23,109,806 Ps. 24,189,210 ================== ================ |
The carrying value and market value of each classification of available-for-sale securities in the Article 9 balance sheet, were as follows.
DECEMBER 31, 2003 DECEMBER 31, 2002 ----------------------------------------------- ----------------------------------------------- UNREALIZED UNREALIZED CARRYING VALUE GAINS/(LOSSES)(3) MARKET VALUE CARRYING VALUE GAINS/(LOSSES)(3) MARKET VALUE -------------- ----------------- ------------- -------------- ----------------- ------------ Argentine External Bills (1)... Ps. 875,138 Ps. - Ps. 496,142 Ps. 979,451 Ps. - Ps. 979,451 BODEN 2012 - Compensatory Bond........................... 1,609,982 113,076 1,036,640 693,471 (20,307) 291,451 Fiscal Credit Certificate (2).. 78,575 - 78,575 106,336 - 106,336 BODEN 2012.................... - - - 4,539 (1,129) 3,410 BOGAR.......................... 3,473,661 244,724 2,116,497 - GalTrust I..................... 646,143 (134,657) 254,835 686,160 6,888 436,397 Other securities............... 403,383 - 403,383 627,830 - 627,830 -------------- ----------------- ------------ -------------- ----------------- ------------ TOTAL................... Ps. 7,086,882 Ps. 223,143 Ps.4,386,072 Ps. 3,097,787 Ps. (14,548) Ps.2,444,875 ============== ================= ============ ============== ================= ============ |
(1) As of December 31, 2002, these instruments can be used to repay taxes, including value-added tax.
(2) These instruments can be used to repay taxes, including value-added tax
(3) For U.S. GAAP purposes losses considered to be other than temporary or fluctuation in the exchange rates of US dollar available for sale securities were charged to income statement and the quotation differences were recognized as unrealized gain / (losses) in the other comprehensive income.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The maturities at December 31, 2003 of the government securities available-for-sale and the GalTrust I, securities included in the Article 9 balance sheet were as follows:
DECEMBER 31, 2003 --------------------------------------------------------------------------------------------------- MATURING AFTER MATURING AFTER Past MATURING WITHIN 1 YEAR BUT 5 YEARS BUT MATURING AFTER CARRYING VALUE Due/callable 1 YEAR WITHIN 5 YEARS WITHIN 10 YEARS 10 YEARS -------------- ------------ --------------- -------------- --------------- -------------- Argentine External Bills ...................... Ps. 875,138 875,138 Ps. - Ps. - Ps. - Ps. - BODEN 2012 - Compensatory Bond ....................... 1,609,982 - 48,424 780,779 780,779 - Fiscal Credit Certificate ................ 78,575 - 78,575 - - - GalTrust I ................. 646,143 - - 118,891 214,519 312,733 BOGAR ...................... 3,473,661 - - 639,154 1,153,255 1,681,252 Other securities ........... 403,383 - 403,383 - - - -------------- ------- --------------- -------------- --------------- -------------- TOTAL ...................... Ps. 7,086,882 875,138 Ps. 530,382 Ps. 1,538,824 Ps. 2,148,553 Ps. 1,993,985 ============== ======= =============== ============== =============== ============== |
28. OPERATIONS BY GEOGRAPHICAL SEGMENT
The main financial information, classified by country where transactions originate, is shown below. Most of the transactions originated in the Republic of Uruguay were with Argentine citizens and enterprises, and were denominated in U.S. dollars. Transactions between different geographical segments have been eliminated for the purposes of this note.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, --------------------------------------------- 2003 2002 2001 ------------- ------------- ------------- Total revenues:(*) Republic of Argentina ............................................ Ps. 2,608,884 Ps. 6,082,083 Ps. 5,119,784 Republic of Uruguay .............................................. 213,318 355,327 213,580 U.S.A ............................................................ - 173,887 138,637 Grand Cayman Island .............................................. 10,704 (6,194) 855 United Kingdom ................................................... - - 183 Net income (loss), net of monetary effects allocable to each country: Republic of Argentina ............................................ (137,834) (1,475,844) 292,826 Republic of Uruguay .............................................. (63,380) (75,584) (35,786) U.S.A ............................................................ - 128,900 56,930 Grand Cayman Island .............................................. (15,845) (48,983) (47,610) United Kingdom ................................................... - - (1,820) Total assets: Republic of Argentina ............................................ 21,931,206 22,402,237 23,891,523 Republic of Uruguay .............................................. 908,137 1,302,557 2,875,250 U.S.A ............................................................ - 15,724 1,106,533 Grand Cayman Island .............................................. 55,322 184,000 749 United Kingdom ................................................... - - 3,572 Fixed assets Republic of Argentina ............................................ 504,742 554,335 611,626 Republic of Uruguay .............................................. 12,790 16,140 11,958 U.S.A ............................................................ - - 619 United Kingdom ................................................... - - 91 Miscellaneous assets Republic of Argentina ............................................ 156,084 182,367 231,676 Republic of Uruguay .............................................. 2,014 2,395 1,624 Goodwill Republic of Argentina ............................................ 139,681 168,719 273,897 Republic of Uruguay .............................................. - 1,665 4,742 Other intangible assets Republic of Argentina ............................................ 587,373 151,235 217,311 Republic of Uruguay .............................................. 3 329 456 U.S.A ............................................................ - - 1,137 Grand Cayman Island .............................................. - - 4 Geographical segment assets as a percentage of total assets Republic of Argentina ............................................ 95.79% 93.71% 85.70% Republic of Uruguay .............................................. 3.97% 5.45% 10.31% U.S.A ............................................................ - 0.07% 3.97% Grand Cayman Island/United Kingdom ............................... 0.24% 0.77% 0.02% |
(*) The caption Revenues includes financial income, income from services and miscellaneous income.
29. FINANCIAL INSTRUMENTS WITH OFF-BALANCE SHEET RISK
The Bank has been party to financial instruments with off-balance sheet risk in the normal course of its business to meet the financing needs of its customers. These instruments expose the Bank to credit risk above and beyond the amounts recorded in the consolidated balance sheets. These financial instruments include commitments to extend credit, standby letters of credit, guarantees granted and acceptances. Guarantees granted are surety guarantees in connection with transactions between two parties.
The Bank uses the same credit policies in making commitments, conditional obligations and guarantees as it does for granting loans. In the opinion of management, the Bank's outstanding commitments and guarantees do not represent unusual credit risk.
The Bank's exposure to credit loss in the event of non-performance by the counterparty to the financial instrument for commitments to extend credit, standby letters of credit, guarantees granted and acceptances is represented by the contractual notional amount of those investments.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
A summary of the credit exposure related to these items is shown below:
DECEMBER 31, ---------------------- 2003 2002 ---------- ---------- Commitments to extend credit ... Ps. 220,913 Ps. 171,041 Standby letters of credit ...... 10,925 49,011 Guarantees granted ............. 234,416 270,940 Acceptances .................... 22,354 105,760 |
Commitments to extend credit are agreements to lend to a customer at a future date, subject to the meeting of the contractual terms. Commitments generally have fixed expiration dates or other termination clauses and may require payment of a fee. Since many of the commitments are expected to expire without being drawn upon, total commitment amounts do not necessarily represent actual future cash requirements of the Bank. The Bank evaluates each customer's creditworthiness on a case-by-case basis. In addition to the above commitment, at December 31, 2003 and 2002 the available purchase limits for credit card holders amounted to Ps.2,675,142 and Ps.1,103,310, respectively.
Standby letters of credit and guarantees granted are conditional commitments issued by the Bank to guarantee the performance of a customer to a third party.
Acceptances are conditional commitments for foreign trade transactions.
The credit risk involved in issuing letters of credit and granting guarantees is essentially the same as that involved in extending loan facilities to customers. In order to grant guarantees to its customers, the Bank may require counter guarantees. These financial customer guarantees are classified, by type, as follows:
DECEMBER 31, ---------------------- 2003 2002 ---------- ---------- Preferred counter guarantees.. Ps. 53,563 Ps. 152,648 Other counter guarantees ..... 97,676 44,071 |
The Bank accounts for checks drawn on it and other banks, as well as other items in process of collection, such as notes, bills and miscellaneous items, in memorandum accounts until such time as the related item clears or is accepted. In management's opinion, the risk of loss on these clearing transactions is not significant. The amounts of clearing items in process were as follows:
DECEMBER 31, ------------------------ 2003 2002 ----------- ----------- Checks drawn on the Bank ............. Ps. 109,164 Ps. 78,463 Checks drawn on the other Bank ....... 162,396 128,348 Bills and other items for collection.. 326,994 273,963 |
As regards the fiduciary risk, during the fiscal year 2000, the Bank was appointed as trustee under four trust agreements to guarantee compliance with the obligations arising from different contracts between the parties.
At December 31, 2003 and 2002 the trust funds amounted to Ps.72,832 and Ps.77,175, respectively.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
In addition, the Bank has securities in custody, mainly related to its activity as mutual fund depositary institution. At December 31, 2003 and 2002, these securities amounted to Ps.5,412,706 and Ps.6,478,044, respectively.
30. DERIVATIVE FINANCIAL INSTRUMENTS
At December 31, 2003 and 2002 the options bought and sold were recorded at their exercise price in memorandum accounts. The premiums collected and/or paid have been accrued on a straight-line basis over the life of the contract.
MEMORANDUM ACCOUNTS FAIR VALUE ------------------------ ------------------------- DECEMBER 31, DECEMBER 31, ------------------------ ------------------------- 2003 2002 2003 2002 ----------- ----------- ----------- ------------ Option contracts: Written call options Ps. - Ps. 11,966 Ps. - Ps. 11,966 Written put options (1) 165,411 - 69,668 - Purchased call options - 2,521 - 2,521 |
(1) As established by Section 4, subsect. a and Section 6 of Decree No. 1836/02 and Argentine Central Bank Communique "A" 3828, in view of the "Exchange of deposits with the financial system II", the Bank granted an option to sell coupons to the holders of restructured deposits certificates who had opted to receive BODEN 2013, BODEN 2006, BODEN 2012 or BODEN 2005 in lieu of payment of those certificates.
In addition the Bank is exposed to credit risk on these instruments. The Bank would have credit losses in the event of non-performance by the counter-parties that issued the financial instruments. The credit exposure of derivative contracts is represented by the sum of the positive fair value of the individual contracts at the reporting date.
In order to reduce its counter-party credit risk the Bank performs a credit analysis of each counter-party and does not exceed the exposure limits established by the Board of Directors.
The exercise price will be equal to that resulting from converting to pesos the face value of each coupon in US dollars at a rate of Ps.1.40 per US dollar adjusted by applying the CER, which arises from comparing the index at February 3, 2002 to that corresponding to the due date of the coupon. That value shall in no case exceed the principal and interest amounts in pesos resulting from applying the face value of the coupon in US dollars at the buying exchange rate quoted by Banco de la Nacion Argentina (Banco Nacion) on the payment date of that coupon.
31. DISCLOSURE ABOUT FAIR VALUE OF FINANCIAL INSTRUMENTS
Financial Accounting Standards No. 107 ("SFAS") "Disclosures about Fair Value of Financial Instruments" requires disclosures of estimates of fair value of financial instruments. These estimates were made at the end of December 2003 and 2002. Because many of the Bank's financial instruments do not have a ready trading market from which to determine fair value, the disclosures are based upon significant estimates regarding economic and current market conditions and risk characteristics. Such estimates are subjective and involve matters of judgment and, therefore, are not precise and may not be reasonably comparable to estimates of fair value for similar instruments made by other financial institutions.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The estimated fair values do not include the value of assets and liabilities not considered financial instruments.
In order to determine the fair value, cash flows were discounted for each category or group of loans having similar characteristics, based on credit risk, guarantees and/or maturities, using rates offered for similar loans by the Bank at December 31, 2003 and 2002, respectively.
Due to the uncertainties derived from the economic crisis existing in Argentina at the end of 2001 and the economic policy measures taken by the government to confront this crisis, the future actual results could differ from the evaluations and estimates made at the date of the preparation of this quantitative analysis and these differences could be significant. Therefore, the following fair values estimated under FAS 107 must be considered in light of these circumstances.
2003 2002 ---------------------------- ---------------------------- Book Value Fair Value Book Value Fair Value ------------- ------------- ------------- ------------- DERIVATIVE ACTIVITIES: (SEE NOTE 30) Assets ............................................. Ps. - Ps. - Ps. - Ps. - Liabilities ........................................ - - - - NON DERIVATIVE ACTIVITIES: Assets: Cash and due from banks (1) ........................ Ps. 826,150 Ps. 826,150 Ps. 576,838 Ps. 576,838 Government securities (2) Trading ....................................... 327,911 327,911 4,725 4,725 Unlisted Securities ........................... 86,227 86,227 149,239 149,239 Investment .................................... 2,485,120 1,532,782 1,672,922 1,270,901 Loans (3) .......................................... 10,983,757 8,551,264 10,682,163 8,055,776 Compensatory and hedge Bond to be received (4) ..... 4,629,595 2,980,996 7,098,505 3,090,739 Others (5) ......................................... 1,838,660 1,307,585 2,390,496 2,072,648 Liabilities: Deposits (6) ....................................... Ps. 5,583,991 Ps. 5,183,739 Ps. 5,209,360 Ps. 4,430,129 Other liabilities resulting from financial Intermediation : Argentine Central Bank (7) ......................... 8,132,902 5,804,241 8,132,792 7,652,655 Banks and international entities and Loans from Domestic Financial Institutions (8) ................ 3,149,989 1,308,103 7,100,825 2,575,397 Negotiable obligations (9) ......................... 2,565,520 2,150,256 - - Others (10) ........................................ 1,251,010 1,123,042 1,137,351 1,137,350 |
The following is a description of the estimating techniques applied:
(1) CASH AND DUE FROM BANKS: By definition, cash and due from banks are short-term and do not possess credit loss risk. The carrying values at December 31, 2003 and 2002 are a reasonable estimate of fair value.
(2) GOVERNMENT SECURITIES: Government securities held for trading purposes and government securities available for sale are carried at fair value. The fair value of the Bank's government securities held for investment have been estimated using the quoted market value. The book values at December 31, 2003 and 2002 of bonds such as Fiscal Credit Certificate, are a reasonable estimates their respective fair values.
(3) LOANS: In order to determine the fair value of loans, the portfolio was segregated by loan type, repricing characteristics and credit quality. For performing loans, contractual cash flows of loans were discounted at estimated market rates. For non-performing loans, expected cash flows were discounted using an estimated rate considering the time of collection. The value of collateral was considered in the estimation of cash flows.
(4) COMPENSATORY AND HEDGE BONDS TO BE RECEIVED: in connection with estimating the fair value of the compensatory bonds, the Bank used quoted market values.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
(5) OTHERS: Includes other receivables from financial brokerage and equity investments in other companies. A majority of the items included under "Other Receivables from Financial Brokerage" are short-term in nature and do not possess significant risk although the fair value of the forward purchases of government securities held for investment purposes is the quoted market value of the underlying government securities. Also included under this caption are the Galtrust I debt securities and trust certificates. Equity investments in companies where significant influence is exercised are not within the scope of SFAS No. 107. Equity investments in other companies are carried at market value less costs to sell. The book value of unquoted equity securities is believed by management to approximate fair value. Also, includes compensation for the application of the CER/CVS. The fair value of the bonds to be received have been estimated using the quoted market value.
(6) DEPOSITS: The fair value of deposit liabilities on demand and savings account deposits is similar to its book value. The fair value of term deposits was estimated at the expected future cash flows discounted at the estimated market rates at year-end, following management's expectations.
(7) ARGENTINE CENTRAL BANK: At December 31, 2003 and 2002 "Argentine Central Bank" includes the advance to be requested to the Argentine Central Bank for the subscription of the hedge bond. At December 31, 2002, includes Argentine Central Bank's short term loans for liquidity support which where restructured during 2003. At December 31, 2003, this caption included the restructured Argentine Central Bank loans for liquidity support. The fair value was estimated at the expected future cash flows discounted at the estimated market rates at year-end.
(8) BANKS AND INTERNATIONAL ENTITIES AND LOANS FROM DOMESTIC FINANCIAL INSTITUTIONS: Includes credit lines borrowed under different credit arrangements from local and foreign entities. These lines of credit were being restructured as of December 31, 2003. Where a market exists in the Bank's debt, the quoted market prices have been taken as a best estimate of fair value. When no quoted market prices are available, the estimated fair value has been calculated by discounting the contractual cash flows of these liabilities at estimated market rates.
(9) NEGOTIABLE OBLIGATIONS: The fair value of the negotiable obligations were determined based on quoted market prices. When no quoted market prices are available, the estimated fair value has been calculated by discounting the contractual cash flows of these liabilities at estimated market rates.
(10) OTHERS: Includes other liabilities resulting from financial brokerage the carrying values of which at December 31, 2003 are a reasonable estimate of fair value. As of December 31, 2002, also includes the New York branch debt securities which fair value was determined based upon a discounted cash flow, applying estimated current market rates for the remaining terms of the debt securities.
32. CASH DIVIDENDS
On March 15, 2001, the shareholders of Grupo Galicia approved a cash dividend of Ps.71,369.
Argentine Central Bank Communique "A" 3785 dated October 29, 2002 restricted the distribution of cash dividends. Such rule establishes that the Bank should adjust its earnings to be distributed as cash dividends with the difference between the market value and the carrying value of the compensatory and hedge bonds after netting the legal reserve and other reserves established by the Bank's by-laws.( see note 22)
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
33. PREFERRED LIABILITIES OF THE FORMER BANCO ALMAFUERTE COOP. LTDO., BANCO MENDOZA S.A. AND BANCO MERCOBANK S.A.
Former Banco Almafuerte Coop. Ltdo
During the years ended June 30, 1999, 2000 and December 31, 2000 and 2001, the Bank acquired certain interest in a trust sponsored by SEDESA, the Argentine deposit insurance authority. The trust holds the assets of three failed Argentine banks. The Bank acquired the interests in exchange for the assumption of the deposit liabilities of the failed banks. The Bank's interest in the trust consists of preferred certificates A, and subordinated certificates C, whose payments are guaranteed by SEDESA. At December 31, 2003 and 2002, trust certificates were recorded at an amount of Ps.20,144 and Ps.22,236, respectively, in the consolidated financial statements.
Furthermore, a fund was created for a total amount of US$266,667 to which Banco de Galicia y Buenos Aires S.A. contributed 45%, US$120,000. This fund, which as of December 31, 2003 amounted to Ps.245,595 due to its conversion into pesos as established by Decree 471, may be computable for meeting the Minimum Liquidity Requirements, as authorized by the Argentine Central Bank. At December 31, 2002, it amounted to Ps.172,381.
Former Banco Mendoza S.A.
On May 11, 1999, a special fund was set up by Banco de Galicia y Buenos Aires S.A., Banco de la Nacion Argentina, HSBC Bank Argentina S.A., BBV Banco Frances S.A. and Banco Credicoop Cooperativo Limitado, as authorized by the Argentine Central Bank's Board of Directors in points 10 and 13 of its Resolution N(degree) 179 dated April 16, 1999. This fund was created for a total amount of US$470,000; Banco de Galicia y Buenos Aires S.A. contributed 10.64%, US$50,000.
On December 19, 2003 the above-mentioned fund was terminated, the Bank receiving secured loans for Ps.95,167, Treasury Bills in US dollars due March 15, 2002 for Ps.818 and the remainder in cash. At the end of the same period of the previous year, the fund totaled Ps.71,685.
Former Banco Mercobank S.A
On January 5, 2001, the Bank assumed certain preferred liabilities corresponding to 3 (three) branches of the former Banco Mercobank S.A.-
This transaction was conducted under the terms of the "Transfer Contract" and the "DIAGONAL Trust Agreement" signed by and between the former Banco Mercobank S.A., Banco de Galicia y Buenos Aires S.A. and other institutions which took part in the process involving the assumption of the liabilities of the above mentioned bank, as called for by resolution No. 19 adopted by the Board of Directors of the Argentine Central Bank on January 5, 2001, within the framework of article 35 bis, section II, clauses a) and b) of the Financial Institutions Law. As a counterpart, the Bank has received an interest in the class A certificate of the DIAGONAL Trust (consisting of certain assets pertaining to the former Banco Mercobank S.A.) and payments from SEDESA. As of December 31, 2003, the amount of that interest, net of provisions, was Ps.1,449. At the end of the same period of the previous year, it amounted to Ps.1,676.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
34. TRUST ACTIVITIES
"GALTRUST I" INDIVIDUAL FINANCIAL TRUST
On October 20, 2000 the Bank securitized a group of loans that were granted to the Argentine Provinces. The taxation revenues from the local provinces collateralize these loans. The Bank transferred the ownership of the loans to a trust Galtrust I. In turn the trust issued Class "A" Debt Securities with a face value of Ps.100,000, Class "B" Debt Securities with a face value of Ps.200,000 and Financial Trust Participation Certificates with a face value of Ps.200,000. Ps46,922 of the class B Debt Securities were sold to third party invertors and the remainder of the certificates was retained by the bank.
Under this global program, the Bank transferred the trust ownership of loans amounting Ps.1,070,855 granted to Argentine provinces collateralized by the federal tax sharing corresponding to those Provinces and reserve investments for Ps.16,953, to the GalTrust I Financial Trust in exchange for cash and retained interest in the trust in the form of Class "A" Debt Securities, Class "B" Debt Securities and Financial Trust Participation Certificates.
As of December 31, 2001 all class A debt securities were cancelled.
As of December 31, 2003 and 2002, those securities were held in the Bank's portfolio for Ps.646,143 and Ps.686,160, respectively.
"GALTRUST II, III, IV AND V" INDIVIDUAL FINANCIAL TRUSTS
At the meeting held on December 6, 2001, the Board of Directors of Banco de Galicia y Buenos Aires S.A. approved the creation of the Universal Program for the Securitization of Loans for the issue of debt securities and/or certificates of participation in Galtrust Financial Trusts. This program was approved by the National Securities Commission ("the CNV") through its resolution No. 13,334 dated April 6, 2000, for a face value of up to US$ 1,000,000 thousand (the "Program") and authorized the Bank's participation as originator, trustor and manager of that program.
The trustee of the trusts is First Trust of New York, National Association, through its permanent representation in Argentina. Four financial trusts, "Galtrust II, III, IV and V - Letras Hipotecarias", were set up under the above-mentioned program and Certificates of Participation and Debt Securities were issued under those trusts.
In December 2001, the Bank transferred the trust ownership of mortgage loans amounting to Ps.525,839 to the Galtrust II, III, IV and V - Letras Hipotecarias.
The Bank subscribed Certificates of Participation for a face value of Ps.136,839 thousand, in which it had a 100% interest and the remaining Class A and Class B Debt Securities were subscribed for by the Bank .
As December 26, 2002 the Galtrust III and IV financial trusts were terminated.
As of December 31, 2003 and 2002, the Bank held Certificates of Participation and Debt Securities in its portfolio for Ps.68,772 and Ps.82,150, respectively.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
GALICIA MORTGAGE LOANS AND SECURED LOANS TRUSTS
As part of the implementation of the Galicia Capitalization and Liquidity Plan, during April 2002, the "Galicia Mortgage Loans Financial Trust" was created, under which mortgage loans for Ps.312,774 were transferred, receiving in exchange Ps.234,580 in cash and certificates of participation for Ps.78,194. The trustee is ABN AMRO Bank Argentine Branch, along with thirteen domestic financial institutions acting as subscribers. In addition, the Bank has guaranteed the loans transfered to this trust.
The Secured Loans Trust has been created and the parties involved are Banco de la Provincia de Buenos Aires as beneficiary and BAPRO Mandatos y Negocios S.A., as trustee. Under this Trust, secured loans for Ps.108,000 were transferred and Ps.81,000 in cash and certificates of participation for Ps.27,000 were received in exchange. As of December 31, 2003 the amounts of the participation certificates in "Galicia Mortgage Loans Financial Trust" were Ps.118,396 and the participation certificates of the "Secured Loans Trust" were Ps.40,494.
35. REGIONAL CREDIT CARD COMPANIES
Tarjetas Regionales S.A. is a holding company, which as of December 31, 2001, was wholly owned by Grupo Financiero Galicia S.A. through its subsidiaries Banco Galicia Uruguay S.A. and Banco de Galicia y Buenos Aires S.A.
The December 31, 2003 financial statements of Tarjetas Regionales S.A., which were used for consolidation purposes, have in turn been consolidated on a line-by-line basis with those of Tarjeta Naranja S.A., Tarjetas Cuyanas S.A., Tarjeta Comfiar S.A. and Tarjetas del Mar S.A., in which Tarjetas Regionales S.A. holds a controlling interest.
The percentages directly held in those companies' capital stock are as follows:
December 2003 December 2002 Tarjetas Cuyanas S.A. 60% 60% Tarjetas del Mar S.A. 100% 100% Tarjeta Naranja S.A. 80% 80% Tarjeta Comfiar S.A. 60% 60% |
The percentages indirectly held in those companies' capital stock through the controlled entity Tarjeta Naranja S.A. are as follows:
Tarjeta Comfiar S.A. 32% 32% |
In addition, Tarjeta Naranja S.A. financial statements have been consolidated with the financial statements of Cobranzas Regionales S.A., in which it holds 66.4% of voting stock. Furthermore, Tarjeta Comfiar S.A. and Tarjetas Cuyanas S.A. hold a 21.3% and 12.3% interest in that company's capital stock and voting rights.
- Tarjetas Cuyanas S.A.:
On May 23 and October 31, 2002, that company entered into two agreements for the redemption of its Negotiable Obligations through the issue of debt certificates.
At the end of the year ended December 31, 2003, holders of negotiable obligations adhered to the exchange of negotiable obligations for debt certificates in the amount of approximately US$5,000 and US$1,450, respectively, the residual value amounting to US$2,880 at year end. As of
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
December 31, 2003, the Company has valued these debts at approximately Ps. 6,459, a figure obtained by applying the present value method to the future discounted cash flows, as established by CNV Resolution No. 434/03.
For purposes of applying the valuation method mentioned above, Tarjetas Cuyanas S.A. has taken as a premise for the agreement entered into on May 23, 2002 a nominal annual discount rate of 11% and a cash flow made up of 5% of the monthly collections of receivables derived from the use of credit cards for a term of 8 years, counted as from the earlier of June 1, 2002 or until the full amortization of the subscribed certificates, and for the agreement entered into on October 31, 2002, a nominal annual discount rate of 11% and a cash flow made up of 1.75% of the monthly collections of receivables derived from the use of credit cards for a term of 7 years and 7 months, counted as from the earlier of November 1, 2002 or until the full amortization of the subscribed certificates.
The above-mentioned cash flows are made up of:
a) receivables derived from the use of credit cards;
b) consumer loans granted by the Company to the holders of credit cards issued it; and
c) refinancing of receivables mentioned in a) and b).
As a result of the above-mentioned transactions and of certain payments made, Tarjetas Cuyanas S.A. records due and payable negotiable obligations which amount to approximately US$ 3,337 as of December 31, 2003, of which US$ 3,180 are in the hands of the minority shareholders, with whom the issuance of a new series in pesos is being negotiated for a term of one year, converting the nominal values due at a conversion rate of $1.9 per US dollar. As of December 31, 2003, Tarjetas Cuyanas S.A. had valued this debt at approximately Ps. 6,268 which represent the redemption value estimated by the management of Tarjetas Cuyanas S.A. on the basis of the negotiations carried out so far. If this debt were to be valued at the free US dollar exchange rate, an additional loss of approximately Ps. 3,523 would be generated at year end. The maximum risk attaching to the situations described above in relation to the financial statemwnts of Tarjetas Regionales S.A. and Banco de Galicia y Buenos Aires S.A. amounts to approximately Ps. 2,114.
- Tarjetas del Mar S.A.:
As of December 31, 2003, the debt certificates issued by Tarjetas del Mar S.A. and accepted by most holders of obligations in order to redeem negotiable obligations amounted to US$ 15,000 (face value).
The operation schedule proposed is the following: (i) Tarjetas del Mar S.A. issues a debt certificate for US$15,000, payable within 10 years in 10 annual and consecutive installments; (ii) Tarjetas del Mar S.A. exchanges with Banco de Galicia (Cayman Branch) its own debt certificate for a certificate issued by Tarjeta Naranja S.A., which is held by that subsidiary; and (iii) Tarjetas del Mar S.A. offers the holders of its Negotiable Obligations to exchange them for the debt certificate issued by Tarjeta Naranja S.A. The Argentine Central Bank has not made any observations in relation to this procedure, concerning matters within its field of competence.
As of December 31, 2003, the balance of the Global Negotiable Obligation Program
issued by Tarjetas del Mar S.A., which continue to be due and payable is
equivalent to an amount of US$ 842. Tarjetas del Mar S.A.'s Board of Directors
has valued the negotiable obligations as of December 31, 2003 as follows: US$
662 (face value) at the exchange rate of US$1 = Ps.1, plus CER, and US$ 180
(face value) at the exchange rate of US$1 = Ps.1.40. If all the due and payable
negotiable obligations as of December 31, 2003 were to be valued at the
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
free US dollar exchange rate, an additional loss of approximately Ps. 1,251 would be generated as of year end.
The maximum risk attaching to the situations described above in relation to the financial statements of Tarjetas Regionales S.A. and Banco de Galicia y Buenos Aires S.A. amounts to approximately Ps. 1,251.
- Tarjeta Comfiar S.A.:
On August 4, 2003 Tarjeta Comfiar S.A. requested from the CNV and the Buenos Aires Stock Exchange the delisting from the public offering regime and the revocation of the approval of the short and medium-term Global Negotiable Obligation Issue Program for up to US$ 50,000, as it was not this company's intention to issue new negotiable obligations and it had no outstanding negotiable obligations.
The Buenos Aires Stock Exchange revoked the approval of the mentioned global program through a letter dated August 8, 2003 and the CNV authorized the delisting from the public offering regime through Resolution No. 14619 dated September 11, 2003
As of December 31, 2003, its liabilities for negotiable obligations have been settled.
- Tarjeta Naranja S.A.:
On May 23, 2002, the Tarjeta Naranja S.A. executed two agreements for the redemption of negotiable obligations and the issuance of debt certificates in US dollars secured by a trust. As of December 31, 2003, holders of negotiable obligations had adhered to this agreement in the amount of US$ 69,577, the residual value of those negotiable obligations amounting to US$ 46,028 at year end, due to amortization for the year.
The debt certificates have been valued by determining the present value of the cash flow involved, converted at the exchange rate prevailing on the transaction date, assuming a discount rate equivalent to an annual effective rate of 11% as a premise. The application of the present value method to this financial debt, recommended by Technical Pronouncement No. 17 of the Argentine Federation of Professional Councils in Economic Sciences and approved by the Professional Council in Economic Sciences of the Province of Cordoba, results in US$ 42,300 which, valued at the year-end exchange rate represents Ps. 123,940 (including principal and accrued interest.
The overdue balance of the Global Negotiable Obligation Program not collected by their holders as of December 31, 2003 amounts to US$ 1,954.
In view of the Tarjeta Naranja S.A.'s expectations for the method of redemption of these obligations, either by means of the adherence to the agreement or by redeeming them in cash, such obligations have been valued as follows: 50%, that is US$ 977, are expected to be redeemed in cash applying the US$1=$1 exchange rate, plus CER, and the remaining 50% is expected to be exchanged for debt securities, so they were valued applying the same procedure as that described above for debt certificates, a present value of US$ 896 being determined which, applying the exchange rate in force at year end, represents a liability of Ps. 2,626. If all the due and payable negotiable obligations amounting to US$ 1,954 as of December 31, 2003 were to be valued applying the free US dollar exchange rate, an additional loss of approximately Ps. 1,676 would be generated at year end.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The maximum risk attaching to the situations described above, which could have an impact on the consolidated financial statements of Tarjetas Regionales and Banco de Galicia y Buenos Aires S.A., amounts to approximately Ps. 1,341.
On February 6, 2003 the Board of Directors of Tarjeta Naranja S.A. approved the issuance of Debt Certificates secured by a Trust Series II for US$ 15,000 with similar characteristics to the Agreement entered into on May 23, 2002 for the redemption of negotiable obligations Series XXVII. On February 7, 2003 that Agreement was entered into and fully subscribed. This debt is being settled in monthly installments with 1% of collections since February 1, 2003, over 8 years counted as from the earlier of that date or until the full amortization of the certificates subscribed.
At year end, the residual value of those certificates amounted to US$ 11,350.
Those debt certificates were valued by determining the present value of the discounted cash flows, converted at year-end exchange rate assuming a discount rate equivalent to an annual effective rate of 11% as a premise. The application of the present value method to this financial debt, established by Technical Pronouncement No. 17 of the Argentine Federation of Professional Councils in Economic Sciences and approved by the Professional Council in Economic Sciences of the Province of Cordoba, results in a present value of US$ 10,286 (principal) and US$ 19 (interest) which, valued at year-end exchange rate represents a principal amount of Ps. 30,137 plus interest for Ps. 56.
- Restructuring of the debt held by the credit card companies with Banco de Galicia y Buenos Aires S.A.:
On June 26, 2003, the minority shareholders of Tarjeta Naranja S.A. undertook to make an irrevocable contribution of Ps. 5,000 subject to the conditions precedent that the majority shareholder makes an irrevocable contribution of Ps. 20,000 under the same conditions and agrees with Banco Galicia y Buenos Aires S.A. to restructure the liabilities held with that entity. On July 18, 2003, Tarjeta Naranja S.A. paid Banco de Galicia y Buenos Aires S.A. all interest accrued at that date on the bank debt of Ps. 80,000. This debt fell due on February 12, 2003.
On August 4, 2003, Banco de Galicia y Buenos Aires S.A. approved the restructuring of Tarjetas Cuyanas S.A.'s financial debt of Ps. 10,000. The conditions for restructuring this financial debt are the following: a term of one year, interest payable at the Survey rate established by the Argentine Central Bank , plus an annual rate of 2%. At year end, the balance, net of early settlements, amounted to Ps. 9,175.
On January 15, 2004 the Argentine Central Bank was informed and made no observations on the proposal for the restructuring of the financial liabilities. of Tarjeta Naranja S.A., Tarjeta Comfiar S.A., merged into Tarjeta Naranja S.A. as from January 1, 2004, and Tarjetas del Mar S.A. held with Banco de Galicia y Buenos Aires S.A. Such proposal is subject to the merger between Tarjeta Naranja S.A. and Tarjetas del Mar S.A., a corporate reorganization that must be dealt with and approved by the respective Meetings of Shareholders and consummated before June 30, 2004.
On January 28, 2004 the Meeting of Shareholders and the Board of Directors of Tarjeta Naranja S.A. approved the "Debt Restructuring Plan", consisting of the renegotiation of the terms and conditions of the outstanding debt with Banco de Galicia y Buenos Aires S.A. and Banco de
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Galicia y Buenos Aires S.A. - Cayman Branch and the acceptance of irrevocable contributions for Ps. 25,000. This Plan is summarized as follows:
Debt for Series XXVII negotiable obligations for US$ 8,842 plus interest: the proposal to make irrevocable contributions for Ps. 25,000 on account of future subscriptions of shares submitted by Banco de Galicia y Buenos Aires S.A. and the minority shareholders of Tarjeta Naranja S.A. was accepted. The balance will be fully repaid by Tarjeta Naranja S.A..
Tarjeta Naranja S.A. issued peso-denominated Debt Securities ("TD") for Ps. 167,000 secured by a Trust, payable over a maximum term of six years and a half, with monthly amortization of principal and monthly interest payments on balances due, at an adjusted Survey Rate improved by 2 % ("Trust III"). The trust guarantee is the higher of 2 % of the monthly cash flows of Tarjeta Naranja S.A., or 1.28205% of the face value of TD plus interest.
Tarjeta Naranja S.A. transfered the TD to a new trust ("Trust IV"), which issued two Certificates of Participation ("TP"), one "TP A" for Ps. 100,000 and another "TP B" for Ps. 67,000. The method of servicing under this Trust IV is subject to the same conditions as those stipulated under Trust III.
The "TP A" will be exchanged for past due and outstanding loans granted by Banco de Galicia y Buenos Aires S.A. to Tarjeta Naranja S.A. and Tarjeta Comfiar S.A. (already merged into Tarjeta Naranja S.A.) for Ps. 100,000 (including principal and interest on both loans).
The debt of US$ 22,423 plus interest held by Tarjeta Comfiar S.A. (already merged into Tarjeta Naranja S.A.) with Banco de Galicia y Buenos Aires S.A. - Cayman Branch was settled as follows: i) Banco de Galicia y Buenos Aires S.A. granted Tarjeta Naranja S.A., a peso-denominated loan for Ps. 67,000, and ii) the balance will be fully repaid by Tarjeta Naranja S.A..
This Ps. 67,000 loan granted to Tarjeta Naranja S.A. was repaid to Banco de Galicia y Buenos Aires S.A. through the delivery of "TP B".
At the same time, Tarjetas del Mar S.A. restructured its debt with Banco de Galicia y Buenos Aires S.A and Banco de Galicia y Buenos Aires S.A - Cayman Branch, an outstanding debt of around Ps. 12,000 continuing to be held by Banco de Galicia y Buenos Aires S.A. after an irrevocable capital contribution of Ps. 51,000 has been made. As part of this agreement, Tarjeta Naranja S.A. and Tarjetas del Mar S.A. will jointly and severally assume the commitment to repay the debt.
On September 15, 2003, the Board of Directors of Tarjeta Comfiar S.A. and Tarjeta Naranja S.A. signed a preliminary merger agreement involving the two companies, whereby Tarjeta Comfiar S.A. would merge into Tarjeta Naranja S.A.. Under this agreement, as from January 1, 2004 these companies shall jointly conduct the corporate business to take greater advantage of existing resources. The Preliminary Merger Agreement was approved by the Extraordinary Meetings of Shareholders of the two companies held on October 2, 2003.
The Final Merger Agreement was signed on November 14, 2003. Since that date, the Board of Directors of Tarjeta Naranja S.A. has assumed responsibility for the administration and representation of Tarjeta Comfiar S.A..
As a result of the merger process mentioned above, effective January 1, 2004 Tarjeta Naranja S.A. absorbed Tarjeta Comfiar S.A., which was dissolved without being liquidated to continue with the business activities carried out by it until that time under the name of Tarjeta Naranja S.A.,
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
under the preliminary merger agreement, assuming all contingent rights and obligations of the merged company.
36. SEGMENT REPORTING
The Bank has disclosed its segment information in accordance with the Statement of Financial Accounting Standards No. 131, "Disclosures about Segment of an Enterprise and Related Information". This standard establishes standards for reporting information about operating segments. Operating segments are defined as components of an enterprise about which separate financial information is available and which is regularly reviewed by the chief operating decision maker in deciding how to allocate resources and in assessing performance. Reportable segments consist of one or more operating segments with similar economic characteristics, distribution systems and regulatory environment. The information provided for Segment Reporting is based on internal reports used by management.
The following summarizes the aggregation of Grupo Galicia's operating segments into reportable segments:
Grupo Galicia: this segment includes the income and expenses related to the Holding Company, not attributable to its investments.
Insurance: includes the results of Grupo Galicia's equity interest in the insurance companies. At December 31, 2003 and 2002, Grupo Galicia maintained, through its subsidiary Sudamericana Holding S.A., controlling interests in Galicia Vida Compania de Seguros S.A., Galicia Retiro Compania de Seguros S.A., Instituto de Salta Seguros de Vida S.A., Galicia Patrimoniales Compania de Seguros S.A., Sudamericana Asesores de Seguros S.A. and Medigap Salud S.A.
Other Group's Businesses: this segment includes the results of the business of Galicia Warrants S.A. and Net Investment S.A. and its subsidiaries.
Buenos Aires Metropolitan branches: corresponds to the results of operations conducted with large corporations, small and medium-sized companies and individuals in branches located in the Federal Capital and Greater Buenos Aires (where the relatively greater economic activity occurs).
Branches throughout the rest of the country: this segment includes the results of operations with large corporations, small and medium-sized companies and individuals in the branches located in the rest of the country.
Home office: includes the results of operations with customers (large corporations, small and medium-sized companies and individuals) located in it, as well as the results of operations with the national and provincial public sectors.
Regional credit card companies: includes the results of the Bank's equity interests in the regional credit card companies. At December 31, 2003 and 2002, the Bank maintained, through its subsidiary Tarjetas Regionales S.A., controlling interests in Tarjeta Naranja S.A. (80%) in the province of Cordoba, Tarjetas Cuyanas S.A. (60%) in the province of Mendoza, Tarjeta Comfiar (92%) in the Province of Santa Fe, and Tarjetas del Mar (100% in 2003 and 2002, respectively) in the Province of Buenos Aires.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
International: the results of operations conducted through Banco Galicia Uruguay S.A., Banco de Galicia (Cayman) Ltd., the New York and Cayman branches, except for the operations carried out with customers located in some of the regions mentioned above.
Other financial business: This segment mainly includes the results of the business of Galicia Capital Markets S.A., Galicia Valores S.A. Sociedad de Bolsa, Agro Galicia S.A. and Galicia Factoring y Leasing S.A.
Other equity investments: Includes the results of the capital expenditures made by the Bank as minority interest in a variety of infrastructure and public utility service companies, such as Aguas Argentinas S.A., Correo Argentino S.A., Inversora Nihuiles S.A., Inversora Diamante S.A., etc.
Overhead and corporate adjustments: Includes the results of the operations that can not be allocated to the segments above and the results of the operations conducted between the aforementioned segments.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The Group evaluates segment performance based on net income. The table below shows the segment information for continuing operations for the fiscal years ended December 31, 2003, 2002 and 2001:
GRUPO GALICIA
Buenos Aires Rest of the Grupo Metropolitan Country Regional Credit Interna- YEAR ENDED DECEMBER 31, 2003: Galicia Branches Branches Head Office Cards tional -------------------------------- ------- ------------ ---------- ----------- --------------- --------- Net Financial Income (18,124) 60,872 49,962 (341,395) 55,456 186,504 Net Income from Services - 135,074 73,412 48,472 159,514 482 Provision for Loan Losses - 55,148 48,268 (40,434) 35,954 186,100 Monetary Results (1,126) - - (13,257) - - Operating Income (19,250) 140,798 75,106 (265,746) 179,016 886 Operating Expenses 4,766 192,973 133,007 81,445 102,301 30,971 Monetary results of operating expenses 1 - - 83 - - Other Income (Loss) 3,885 12,858 13,079 267,023 (4,467) 65,707 Monetary results of other income 8 - - 9,103 (592) (16) Minority Interest - - - - (22,219) 1,162 Pre-tax Income (20,122) (39,317) (44,822) (70,982) 49,437 36,768 Income tax provision 17 - - - - - Net Income (20,139) (39,317) (44,822) (70,982) 49,437 36,768 Foreign currency position compensation Net Income as a Percentage of Consolidated Net Income 9% 18% 21% 32% (23%) (17%) Average Loans - 941,002 976,312 488,360 429,504 1,132,046 Average Deposits - 1,805,663 1,286,810 1,321,546 - 806,981 Overhead and Other Financial Other Equity Insurance Other Group's Corporate Consolidated YEAR ENDED DECEMBER 31, 2003: Businesses Investments Business Businesses Adjustments Total -------------------------------- --------------- ------------ --------- ------------- ----------- ------------ Net Financial Income (3,313) - 33,226 (672) 156,522 179,038 Net Income from Services 2,053 - (3,103) 3,985 (58,490) 361,399 Provision for Loan Losses 1,392 - - - - 286,428 Monetary Results (123) - - - - (14,506) Operating Income (2,775) - 30,123 3,313 98,032 239,503 Operating Expenses 4,529 - 15,564 5,226 (7,418) 563,364 Monetary results of operating expenses - - - - - 84 Other Income (Loss) (23,378) (11,958) (10,203) (3,632) (188,503) 120,411 Monetary results of other income (376) - (11,673) 29 - (3,517) Minority Interest 34 - 1 - 11,436 (9,586) Pre-tax Income (31,024) (11,958) (7,316) (5,516) (71,617) (216,469) Income tax provision - - 573 - - 590 Net Income (31,024) (11,958) (7,889) (5,516) (71,617) (217,059) Foreign currency position compensation Net Income as a Percentage of Consolidated Net Income 14% 6% 4% 3% 33% 100% Average Loans - - - - - 3,967,224 Average Deposits - - - - (11,268) 5,209,732 |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Buenos Aires Rest of the Grupo Metropolitan Country Regional Credit Interna- YEAR ENDED DECEMBER 31, 2002: Galicia Branches Branches Head Office Cards tional -------------------------------- -------- ------------ ---------- ----------- --------------- --------- Net Financial Income 206,275 69,959 80,291 1,964,187 (17,248) (1,521,688) Net Income from Services (2) 149,467 83,456 (3,341) 143,045 (2,485) Provision for Loan Losses - 238,834 249,845 822,151 105,770 231,942 Monetary Results (168,482) - - (1,252,484) - - Operating Income 37,791 (19,408) (86,098) (113,789) 20,027 (1,756,115) Operating Expenses 7,130 198,983 140,679 380,298 113,537 74,834 Monetary results of operating Expenses 229 5,608 3,964 11,200 - - Other Income (Loss) (2,817) 6,972 7,586 (607,376) (57,631) (88,348) Monetary Results of other Income 403 1,579 1,479 115,919 (261,875) (2,128) Minority Interest - - - - 77,089 73,033 Pre-tax Income 28,476 (204,332) (213,748) (974,344) (335,927) (1,848,392) Income tax provision 59,244 - - - 397 685 Net Income (30,768) (204,232) (213,748) (974,344) (336,324) (1,849,077) Absorption of Losses - - - - - - Net Income (30,768) (204,232) (213,748) (974,344) (336,324) (1,849,077) Net Income as a percentage of Consolidated Net Income 1% 7% 8% 34% 12% 65% Average Loans - 1,825,997 1,698,762 9,186,731 315,175 2,235,743 Average Deposits - 2,068,766 1,399,324 3,200,220 - 2,289,351 Overhead and Other Financial Other Equity Insurance Other Group's Corporate Consolidated YEAR ENDED DECEMBER 31, 2002: Businesses Investments Business Businesses Adjustments Total ------------------------------ --------------- ------------ --------- ------------- ----------- ------------ Net Financial Income 7,379 - (45,179) 1,338 491,952 1,237,266 Net Income from Services 8,294 - (5,639) 5,308 (2,717) 375,386 Provision for Loan Losses 34 - - - - 1,648,576 Monetary Results (16,779) - - - - (1,437,745) Operating Income (1,140) - (50,818) 6,646 489,235 (1,473,669) Operating Expenses 10,614 - 23,093 7,452 (9,106) 947,514 Monetary results of operating Expenses - - - - - 21,001 Other Income (Loss) 12,413 (51,143) 86,400 (4,636) 217,156 (481,424) Monetary Results of other Income (1,336) - (14,703) (2,428) - (163,090) Minority Interest (133) - 19 - 119,564 269,572 Pre-tax Income (810) (51,143) (2,195) (7,870) 835,061 (2,775,124) Income tax provision 5,448 - - 647 - 66,421 Net Income (6,258) (51,143) (2,195) (8,517) 835,061 (2,841,545) Absorption of Losses - - - - 1,370,034 1,370,034 Net Income (6,258) (51,143) (2,195) (8,517) 2,205,095 (1,471,511) Net Income as a percentage of Consolidated Net Income - 2% - - (29%) 100% Average Loans - - - - - 15,262,408 Average Deposits - - - - (84,856) 8,872,805 |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Buenos Aires Rest of the Grupo Metropolitan Country Regional Credit Interna- YEAR ENDED DECEMBER 31, 2001: Galicia Branches Branches Head Office Cards tional -------------------------------- -------- ------------ ---------- ----------- --------------- --------- Net Financial Income 1,177 475,432 301,543 806,448 111,355 147,720 Net Income from Services (4) 315,989 172,652 94,182 311,368 19,473 Provision for Loan Losses - 213,374 178,814 440,309 151,415 24,602 Operating Income 1,173 578,047 295,381 460,321 271,308 142,591 Operating Expenses 7,465 498,500 339,456 167,312 253,871 76,697 Other Income (Loss) (2,170) 29,493 50,009 22,037 (180) 22,005 Minority Interest - - - - (4,383) 3,975 Pre-tax Income (8,462) 109,040 5,934 315,046 12,874 91,874 Income tax provision - 44,408 2,416 128,306 21,994 2,126 Net Income (8,462) 64,632 3,518 186,740 (9,120) 89,748 Net Income as a percentage of Consolidated Net Income (3%) 24% 1% 71% (4%) 34% Average Loans - 4,024,465 3,655,436 9,146,485 932,477 2,243,302 Average Deposits - 7,943,033 5,010,525 4,570,454 - 1,187,852 Overhead and Other Financial Other Equity Insurance Other Group's Corporate Consolidated YEAR ENDED DECEMBER 31, 2001: Businesses Investments Business Businesses Adjustments Total ------------------------------ --------------- ------------ --------- ------------- ----------- ------------ Net Financial Income (634) - 10,572 308 (393,254) 1,460,667 Net Income from Services 43,913 - (10,251) 4,618 (9,237) 942,703 Provision for Loan Losses - - - - - 1,008,514 Operating Income 43,279 - 321 4,926 (402,491) 1,394,856 Operating Expenses 29,672 - 20,486 6,104 (29,574) 1,369,989 Other Income (Loss) 5,341 (3,281) 20,450 (531) 277,711 420,884 Minority Interest (249) - (99) 42 (21,445) (22,159) Pre-tax Income 18,699 (3,281) 186 (1,667) (116,651) 423,592 Income tax provision 3,561 - - 483 (44,242) 159,052 Net Income 15,138 (3,281) 186 (2,150) (72,409) 264,540 Net Income as a percentage of Consolidated Net Income 6% (1%) - (1%) (27%) 100% Average Loans - - - - - 20,002,165 Average Deposits - - - - (98,627) 18,613,237 |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
37. SUBSEQUENT EVENTS
- On January 30, 2004, the Argentine Central Bank released Communique "A" 4084 establishing a change of criterion for the valuation of assets delivered to the public sector.
The most significant changes include the treatment applicable to assets delivered as collateral for advances granted by the Argentine Central Bank for the subscription of the bonds envisaged in sections 10, 11 and 12 of Decree No. 905/02. At the Bank's option, these assets may be excluded from the treatment foreseen in Communique "A" 3911 described in Note 2. In this case, those assets are to be recorded at the value admitted for purposes of the creation of guarantees, under the terms of section 15 of the above-mentioned Decree and Argentine Central Bank Communiques "A" 3717 and "A" 3756.
Communique "A" 4084 also contemplates that effective January 2004 past due and unpaid instruments issued by the public sector are to be recorded at the lower of the carrying value at March 31, 2004 or the value resulting from applying to the face value of those instruments, net of retirements or of those converted into tax options, as the case may be, the lower percentage resulting from applying the net present value method to promissory notes and bonds issued by the Fiduciary Fund for Provincial Development.
It has also been established that interest accrued since December 2001 on the public debt instruments eligible for the sovereign debt restructuring agreement must be derecognized.
The Bank has opted to value the assets used as collateral detailed below at the value admitted for purposes of providing the collateral.
1) 579,902 (face value) secured bonds (BOGAR), issued within the framework of Decree No. 1579/02 offered as collateral for the advance to be requested from the Argentine Central Bank for the subscription of the hedge bond mentioned in Note 1 and the exchange of deposits with the financial system, as established by Decree No. 1836/2002;
2) 153,331 Series 75 (VBY4) Argentine Republic External Notes (face value) at Badlar rate, and 127,141 Series 74 (VEY4) Argentine Republic External Notes (face value) at Survey rate, offered as collateral for the advance to be requested from the Argentine Central Bank for the subscription of the hedge bond
The analysis performed by the Bank showed that the adjustment mentioned in the fourth paragraph of this Note, established in section 5 of Communique "A" 4084, is not applicable for purposes of estimating the effects on the valuation of the instruments mentioned in point 2) above.
- On January 2, 2004, the Ordinary and Extraordinary Meeting of Shareholders of Grupo Financiero Galicia S. A. resolved to approve a capital increase for up to Ps. 149,000, taking it to Ps.1,241,407 under the terms of section 188, paragraph 2, of the Commercial Companies Law. This capital increase was intended for the acquisition or receipt as a contribution of subordinated negotiable obligations for up to US$ 100,000, or other debt securities to be issued by Banco de Galicia y Buenos Aires S.A., or other instruments representing receivables from the Bank, to be issued in exchange for the latter's due and payable debt under the terms of the restructuring of the foreign debt carried out by Banco de Galicia y Buenos Aires S.A.
To make the Bank's foreign debt restructuring possible, the Group approved a capital increase through the issuance of up to 149 million preferred shares, each of them mandatorily convertible into one of class
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
B shares on May 13, 2004, the first anniversary date of issuance (or, if earlier, on the occurrence of a change of control of Grupo Galicia). As a result of the exercises made by the existing shareholders in the preemptive rights offering, creditors opting for the equity participation offer received 87.8 million preferred shares and US$ 30 million in cash and the Group received approximately US$100 million of subordinated bonds in exchange for those shares and cash. The controlling shareholders assigned part of their preemptive and accretion rights to a trust established for the benefit of the Bank's creditors.
On May 18, 2004, the date of expiration of the period established for the CER/CVS compensation, the Bank did not request to participate in such compensation regime and made a new presentation before the Ministry of Economy and the Argentine Central Bank, restating its right to be compensated for the negative effects of the asymmetric indexation and formally challenging Resolution No. 302/04 of the Ministry of Economy.
The Bank settled the restructuring of its foreign debt, on May 18, 2004 (See note 1 - Situation of the Bank).
- As of May 18, 2004, maturities of the restructured debt of the Bank's head office in Argentina and its cayman branch were as follows:
2004.......................................................... Ps. 45,145 2005.......................................................... 32,246 2006.......................................................... 145,212 2007.......................................................... 290,425 2008.......................................................... 290,425 2009.......................................................... 290,425 Thereafter.................................................... 2,697,805 ------------- Ps. 3,791,683 ============= |
38. DIFFERENCES BETWEEN ARGENTINE CENTRAL BANK RULES AND PROFESSIONAL ACCOUNTING STANDARDS
The Group's accounting policies and financial statement presentation generally conform to the rules prescribed by the Argentine Central Bank which prescribes the reporting and disclosure policies for all banks in Argentina.
These rules differ in certain respects from generally accepted accounting principles in Argentina ("Argentine GAAP"). The rules of the Argentine Central Bank allow for certain of the Bank's investments in government securities to be carried at amortized cost, whereas Argentine GAAP, applicable to enterprises in general, requires such securities to be accounted for at market value.
Effective January 1, 2003 the Consejo Profesional de Ciencias Economicas de la Ciudad Autonoma de Buenos Aires (CPCECABA) issued Technical Pronouncements No. 16 to 21 and amended Technical Pronouncements No. 4 to 11 and No. 14. Those new and amended pronouncements resulted in new differences between Argentine Central Bank accounting rules and Argentine GAAP.
INVESTMENT SECURITIES
As of December 31, 2003 and 2002, the Group hads classified as investment securities, the portion of its BODEN 2012, received in compensation from the Argentine Central Bank. These securities are recorded at technical value and increased on the basis of interest accrued under the relative terms and conditions, and the balance in foreign currency is converted into pesos at the reference exchange rate published by the Argentine Central Bank on the last business day of the fiscal year. Under Argentine GAAP applicable
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
to enterprises in general, these securities should be marked to market with the resulting gain or loss reflected in the income statement. There has been limited activity in the trading of these securities and as such, the quoted market values may not represent the price of an actual sale between a willing buyer and a willing seller.
COMPENSATION TO BE RECEIVED FROM THE NATIONAL GOVERNMENT
As of December 31, 2003, the Group has accounted for BODEN 2012, recognizing the right to receive in compensation from the Argentine Central Bank, as "Compensation to be Received from the National Government," under "Other Receivables Resulting from Financial Brokerage". These assets are recorded at technical value increased on the basis of interest accrued under the relative terms and conditions, and the balance in foreign currency is converted into pesos at the exchange rate published by the Argentine Central Bank on the last business day of the fiscal year. In accordance with Law 25796, the Bank has recorded the estimated amount of the compensation for the negative effects on their equity derived from the application of the CER to deposits originally denominated in foreign currency and converted to pesos, and from the application of the CVS to certain loans under "Other Receivables Resulting from Financial Brokerage". The Bank has recorded the estimated amount of the asset to be received at technical value increased on the basis of interest accrued under the relative terms and conditions. Under Argentine GAAP,these assets should be accounted for at the market value of the securities to be received with the resulting gain or loss reflected in the income statement. There has been limited activity in the trading of these securities and as such, the quoted market values may not represent the price of an actual sale between a willing buyer and a willing seller.
SECURED LOANS
On November 6, 2001, the Group presented its offer in connection with the exchange of Argentine government securities for secured loans, as established by Decree No. 1387/01 issued by the Argentine government. The inception value of the secured loans was determined taking into account the exchange ratio established by the Ministry of Economy (face value plus interest accrued until November 6, 2001, less coupons receivable until November 30, 2001), whereas the securities delivered in exchange were written off at their book value, net of the servicing of principal and interest receivable between November 6 and 30, 2001. Under Argentine GAAP, that exchange should be accounted for at the market value of the securities exchanged with the resulting gain or loss reflected in the income statement.(see description in note 2.3)
ACCOUNTING DISCLOSURE OF EFFECTS GENERATED BY COURT DECISIONS ON DEPOSITS
As of December 31, 2003, Grupo Financiero Galicia carries an asset for Ps. 166,218 (original value of US$ 192,799 net of accumulated amortization of US$ 26,580) under "Intangible assets - Organization and development expenses", for the differences resulting from compliance with court decisions on reimbursement of deposits within the framework of Law No. 25,561, Decree No. 214/02 and complementary rules, as established by Argentine Central Bank Communique "A" 3916, which is being amortized over 60 months. Under professional accounting standards, such asset is to be recorded as a receivable and valued on the basis of the best estimate of the amount recoverable.
CONVERSION OF FINANCIAL STATEMENTS
The conversion to pesos of the financial statements of foreign branches for purposes of consolidation with the Bank's financial statements differs from applicable professional accounting standards (Technical Pronouncement No. 18). These standards require that:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
(a) the measurements in the financial statements to be converted to pesos that are stated in year-end foreign currency (current values, recoverable values) be converted at the balance sheet date exchange rate; and that
(b) the measurements in the financial statements to be converted to pesos that are stated in foreign currency of periods predating the closing date (for example: those which represent historical costs, income, expenses) be converted at the pertinent historical exchange rates, restated in year-end currency, when it is so required due to the application of Technical Pronouncement No. 17. Exchange differences arising from conversion of the financial statements will be treated as financial income or expence, as the case may be.
The application of this criterion, with the exception of point (a) above does not have a significant impact on the Bank's financial statements.
ALLOWANCE FOR LOAN LOSSES - NON-FINANCIAL PUBLIC SECTOR
Under Argentine Central Bank rules, banks must maintain reserves for loan losses in an amount appropriate to cover the risks underlying each bank, with exception to the public sector. Under Argentine GAAP, these loans should be provisioned according to the risk underlying this portfolio.
39. SUMMARY OF SIGNIFICANT DIFFERENCES BETWEEN ARGENTINE CENTRAL BANK RULES AND UNITED STATES ACCOUNTING PRINCIPLES
The following is a description of the significant differences between Argentine Banking GAAP and those applicable in the United States under generally accepted accounting principles ("U.S. GAAP"). References below to "SFAS" are to United States Statements of Financial Accounting Standards.
The differences below do not include the reversal of the adjustments to the financial statements for the effects of inflation required under Argentine Banking GAAP, as the application of inflation accounting represents a comprehensive measure of the effects of price level changes in the Argentine economy and as such, is considered a more meaningful presentation than historical-based financial reporting for U.S. GAAP purposes.
a. INCOME TAX
Argentine Central Bank regulations do not require the recognition of deferred tax assets and liabilities and therefore income taxes are recognized on the basis of amounts due in accordance with Argentine tax regulations. This method was applied to Banco Galicia. However, the Group and the Group's non-bank subsidiaries applied the deferred income tax method. As a result, the Group's non-bank subsidiaries recognized a deferred tax asset.
For the purposes of U.S. GAAP reporting, the Group applies SFAS No. 109 "Accounting for Income Taxes". Under this method, income taxes are recognized based on the liability method whereby deferred tax assets and liabilities are established for temporary differences between the financial reporting and tax bases of the Group's assets and liabilities. Deferred tax assets are recognized if it is more likely than not that such assets will be realized.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Deferred tax assets (liabilities) are summarized as follows:
DECEMBER 31, 2003 ---------------------------------------------------- SFAS 109 applied to SFAS 109 applied Argentine GAAP to U.S. GAAP balances adjustments SFAS 109 -------------- ---------------- --------------- Deferred tax assets Allowance for loan losses - private sector.................... 3,526 (21,029) (17,503) Allowance for loan losses - public sector..................... - 611,965 611,965 Compensation and hedge bonds.................................. (881,190) 892,732 11,542 Impairment of intangible assets............................... - 3,773 3,773 Liabilities................................................... (7,911) - (7,911) Impairment of real estate properties.......................... - 23,016 23,016 Loss carry forward............................................ 886,519 - 886,519 Provision for contingencies................................... 161,210 - 161,210 Other......................................................... (11,756) 149,214 137,458 ------------ --------------- --------------- Total gross deferred tax assets............................... Ps. 150,398 Ps. 1,659,671 Ps. 1,810,069 Deferred tax liabilities: Depreciation of fixed assets.................................. Ps. 18,891 Ps. - Ps. 18,891 Amortization of intangible assets............................. 25,508 (2,776) 22,732 ------------ --------------- --------------- Total gross deferred tax liabilities.......................... Ps 44,399 Ps. (2,776) Ps. 41,623 ------------ --------------- --------------- Net deferred income tax asset before valuation allowance ..... Ps. 194,797 Ps 1,656,895 Ps. 1,851,692 ------------ --------------- --------------- Valuation allowance .......................................... (156,445) (1,656,895) (1,813,340) ------------ --------------- --------------- Net deferred income tax....................................... Ps. 38,352 Ps. - Ps. 38,352 ------------ --------------- --------------- |
DECEMBER 31, 2002 ---------------------------------------------------- SFAS 109 applied to SFAS 109 applied Argentine GAAP to U.S. GAAP balances adjustments SFAS 109 -------------- ---------------- --------------- Deferred tax assets Allowance for loan losses - private sector.................... 294,369 (16,728) 277,641 Allowance for loan losses - public sector..................... - 527,363 527,363 Compensation and hedge bonds.................................. (1,271,222) 1,472,173 200,951 Impairment of intangible assets............................... - 10,888 10,888 Impairment of fixed assets and foreclosed assets.............. - 23,504 23,504 Liabilities................................................... 35,291 - 35,291 Provision for contingencies................................... 128,941 - 128,941 Other......................................................... (9,321) 15,561 6,240 Loss carry forward............................................ 1,230,668 - 1,230,668 ------------ --------------- --------------- Total gross deferred tax assets............................... Ps. 408,726 Ps. 2,032,761 Ps. 2,441,487 Deferred tax liabilities: Depreciation of fixed assets.................................. Ps. (1,612) Ps. - Ps. (1,612) Amortization of intangible assets ............................ (2,657) (78) (2,735) Foreign exchange loss ........................................ (54,132) - (54,132) ------------ --------------- --------------- Total gross deferred tax liabilities.......................... Ps. (58,401) Ps. (78) Ps. (58,479) ------------ --------------- --------------- Net deferred income tax asset before valuation allowance ..... Ps. 350,325 Ps. 2,032,683 Ps. 2,383,008 ------------ --------------- --------------- Valuation allowance........................................... (404,457) (2,032,683) (2,437,140) ------------ --------------- --------------- Net deferred income tax....................................... Ps. (54,132) Ps. - Ps. (54,132) ------------ --------------- --------------- |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, 2001 ----------------------------------------------------- SFAS 109 applied to SFAS 109 applied Argentine GAAP to U.S. GAAP balances adjustments SFAS 109 -------------- ---------------- --------------- Deferred tax assets Allowance for loan losses - private sector.................... 102,410 337,946 440,356 Allowance for loan losses - public sector..................... - 2,157,267 2,157,267 Amortization of intangible assets 9,274 37,291 46,565 Impairment of intangible assets............................... - 34,493 34,493 Allowance for equity in other companies....................... - 23,175 23,175 Foreign exchange loss......................................... - 598,296 598,296 Liabilities................................................... 15,406 - 15,406 Provision for contingencies................................... 23,132 - 23,132 Other......................................................... 20,304 (1,665) 18,639 Loss carry forward............................................ 235,471 - 235,471 ------------ --------------- --------------- Total gross deferred tax assets............................... Ps. 405,997 Ps. 3,186,803 Ps. 3,592,800 Deferred tax liabilities: Investments................................................... Ps. (51,889) Ps. 57,534 Ps. 5,645 Depreciation of fixed assets.................................. (16,202) - (16,202) ------------ --------------- --------------- Total gross deferred tax liabilities.......................... Ps. (68,091) Ps. 57,534 Ps. (10,557) ------------ --------------- --------------- Net deferred income tax asset before valuation allowance ..... Ps. 337,906 Ps. 3,244,337 Ps. 3,582,243 ------------ --------------- --------------- Valuation allowance........................................... (337,906) (3,244,337) (3,582,243) ------------ --------------- --------------- Net deferred income tax....................................... Ps. - Ps. - Ps. - ------------ --------------- --------------- |
The following table accounts for the difference between the actual tax provision and the amounts obtained by applying the statutory income tax rate in Argentina to income before income tax, calculated on the basis of U.S. GAAP for the years ended December 31, 2003, 2002 and 2001.
DECEMBER 31, ---------------------------------------------- 2003 2002 2001 ------------ ------------- ------------- Statutory income tax rate.......................................... 35% 35% 35% Tax provision computed by applying the statutory rate to the income before taxation calculated in accordance with U .S. GAAP.. Ps. 242,530 Ps. 171,120 Ps.(2,948,886) Tax exempt income.................................................. (827,978) (1,249,801) (469,426) Reversal of deferred income taxes under U.S. GAAP.................. - - 9,049 Reversal of deferred tax set-up under Argentine GAAP............... - - 44,869 Valuation allowance (1)............................................ 623,800 1,145,103 3,582,243 Other.............................................................. - - (4,880) ------------ ------------- ------------- Actual tax provision under U.S. GAAP............................... Ps. 38,352 Ps. 66,422 Ps. 212,969 ============ ============= ============= |
(1) Valuation Allowance: For the years ended 2002 and 2001, there was substantial doubt of the Group's ability to continue as a going concern. For the year ended 2003 the Group had significant accumulated tax losses and uncertainties with respect to the generation of taxable income in the near term. This situation constitutes significant negative evidence under FAS 109 as to the realizability of deferred tax assets and thus, a valuation allowance would be required for all deferred tax assets that are not assured of realization by either (1) carryback to prior years or (2) reversal of existing taxable temporary differences. For the years 2002 and 2001 the Group provided a full reserve of its deferred tax assets after netting the future reversal of temporary differences. Based on the Argentine Income Tax Law there
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
are no provisions that allow the Company to carryback tax losses to prior years. For the year ended 2003, the deferred tax asset of the credit card issuing companies was not reserved due to the fact that those companies had started generating income tax. Following the same principle above mentioned, the Group fully reserved its PMIT carryforward.
b. COMMISSIONS ON LOANS
Under Argentine Banking GAAP, the Bank does not defer certain loan origination costs relating to credit cards. In accordance with U.S. GAAP under SFAS 91, loan origination fees net of certain direct loan origination costs should be recognized over the life of the loan as an adjustment of yield.
c. INTANGIBLE ASSETS
Included in organization and development costs of the Bank are costs for compensation and severance payments to Bank employees as part of restructurings. These items are being amortized over 60 months. For U.S. GAAP purposes, these costs are expensed as incurred.
The Bank amortizes deferred expenses for setting up branches over the related lease agreements, a maximum of 60 months. Subsequent to the year ended June 30, 1999, in accordance with SOP 98-5 effective for fiscal years beginning after December 15, 1998, such start-up costs should be expensed as incurred.
Goodwill recorded on the purchase of regional credit card companies is being
amortized in 10 years for Argentine Banking GAAP purposes. Before the issuance
of SFAS 142 under U.S. GAAP, a 5 year amortization period was elected to
represent the period benefited by the intangible asset in accordance with APB
17. For the purposes of U.S. GAAP, goodwill is reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable. Such evaluation is based on various analyses including
undiscounted cash flow projections that consider circumstances that occurred
subsequent to December 31, 2001. For the reconciliation to U.S. GAAP, the Group
has recorded an impairment of goodwill in its financial statements as of
December 31, 2001.
For fiscal years beginning after December 15, 2001, SFAS 142 supersedes APB 17. This statement establishes that goodwill must no longer be amortized but rather must be tested for impairment at least annually or whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Amortization expenses, under Argentine Banking GAAP have been reversed for U.S. GAAP purposes.
Under U.S. GAAP SOP 98-1, effective for fiscal years beginning after December 15,1998, defines three stages for the costs of computer software developed or obtained for internal use: the preliminary project stage, the application development stage and the post-implementation operation stage. Only the second stage costs should be capitalized. Under Argentine Banking GAAP, the Bank capitalized costs relating to all three of the stages of software development.
Before the issuance of SAB 103, the Group, following the guidelines established by article 202 of the Commercial Companies Law, has deducted from the Share Issuance Premiums the organizational costs related to the exchange offer and the issuance of shares conducted in July 2000. Under U.S. GAAP and following the guidelines established by SAB 50, the organizational costs such as legal, printing and other costs related to the exchange offer and the issuance of shares are considered to be an intangible asset and a 5 year amortization period was elected to represent the period benefited by the intangible asset. The audit fees related to this these transactions have been expensed, in accordance with U.S. GAAP.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
In May 2003, the SEC issued SAB 103 related to the appropiate accounting treatment for costs incurred to register securities issued for the formation of one-bank holding companies which supersed SAB 50. Under SAB 103 exchange offer costs should be expensed as incurred as mentioned in SOP 98-5 "Reporting on the Costs of Start-Up Activities". Therefore the remaining outstanding balance related to the Exchange Offer costs have been expensed in the fiscal year ended december 31, 2003.
d. LOAN LOSS RESERVES
The Bank's accounting for its loan loss reserve differs in some respects with practices of U.S. based banks. The most significant differences follow:
(i) LOAN CHARGE OFFS AND RECOVERIES
The Bank records recoveries on previously charged-off loans directly to income and records the amount of charged-off loans in excess of amounts specifically allocated as a direct charge to the income statement. The Bank does not partially charge off troubled loans until final disposition of the loan, rather, the allowance is maintained on a loan-by-loan basis for its estimated settlement value. The banking industry practice in the United States is to account for all charge off and recovery activity through the allowance for loan loss account. Further, loans are generally charged to the allowance account when all or part of the loan is considered uncollectible. In connection with loans in judicial proceedings, resolution through the judicial system may span several years. Loans in judicial proceedings, greater than three years at December 31, 2003, 2002 and 2001, amounted to Ps. 195,003, Ps. 323,104 and Ps. 335,431, respectively. Under US GAAP purposes these loans were totally provisioned. The Bank also classified loans, many of which are in judicial proceedings as uncollectible, which amounted Ps.324,900, Ps. 198,200 and Ps. 217,500 as of December 31, 2003, 2002 and 2001, respectively, as uncollectible, although the Bank may hold preferred guarantees. Under U.S. GAAP these loans had been charged off.Therefore the balance of loans and allowance for loan losses would be decreased by these amounts. The Bank's practice does not affect the accompanying statements of income as the Bank's reserve contemplates all losses inherent in those troubled loans.
(ii) LOANS - NON-FINANCIAL NATIONAL PUBLIC SECTOR
During the fiscal year ended December 31, 2001, and as a consequence of Decree No. 1387/01, effective as of November 6, 2001, the Bank swapped part of its Argentine public-sector debt instruments, under the Promissory Note/Bond program, for secured loans.
As established by article 20 of the above mentioned decree, the conversion was made at the nominal value, at a rate of exchange of Ps. 1.0 = US$ 1.0 and in the same currency as that of the converted obligation.
The Argentine Central Bank provided that the difference between the nominal value of the secured loans and the book value of the public-sector debt instruments exchanged (in the case of securities, classified and valued as "investment accounts" or "for trading purposes", under Argentine Central Bank rules) must be credited to income and added to the recorded amount included in "Loans - To the non-financial public sector" on a monthly basis, in proportion to the term of each of the secured loans received.
In accordance with U.S. GAAP, specifically in the Emerging Issues Task Force No. 01-07 ("EITF 01-07"), satisfaction of one monetary asset (in this case a loan or debt security) by the receipt of another monetary asset (in the case a secured loan) for the creditor is generally based on the market value of the asset received in satisfaction of the debt (an extinguishment). In this particular case, the secured loan being received is significantly different in structure and in interest rates than the debt securities
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
swapped. Therefore, the fair value of the loans was determined on the balance sheet date based on the contractual cash flows of the loan received discounted at an estimated market rate. The estimated fair value of the loan received will constitute the cost basis of the asset. Any difference between the old asset and the fair value of the new asset is recognized as a gain or loss. The difference between the cost basis and amounts expected to be collected will be amortized on an effective yield basis over the life on the loan.
(iii) LOANS / BONDS - NON-FINANCIAL PROVINCIAL PUBLIC SECTOR
As of December 31, 2002, the Group offered to exchange certain loans to Argentine provincial governments for loans or securities of the Argentine national government, however the exchange had not been finalized until 2003. These loans were considered to be impaired under U.S. GAAP in accordance with Statement of Financial Accounting Standards No. 114. Accordingly, the Group established an allowance for loan losses on loans to Argentine provinces as of December 31, 2002.
In 2003, the Bank tendered in the exchange under Decree No.1579/02 all of its portfolio of loans to provincial governments and pursuant to the option provided by section 3, subsection k of the Decree, opted to receive promissory notes and therefore recorded in its balance sheet provincial secured loans, valued in accordance with Argentine Central Bank Communique "A" 3911, in the amount of Ps.3,473.7 million. This amount included Ps.22.0 million of a loan for which the exchange was pending completion as of December 31, 2003. The Bank received BOGAR for the provincial debt for which the exchange had been completed at the close of the fiscal year, despite having opted to receive promissory notes. At the date of these financial statements the Bank had not yet received the promissory notes.
As of December 31, 2003 for U.S. GAAP purposes and in accordance with EITF 01-07, satisfaction of one monetary asset (in this case a loan) by the receipt of another monetary asset (in this case BOGAR) from the creditor is generally based on the market value of the asset received in satisfaction of the debt. In this particular case, the BOGAR being received is significantly different in structure and in interest rates than the loans swapped. Therefore, such amounts should initially be recognized at their market value. The estimated fair value of the securities received will consitute the cost basis of the asset. Any difference between the old asset and the fair value of the new asset is recognized as a gain or loss. The difference between the cost basis and the amount expected to be collected will be amortized on an effective yield basis over the life of the bond.
These BOGAR are classified by the Bank for US GAAP purposes, as available for sale securities and subsequently recognized at market with the unrealized gain or loss recognized as a charge or credit to equity through other comprehensive income. In connection with estimating the fair value of the BOGAR, the Bank used quoted market values. There has been limited activity in the trading of these securities and as such, the quoted market values may not represent the actual price in a sale between a willing buyer and a willing seller.
(iv) IMPAIRED LOANS - NON-FINANCIAL PRIVATE SECTOR AND RESIDENTS ABROAD
For the purposes of reporting under U.S. GAAP, the Bank adopts Statement of Accounting Standards No.114, "Accounting for Creditors for Impairment of a Loan" ("SFAS 114") as amended by Statement of Financial Accounting Standards No. 118, "Accounting by Creditors for Impairment of a Loan - Income Recognition and Disclosures" ("SFAS 118"). SFAS 114, as amended, requires that the carrying value of an impaired loan be based on the present value of expected future cash flows discounted at the loan's effective interest rate or the fair value of the collateral, if the loan is collateral dependent. Under SFAS 114, a loan is considered impaired when, based on current information, it is probable that the borrower will be unable to pay contractual interest or principal payments as scheduled in the loan agreement.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
SFAS 114 applies to all loans except smaller-balance homogeneous consumer loans, loans carried at fair value or the lower of cost or fair value, debt securities, and leases.
The Bank applies SFAS 114 to all commercial loans classified as " With problems", "Insolvency Risks" and "Uncollectible" or commercial loans more than 90 days past due. The Bank specifically calculates the present value of estimated cash flows for commercial loans in excess of Ps.200,000 and more than 90 days past due. For commercial and other loans in legal proceedings, loans in excess of Ps.200,000 are specifically reviewed either on a cash-flow or collateral-value basis, both considering the estimated time to settle the proceedings.
The following information relates to the Bank's impaired loans:
DECEMBER 31, ------------------------------------------------------ 2003 2002 2001 -------------- --------------- ----------------- Total impaired loans............................................ Ps. 1,852,711 Ps. 2,231,097 Ps. 2,941,136 Average impaired loans during the year.......................... 2,110,583 2,991,688 2,612,698 Total not impaired loans under US GAAP.......................... 49,492 104,244 - Cash payments received for interest on impaired loans, Recognized as income.......................................... 3,339 1,660 3,211 Allowance for impaired loans under SFAS 114..................... 953,767 1,031,492 1,282,773 |
In addition, the Bank has performed a migration analysis for consumer loans and all performing commercial loans following the SFAS 5 considerations, as detailed in, "Loan loss reserves under U.S. GAAP", in the selected statistical information.
As of December 2002, the result of the migration analysis, showed that the Bank has provided for loan losses in excess of this analysis for Ps.112,976. For U.S. GAAP purposes, this amount of provision has been reversed.
As of December 31, 2003 and 2001, the result of the migration analysis, shows that the bank provided for loan losses towards the range established by the analysis described above .
(v) CREDIT CARD LOANS
The Group establishes its reserve for credit card loans based on the past due status of the loan. All loans greater than 180 days have been reserved at 50%, in accordance with the rules established by the Argentine Central Bank. Under U.S. GAAP, loans greater than 180 days past due should be charged off. As a result, under U.S. GAAP the charge offs of the credit card portfolio has been increased as of December 31, 2003, 2002 and 2001, by Ps. 4,985 , Ps. 31,928 and Ps. 71,613, respectively.
e. GOVERNMENT SECURITIES AND OTHER INVESTMENTS
(i) INVESTMENT SECURITIES
The Bank's government securities and certain other securities that are included under the caption "investment accounts" under Argentine Central Bank rules, are considered as "available for sale" under U.S. GAAP.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The gross gain on the sales of government securities considered as "available" for sale" under U.S. GAAP amounted to Ps.2,091 for the fiscal year ended December 31, 2001; and the gross losses on sales from government securities classified as "available for sale" under U.S. GAAP amounted to Ps.(15) for the fiscal year ended December 31, 2001.
As of December 31, 2003 and 2002 there were no sales of government securities considered as "available for sale" under U.S. GAAP.
Argentine Republic External Notes
Under US GAAP, Argentine Republic External Notes are classified as available for sale securities and recorded at market value, with the respective gain or loss being charged to the results for the year or to equity through "Other Comprehensive Income," depending on whether it represents an "other than temporary decline" in their value or not. The Bank determined that the carrying values as of December 31, 2002 and 2001 were a reasonable estimate of their market values primarily from their ability and practice of offsetting amounts against taxes, including value-added taxes.
Subsequently, during the fiscal year ended December 31, 2003, the national government suspended the regime that granted taxpayers the possibility of meeting their tax obligations with public debt securities. The Bank concluded that these obligations were impaired and an other than temporaly loss amounting to 378,996 was recognized.
In order to estimate fair value of these securities the Bank considered the collateral value assigned to Argentine Republic External Notes by the Argentine Central Bank for purposes of extending credit for the purchase of BODEN 2012.
(ii) HEDGE BONDS ISSUED IN CONNECTION WITH THE COMPENSATION FOR FOREIGN CURRENCY POSITION, COMPENSATORY BONDS RECEIVED AND TO BE RECEIVED IN CONNECTION WITH THE COMPENSATION FOR "ASYMMETRIC PESIFICATION" AND COMPENSATION TO BE RECEIVED IN CONNECTION WITH THE ASYMMETRIC INDEXATION.
Argentine Central Bank's Communique "A" 3650 established the regulations necessary to implement the provisions of Decree No.905/02 in connection with the compensation of the negative effects of the conversion into pesos at different exchange rates of financial institutions' assets and liabilities and the resulting foreign currency mismatches left in their respective balance sheets. The Bank informed the Central Bank in three communications each following the applicable Communique issued by the Argentine Central Bank of the amount of bonds it believed it was entitled to under rules issued by the Argentine Central Bank (the last correspondence being January 2003). The amount of compensation so determined amounted to US$ 1,021.8 million (compensatory bond) and US$1,232.2 million (hedge bond). The Argentine Central Bank deposited in October 2002 compensatory bonds in the amount of US$ 200.8 million to the account of the Bank. The amount of the hedge bond to be subscribed and compensatory bonds not received are included as "Other Receivables Resulting from Financial Brokerage - Compensation to be Received from the National Government." In order to purchase the subscribed hedge bond, the Bank may enter into a credit agreement with the Argentine Central Bank, with interest payable at CER plus 2%. In the case of the hedge bond and the related financing to be obtained from the Argentine Central Bank, the transaction is retroactive to February 3, 2002. The Bank can withdraw its request to purchase the hedge bonds prior to the approval of the Argentine Central Bank and prior to the execution of the transaction.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
In connection with the Bank's right (but not the obligation) to purchase the hedge bond, the Bank has recognized the right to purchase the hedge bond at their equivalent value as if the Bank had the associated bonds in their possession, and recognized the associated liability to fund the hedge bonds as if the Bank had executed the debt agreement with the Argentine Central Bank. The receivable is denominated in U.S. dollars bearing interest at Libor whereas the liability to the Argentine Central Bank is denominated in pesos with interest being accrued at CER plus 2%, each retroactive to February 3, 2002.
Under U.S. GAAP, the right to purchase the hedge bond is not considered an asset under Financial Accounting Standards Board Statement of Concepts No,, 6 Elements of Financial Statements (CON 6). Under CON 6, assets are defined as "...probable future economic benefits obtained or controlled by an entity as a result of past transactions or events". In addition, one of the three essential characteristics of an asset include that an entity can obtain the benefit and controls others' access to it. As of December 31, 2003, the Bank cannot obtain the benefit of the hedge bond to be purchased until such time as the transaction becomes approved by the Argentine Central Bank and the Bank remits funds to the Argentine Central Bank. The liability under U.S. GAAP would be recognized when the Bank enters into the financing arrangement.
In connection with the compensatory bonds received or receivable by the Bank, such amounts should initially be recognized at their market value (limited to the amounts of the loss suffered by the Bank in connection with the" asymmetric pesification and asymmetric indexation"). Compensatory bonds in the Bank's possession are classified as available for sale and are carried at estimated market value with the unrealized gain or loss recognized as a charge or credit to equity through other comprehensive income. In connection with estimating the fair value of the compensatory bonds, the Bank used quoted market values. There has been limited activity in the trading of these securities and as such, the quoted market values may not represent the actual price in a sale between a willing buyer and a willing seller.
Under US GAAP, the activity of the compensation bonds have been reflected in the year results considering that the compensation bonds were adjusted to its market value. The activity includes (1) the effect of the exchange rate between the argentine pesos and the US dollars, (2) the cancellation of certain bonds related to the disputes with the Central Bank and (3) the payments made in satisfaction to the deposits held in Uruguay.
f. ITEMS IN PROCESS OF COLLECTION
The Bank does not give accounting recognition to checks drawn on the Bank or other banks, or other items to be collected until such time as the related item clears or is accepted. Such items are recorded by the Bank in memorandum accounts. U.S. banks, however, account for such items through balance sheet clearing accounts at the time the items are presented to the Bank.
The Group's assets and liabilities would be increased by approximately Ps.598,544, Ps.480,774 and Ps.2,569,673, had U.S. GAAP been applied at December 31, 2003, 2002 and 2001, respectively.
g. DERIVATIVE INSTRUMENTS
Under Argentine Central Bank rules, the Bank accounts for derivatives in memorandum accounts off the balance sheet.
Under U.S. GAAP, the Bank accounts for derivative financial instruments in accordance with SFAS 133 as amended by SFAS 137, SFAS 138 and SFAS 149.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
SFAS No. 133 establishes the standards of accounting and reporting derivative
instruments, including certain derivative instruments instead within contracts
(collectively referred to as derivatives) and hedging activities. This Statement
requires institutions to recognize all derivatives in the balance sheet, whether
as assets or liabilities, and to measure those instruments at their fair value.
If certain conditions are met, a derivative may be specifically designated as
(a) a hedge for the exposure to changes in the fair value of a recorded asset or
liability or unrecorded firm commitment, (b) a hedge for the exposure. If such a
hedge designation is achieved then special hedge accounting can be applied for
the hedged transactions, that will reduce the volatility in the income statement
to the extent that the hedge is effective. In order for hedge accounting to be
applied the derivative and the hedged item must meet strict designation and
effectiveness tests.
As of December 31, 2001 the Group had not designated any of its derivatives as fair value, cash flow or foreign currency hedges in accordance with the provisions of SFAS 133. Therefore, under the provisions of SFAS 133, the derivatives were accounted for at fair value in the balance sheet and the unrealized gains and losses on those derivatives were accounted for in the income statement.
As of December 31, 2002, the book value of the option contracts, is believed by management to approximate fair value.
As of December 31, 2003, the Group has no derivative contracts under U.S. GAAP.
The written put options mentioned in note 30 to these financial statements are
considered a guarantee for U.S. GAAP purposes and it had been valuated under FIN
45. ( see note 30 and 39.p. )
h. FORWARD CONTRACTS IN FOREIGN CURRENCY
Apart from the valuation differences for derivative financial instruments that have been discussed above the Bank accounts for forward foreign currency contracts by recognizing a receivable and a payable for the currencies for which it will make a gross settlement.
The Bank's assets and liabilities would be decreased by approximately Ps.138, Ps.675 and Ps. 376,026 had U.S. GAAP been applied as of December 31, 2003, 2002 and 2001, respectively.
i. COMPENSATION RELATED TO THE PAYMENT OF DEPOSITS
Financial institutions have asked to the government that they be compensated for the losses generated from the payment of deposits pursuant to judicial orders at the free market exchange rate, which was greater than that established by the government for conversion into pesos the financial institutions' assets and liabilities.
Through Communique "A" 3916, the Argentine Central Bank allowed the recording of an intangible asset for the difference between the amount paid by financial institutions pursuant to judicial orders and the amount resulting from the conversion into pesos of the dollar balance of the deposits reimbursed at the Ps.1.40 per US dollar exchange rate (adjusted by CER and interest accrued until the date of the reimbursement). The corresponding amount must be amortized over 60 months beginning April 2003. As of December 31, 2003, the amount recorded under "Intangible Assets", net of accumulated amortization, was Ps.487,020. As of December 31, 2002, this difference has been recorded under "Other Receivables resulting from Financial Brokerage amounting to Ps.446,756.
As of the date of preparation of these financial statements, the Supreme Court has not taken any measures to compensate for the relative issues.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Under U.S. GAAP, the right to obtain this compensation is not considered an asset under Financial Accounting Standards Board Statement of Concepts No. 6 Elements of Financial Statements (CON 6). Under CON 6, assets are defined as "...probable future economic benefits obtained or controlled by an entity as a result of past transactions or events". In addition, one of the three essential characteristics of an asset include that an entity can obtain the benefit and controls others' access to it. As of December 31, 2003, the Bank cannot obtain the benefit of the compensation until such time as the compensation becomes approved by the national government and the Argentine Central Bank.
j. TRANSFERS OF FINANCIAL ASSETS
Financial trust "Galtrust I"
The financial trust "Galtrust I" was created in October 2000 in connection with the securitization of provincial loans for a total amount of Ps.1,102 million. The securitized loans were from the portfolio of loans granted to provincial governments, guaranteed by the federal tax revenues shared with the provincial governments. This trust was recorded under Argentine Central Bank rules in the "Other Receivables from Financial Brokerage", account in the financial statements and its balance as of December 31, 2003, 2002 and 2001, was Ps.646 million, Ps.686 million and Ps.652 million, respectively. The Bank considers this transaction as a sale under U.S. GAAP, in accordance with FAS 140. Galtrust I debt securities and certificates retained by the Bank are considered as "available for sale securities" under U.S. GAAP and the unrealized gains (losses) on these securities are reported as an adjustment to shareholders' equity, unless unrealized losses are deemed to be other than temporary in accordance with Emerging Issues Task Force No. 99-20. The unrealized loss on the retained interests at December 31, 2001 has been deemed to be other than temporary and such loss has been charged to income. The retained interests were initially recorded based on their allocated book value using the fair value allocation method.
During 2002, the portfolio of loans included in and the related retained interest in Galtrust I were subject to the pesification described in Note 1. As a result the retained interest in the trust was converted to pesos at an exchange rate of 1.40 to 1 and the interest rate for their debt securities changed to CER plus 2%. During 2003 Galtrust I had swapped its provincial loans for Secured Bonds (BOGAR). (See Note 39 d.iii)
For purposes of estimating the fair value of the retained interests in the securitization trusts valuation models were used which consider certain assumptions in estimating future cash flows and a rate under which the cash flows are discounted.
The significant assumptions include:
Cumulative prepayment rate estimated based on the prepayment history of similar loans. This rate was equivalent to 1.52% as of October 2000, December 31, 2000, December 31, 2001 and December 2002.
As of December 31, 2001, there had been no experience of losses on these loans. The credit risk reflected by the subordination of the B and C note was taken into account in the discount rate applied by the Bank. The discount rates used as of December 2003, 2002 and 2001 were as follows:
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, DECEMBER 31, DECEMBER 31, 2003 2002 2001 DISCOUNT RATE FOR: ---- ---- ---- Galtrust I Class B Debt Securities 11%(c) 7%(b) 39.2 %(a) Galtrust I Participation Certificates 11.5%(c) 7%(b) 39.2 %(a) |
(a) As of December 31, 2001, the rate is based upon the Bank's estimate of comparable rates of discount used in similar rated bonds in Argentina.
(b) As of December 31, 2002, the discount real rate used is based on CER plus 700 basis points (no similar bonds existed at December 31, 2002).
(c) As of December 31, 2003, the rate is based upon the Bank's estimate of comparable internal rates of return of other CER-adjusted bonds.
As of December 31, 2003 , if the discount rate used above was to increase by 300 and 600 basic points the value of these securities would have decreased by Ps.50,467 and Ps.88,383, respectively.
Financial trust "Galtrust II, III, IV, V" and "Galicia Mortgage Loans"
As described in Note 34 of the Group's financial statements, on December 17, 2001 and April 2002, the Bank entered into securitization transactions where the Bank established five different trusts and transferred to the trusts ownership of mortgage loans in exchange for debt securities and residual interests in the trusts.
These transfers would not be considered as a sale for U.S. GAAP purposes. For Argentine Banking GAAP purposes, these retained interests are accounted for at cost plus accrued interest for the debt securities, and the equity method is used to account for the residual interest in the trusts. For U.S. GAAP purposes, these trusts would not qualify as "Qualified Special Purpose Entities" under SFAS 140. Therefore, and following the guidelines of EITF Topic D-14 and EITF 90-15, these trusts should be reconsolidated. Accordingly, the Group value these loans under SFAS 5, for purposes of determining its loan loss reserve.
On December 26, 2002 the "Galtrust III and IV" financial trusts were terminated, and the loan portfolio of those trusts have been incorporated to the Bank's loan portfolio. The Bank has performed a migration analysis for these consumer loans, which shows that the book value is a reasonable estimate of it's fair value.
Financial Trust "Secured Loans"
As part of the implementation of the Galicia Capitalization and Liquidity Plan, these "Secured Loans" trust was created. Under this trust, secured loans for Ps. 108,000 were transferred, and Ps.81,000 in cash and certificate of participation for Ps. 27,000 were received in exchange.
This transfer would not be considered as a sale for US GAAP purposes. Under Argentine Banking GAAP, the certificates of participation are accounted for by the equity method. For US GAAP purposes, this trust would not qualify as "Qualified Special Purpose Entity" under SFAS 140. Therefore, and following the guidelines of EITF Topic D-14 and EITF 90-15, this trust should be reconsolidated, at its book value before the transfer to the trust (see Note 39.d.(ii))
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
k. ACCEPTANCES
Under Argentine Banking GAAP, acceptances are accounted for in memorandum accounts. Under U.S. GAAP, third party liability for acceptances should be included in "Other Receivables Resulting from Financial Brokerage" representing Bank customers' liabilities on outstanding drafts or bills of exchange that have been accepted by the Bank. Acceptances should be included in "Other Liabilities Resulting from Financial Brokerage" representing the Bank's liability to remit payment upon the presentation of the accepted drafts or bills of exchange.
The Group's assets and liabilities would be increased by approximately Ps.22,354, Ps.105,760 and Ps.154,668, had U.S. GAAP been applied as of December 31, 2003, 2002 and 2001, respectively.
l. YEAR 2000 COSTS
Under Argentine Banking GAAP, costs related to the Year 2000 project have been capitalized. Under U.S. GAAP costs relating to the Year 2000 project arising from the modification of existing systems are expensed as incurred.
m. FOREIGN EXCHANGE DIFFERENCE
At December 31, 2001, the official exchange rate between the U.S. dollar and the Argentine peso was 1 to 1 and for Argentine Banking GAAP purposes, this rate was used to translate all U.S. dollar denominated assets and liabilities at December 31, 2001.
For U.S. GAAP purposes, foreign currency transactions should be translated at the applicable rate at which those particular transactions could be settled at the balance sheet date. In anticipation of an announced devaluation, "exchange houses" in Argentina (used for limited personal transactions and not for settling business transactions) started exchanging dollars at 1.4 or more pesos to the dollar prior to December 31, 2001. Such exchange houses were closed at December 31, 2001. Through January 10, 2002, no transactions were conducted in U.S. dollars and there was no exchangeability between the peso and the dollar. Under Statement of Accounting Standards No. 52, if the exchangeability between two currencies is temporarily lacking at the balance sheet date, the first subsequent rate at which exchanges could be made is used for translating foreign currency transactions. In this case, the January 11, 2002, exchange rate of Ps.1.6 = US$ 1.0 was the first available rate after year end and thus that rate was used for U.S. GAAP purposes to translate U.S. dollar denominated assets and liabilities at December 31, 2001.
In addition, the Group's equity holdings in Argentine companies were similarly adjusted for its proportional effect of applying the Ps.1.6 = US$ 1 exchange rate to the U.S. dollar denominated assets and liabilities of such companies at December 31, 2001.
As of December 31, 2003 and 2002 under Argentine Banking GAAP, foreign currency assets and liabilities are stated in pesos, using the U.S. dollar rate of exchange set by the Argentine Central Bank prevailing at the close of operations on the last business day of each month.
n. IMPAIRMENT OF REAL ESTATE PROPERTIES AND FORECLOSED ASSETS
In accordance with Statement of Accounting Standards No. 144, "Impairment of Long-lived Assets", such assets are subject to: recognition of an impairment loss if the carrying amounts of those assets are not
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
recoverable from their undiscounted cash flows and an impairment loss measured as the difference between the carrying amount and fair value of the assets.
The Group evaluates potencial impairment loss relating to long-lived assets by comparing their unamortized carrying amounts with the undiscounted future expected cash flows genereted by the assets over the remaining life of the assets. If the sum of the expected future undiscounted cash flows is less than the carrying amount of the asset, a loss is recognized for the difference between the fair value and carrying value of the assets. Testing whether an asset is impaired, and measuring the impairment loss is performed for asset groupings at the lowest level for which there are indentifiable cash flow that are largely independent of the cash flows generated by other asset groups.
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. In 2002, the Group determined that the uncertainty of the Argentine economic situation had a significant impact on the recoverability of its long-live assets and evaluated its properties for impairment. An impairment loss was recorded in 2002.
Foreclosed assets are carried at the lower of cost or market. In 2002, the Group recorded a valuation allowance reflecting a decrease in the market values of its foreclosed properties.
In 2003, no additional impairment were recorded in real estate properties and foreclosed assets. The amortization in 2003 of these assets impaired in 2002 under Argentine GAAP, has loan reversed for U.S. GAAP purposes.
o. EQUITY INVESTMENTS IN OTHER COMPANIES
Under Argentine Banking GAAP, the equity investments in controlled companies are accounted for under the equity method. The remaining investments have been accounted for under the cost method, taking their equity method value as a limit in book value.
For U.S. GAAP purposes, under SAB 59, the Group should determine if any indicators are present that may indicate the fair value of the investment has been negatively impacted during the fiscal year. If it is determined that the fair value of an investment is less than the related company's value, an impairment of the investment must be recognized.
As of December 31, 2003, the Group evaluated their investments and determined that the estimated fair value of certain investments was lower than the respective book value. Furthermore, based on all available evidence the Group concluded that the carrying amount of the investment will not be recoverable within a reasonable period of time. As a consequence, the impairment was deemed other than temporary.
p. GUARANTEES
Financial guarantee - Exchange of deposits with the financial system II
Pursuant to the decree 1836/02 and the Argentine Central Bank communique "A" 3828, the Bank entered into and exchange offer to exchange restructured deposit certificates ("RDC") for BODEN 2005, 2006, 2012 and 2013. The BODEN offered to the holders of the RDC are unsecured government bonds denominated in US dollars. As a part of the restructuring, the Bank offered to guarantee the payment of the BODEN to the holders of the RDC at a price equal to Ps 1.40 per US dollar adjusted by applying the accumulated CER from February 3, 2002 to the expiration date of the BODEN. The price cannot exceed the Argentine pesos per US dollar free exchange rate at the expiration date of the BODEN.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Other Financial Guarantees
During 2003 the Company entered into different agreements to guarantee lines of credit of customers amounting to Ps. 222,324. The Bank guarantees the quarterly amortization of the debt. As of December 31, 2003 guarantees granted by the Bank amounted to Ps. 44,395.
As of December 31, 2003, the Group maintains the following guarantees:
ESTIMATED MAXIMUM PROCEEDS CARRYING POTENTIAL FROM COLLATERAL AMOUNT PAYMENTS RECOURSE LIABILITY ----------- --------------- ------------ Exchange of deposits with the financial system II Ps. 165,411 - Ps. 69,668 Other Financial guarantees Ps. 44,395 Ps. 3,040 Ps. 11,742 ----------- ---------- ------------ Ps. 209,806 Ps. 3,040 Ps. 81,410 =========== ========== ============ |
The maximum potential payments represent a "worse-case scenario", and do not necessarily reflect expected results. Estimated proceeds from collateral and recourse represent the anticipated value of assets that could be liquidated or received from other parties to offset the Company's payments under guarantees.
Under Argentine Banking GAAP, the Bank provisioned the guarantees that are probable to be honored. The amount provided under Argentine GAAP amounted to Ps. 9,651.
Under US GAAP, effective January 1, 2003 the Bank adopted FASB interpretation No. 45 "Guarantor's Accounting and Disclosures Requirements for Guarantees, including Indirect Guarantees of Indebtedness of Others". As of December 31, 2003, the Bank recognized a liability for the fair value of the obligations assumed. The additional amount to be recognized for US GAAP amounted to Ps.71,759.
q. MINORITY INTEREST
The minority interest represents the effect of the US GAAP adjustments in the Group,s consolidated subsidiaries. For US GAAP purposes the shareholders' equity is negative. Therefore, the effect of the US GAAP adjustments related to the minority interest is recognized up to the amount reflected in minority interest for Argentine Banking GAAP.
FINANCIAL ASSISTANCE GRANTED BY THE ARGENTINE CENTRAL BANK
In connection with liquidity crisis in Argentina, the Argentine Central Bank loaned Banco Galicia approximately 5.4 billion pesos at December 31, 2002. This loan was renewed monthly, with interest payable based on 64% of the 30-day Lebac rate (short term government rate).
In March, 2003, the Argentine Central Bank, granted a voluntary restructuring plan whereupon financial institutions could extend the due date of the debt for a period of 70 months. In addition, the interest rate on outstanding debt automatically became CER (equivalent to the consumer price index) plus 3.5% whether or not a financial institution participated in the restructuring. The requirements to be eligible for maturity extension was that the financial institution identified and pledged collateral that matched the cash requirements of the outstanding loan and that the financial institution before July 31, 2003, present their foreign debt restructuring proposal to the Central Bank. Each of these submissions must be
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
approved by the Central Bank. Subsequently, the Argentine Central Bank amended the restructuring plan that allowed the maturity date to extend up to 120 months, subject again to providing acceptable collateral that matched the cash requirements of the outstanding loan and that the financial institution present their foreign debt restructuring proposal be updated. Each of these actions had to be approved by the Central Bank to become effective.
On November 28, 2003, the Financial System's Restructuring Unit (Unidad de Reestructuracion del Sistema Financiero, ), the regulatory body responsible for restructuring the Argentine financial system post crisis, informed the Bank that it had authorized the Argentine Central Bank to extend the maturity of the Bank's debt with the Argentine Central Bank for liquidity support by up to 120 monthly installments in accordance with the repayment schedule presented by the Bank to the Argentine Central Bank and under the provisions of Decree No. 1262/03.
On December 3, 2003, the Argentine Central Bank informed the Bank that, through its Resolution No. 460/03, the Board of Directors of the Argentine Central Bank had approved the terms and conditions of the proposed restructuring of the head office's and the Cayman Branch's foreign debt.
On February 3, 2004, the Argentine Central Bank informed the Bank that it had approved the request made by the Bank under Decree No.739/03, and modified by Decree No.1262/03, for the repayment of the debt for liquidity support under the terms proposed by the Bank over a 92 month period. Therefore, the schedule to repay the debt in 92 monthly installments began March 2004.
For US GAAP purposes the accounting for this transaction is effective with the approval by the Central Bank on February 3, 2004. The Bank's schedule comprises the repayment of the debt in 92 monthly installments beginning in March 2004, with a fixed annual interest rate of 3.5%.
Although this is a 2004 transaction, based on facts and circumstances the financial assistance granted by the Argentine Central Bank was deemed to be a non trouble debt restructuring since there are no concessions granted to the Bank based on the guidelines established by the EITF 02-4 and FAS 15. Accordingly, the Bank followed EITF 96-19 and is presently evaluating the impact of the restructuring under U.S. GAAP.
Under Argentine Banking GAAP the restructuring was accounted for the period ended December 31, 2003 and no gain or loss was recognized in the transaction.
RESTRUCTURING OF THE FOREIGN DEBT
On May 18, 2004, the restructuring of the foreign debt of the Bank's head office
and of its Cayman Branch was completed. At the expiration date of the exchange
offer made by the Bank to carry out the restructuring, the aggregate principal
amount of the Bank's debt subject to the restructuring amounted to US$1,344.7
million. The Bank offered different options to restructure its debt including
the payment of cash, the exchange of BODEN as full consideration of debt, the
issuance of new debt with different features and maturities and the issuance of
shares. Management is presently evaluating the impact of the restructuring under
US GAAP.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
CONSOLIDATED NET INCOME
DECEMBER 31, -------------------------------------------------- 2003 2002 2001 -------------- --------------- ------------- Net income as stated.......................................................... Ps. (217,059) Ps. (1,471,511) Ps. 264,540 Loan origination fees and costs: Credit card costs (Note 39b.).............................................. (46) (11,257) 3,660 Intangible assets(Note 39c.): Capitalized costs for compensation to Bank employees....................... - - 302 Amortization of deferred expenses for setting up of branches............... 9,290 31,747 11,525 Goodwill amortization...................................................... 32,701 34,108 (18,111) Goodwill impairment........................................................ 4,705 67,443 (98,552) Year 2000 costs (Note 39l.)................................................... 17,288 3,006 3,006 Software costs (Note 39c.).................................................... 2,285 6,709 (1,574) Equity investments in other companies - Impairment (Note 39o.)................ (37,879) - - Loss on exchange of National Public Debt (Note 39d(ii))....................... 176,778 2,040,693 (3,359,413) Provincial Public Debt (Note 39d(iii))....................................... (344,900) 986,584 (2,243,571) Loan impairment - private sector (Note 39d(iv))............................... (14,652) 973,665 (871,853) Loan impairment - credit cards (Note 39d(v)) ................................. 26,943 39,685 (71,613) Derivative instruments (Note 39g)............................................. - (945) (17,317) Amortization of organization costs on exchange offer (Note 39c)............... 15,433 (4,687) (4,687) Organization costs related to the exchange offer (Note 39c)................... 24,804) - - Impairment / loss on available for Sale securities (Note 39j)................. - 303,983 (559,859) Government Securities: Compensatory Bond received (Note 39e(ii)).................................. (305,832) (381,716) - Compensatory Bond to be received (Note 39e(ii))............................. 1,250,872 (1,587,482) - Hedge Bond (Note 39e(ii))................................................... 616,258 (1,769,948) - Compensation related to the payment of deposits (Note 39i).................. (40,264) (446,756) - Impairment of other available for sale Securities (Note 39e(i)) .............. (377,867) - - Foreign exchange difference (Note 39m)........................................ - 1,709,414 (1,709,414) Foreign exchange difference in equity investments in other companies (Note 39m.).................................................................. - 67,472 (67,472) Impairment of real estate properties and foreclosed assets (Note 39n.)........................................................................ - (67,155) - Real estate properties asset amortization (Note 39n.)......................... 1,395 - - Recognition for the fair value of obligations assumed under Financial guarantee issued (Note 39p).................................................. (71,759) - - Reversal of deferred taxes under Argentine GAAP (Note 39a).................... 38,942 - (44,869) Deferred taxes, net (Note 39a)................................................ - - (9,049) Presumptive minimum income tax (Note 39a)..................................... (38,663) (11,804) - Minority interest (Note 39q).................................................. 12,131 (88,756) 155,970 -------------- --------------- ------------- Net income (loss) in accordance with U.S. GAAP................................ 731,296 422,492 (8,638,351) Basic net income (loss) per share in accordance with U.S. GAAP (Note 24)...... 0.669 0.387 (7.908) Average number of shares outstanding (in thousands) (Note 24)................. 1,092,407 1,092,407 1,092,407 Diluted net income (loss) per share in accordance with U.S. GAAP (Note 24).... 0.669 0.387 (7.908) -------------- --------------- ------------- |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
CONSOLIDATED SHAREHOLDERS' EQUITY
DECEMBER 31, -------------------------------------------------- 2003 2002 2001 -------------- --------------- ------------- Shareholders' equity as stated................................................ Ps 1,462,337 Ps. 1,638,637 Ps. 3,103,570 Loan origination fees and costs (Note 39b.)................................... 1,755 1,801 13,058 Intangible assets (Note 39c.): Amortization of deferred expenses for setting up of branches................ (13,122) (22,412) (54,159) Goodwill amortization....................................................... 7,930 (24,771) (43,254) Goodwill impairment......................................................... (10,779) (15,484) (98,552) Software costs.............................................................. (141) (2,426) (9,136) Equity investments in other companies - Impairment (Note 39o.)................ (37,879) - - Loss on exchange of National Public Debt(Note 39d(ii))........................ (1,141,943) (1,318,721) (3,359,413) Provincial Public Debt (Note 39d(iii))........................................ (1,357,163) (1,256,987) (2,243,571) Loan impairment - private sector (Note 39d(iv))............................... 65,068 79,720 (893,945) Loan impairment - credit cards (Note 39d(v)).................................. (4,985) (31,928) (71,613) Government securities: Compensatory Bond received (Note 39e(ii))................................... (573,342) (402,021) - Compensatory Bond to be received (Note 39e(ii))............................. (336,610) (1,587,482) - Hedge Bond (Note 39e(ii))................................................... (1,153,690) (1,769,948) - Compensation related to the payment of deposits (Note 39i.)................. (487,020) (446,756) - Impairment of available-for-sale securities (Note 39e(i))................... (378,996) (1,129) - Derivative instruments (Note 39g)............................................. - - 945 Amortization of organization costs related to the exchange offer (Note 39c) .. - (15,433) (10,746) Organization costs related to the exchange offer (Note 39c)................... - 24,804 24,804 Unrealized gain or loss on Galtrust I securities (Note 39j)................... (391,308) (249,764) (560,634) Unrealized gain or loss on Galtrust II, III, IV, V securities (Note 39j)...... - - (57,534) Minority interest (Note 39q).................................................. 95,937 83,806 172,562 Year 2000 costs (Note 39l).................................................... (3,005) (20,293) (23,299) Foreign exchange difference (Note 39m)........................................ - - (1,709,414) Foreign exchange in Equity (Note 39m) ........................................ - - (67,472) Impairment of real estate properties and foreclosed assets (Note 39n)......... (67,155) (67,155) - Real Estate properties amortization (Note 39(n)).............................. 1,395 - - Presumptive minimum income tax (Note 39a) .................................... (50,467) (11,804) - Recognition for the fair value of obligations assumed under Financial guarantees issued (Note 39p)................................................. (71,759) - - Deffered Income tax of credit card companies ( Note 39a.)..................... 38,942 - - Prior income tax adjustments (Note 39a)....................................... (47,336) (6,577) - -------------- --------------- ------------- Consolidated shareholders' equity (deficit) in accordance with U.S. GAAP...... Ps (4,453,336) Ps. (5,422,323) Ps.(5,887,803) ============== =============== ============= |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
Roll forward analysis of shareholders' equity under U.S. GAAP at December 31, 2003, 2002 and 2001:
GRUPO GALICIA
ADJUSTMENTS TO PROFIT RESERVES CAPITAL PAID SHAREHOLDERS' ------------------------ STOCK IN CAPITAL EQUITY LEGAL OTHER ------------- ---------- ------------- ---------- ----------- Balance at December 31, 2000.................... Ps. 1,092,407 Ps. 86,568 Ps. 1,418,854 Ps. 1,961 Ps. 40,630 ============= ========== ============= ========== =========== Distribution of retained earnings: Legal reserve................................... - - - 14,305 - Reserve provided by the By-Laws................. - - - - 198,311 Cash dividends.................................. - - - - - Unrealized appreciation of available-for- sale securities, net of tax and minority interest...................................... - - - - - Net loss for the year under U.S. GAAP........... - - - - - ------------- ---------- ------------- ---------- ----------- Balance at December 31, 2001.................... Ps. 1,092,407 Ps. 86,568 Ps. 1,418,854 Ps. 16,266 Ps. 238,941 ============= ========== ============= ========== =========== Distribution of retained earnings: Legal reserve................................... - - - 13,227 - Reserve provided by the By-Laws................. - - - - 253,398 Unrealized appreciation of available-for-sale securities, net of minority interest.......... - - - - - Net income for the year under U.S. GAAP......... - - - - - ------------- ---------- ------------- ---------- ----------- Balance at December 31, 2002.................... Ps. 1,092,407 Ps. 86,568 Ps. 1,418,854 Ps. 29,493 Ps. 492,339 ============= ========== ============= ========== =========== Distribution of retained earnings: Unrealized appreciation of available-for-sale securities, net of tax and minority interest.. - - - - - Absorption approved by the shareholders meeting on April 23, 2003..................... (492,339) Net income for the year under U.S. GAAP......... - - - - - ------------- ---------- ------------- ---------- ----------- Balance at December 31, 2003.................... Ps. 1,092,407 Ps. 86,568 Ps. 1,418,854 Ps. 29,493 Ps. - ============= ========== ============= ========== =========== OTHER TOTAL COMPREHENSIVE RETAINED SHAREHOLDERS' INCOME (LOSS) EARNINGS EQUITY ------------- -------------- -------------- Balance at December 31, 2000.................... Ps. (187,392) Ps. 239,034 Ps. 2,692,062 ============ ============== ============== Distribution of retained earnings: Legal reserve................................... - (14,305) - Reserve provided by the By-Laws................. - (198,311) - Cash dividends.................................. - (71,370) (71,370) Unrealized appreciation of available-for- sale securities, net of tax and minority interest...................................... 129,856 - 129,856 Net loss for the year under U.S. GAAP........... - (8,638,351) (8,638,351) ------------ -------------- -------------- Balance at December 31, 2001.................... Ps. (57,536) Ps. (8,683,303) Ps. (5,887,803) ============ ============== ============== Distribution of retained earnings: Legal reserve................................... - (13,227) - Reserve provided by the By-Laws................. - (253,398) - Unrealized appreciation of available-for-sale securities, net of minority interest.......... 42,988 - 42,988 Net income for the year under U.S. GAAP......... - 422,492 422,492 ------------ -------------- -------------- Balance at December 31, 2002.................... Ps. (14,548) Ps. (8,527,436) Ps. (5,422,323) ============ ============== ============== Distribution of retained earnings: Unrealized appreciation of available-for-sale securities, net of tax and minority interest...................................... 237,691 - 237,691 Absorption approved by the shareholders meeting on April 23 ,2003 - 492,339 - Net income for the year under U.S. GAAP......... - 731,296 731,296 ------------ -------------- -------------- Balance at December 31, 2003.................... Ps. 223,143 Ps. (7,303,801) Ps. (4,453,336) ============ ============== ============== |
COMPREHENSIVE INCOME
SFAS 130 "Reporting Comprehensive Income" establishes standards for reporting and the display of comprehensive income and its components (revenues, expenses, gains and losses) in the financial statements. Comprehensive income is the total of net income and all transactions, and other events and circumstances from nonowner sources.
The following disclosure presented for the fiscal years ended December 31, 2003, 2002 and 2001, shows all periods restated to conform with SFAS 130.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
DECEMBER 31, -------------------------------------------------- 2003 2002 2001 ------------- ------------- -------------- INCOME STATEMENT Financial Income........................................ Ps. 2,752,014 Ps. 3,983,096 Ps. 3,569,476 Financial Expenditures.................................. 1,502,904 4,560,405 2,125,354 Net Financial Income.................................... 1,249,110 (577,309) 1,444,122 Provision for Loan Losses............................... 274,550 928,855 6,370,913 Income from Services.................................... 431,695 511,848 1,160,456 Expenditures from Services.............................. 70,358 140,640 214,093 Monetary result of financial brokerage.................. (68,840) 2,887,239 - Administrative Expenses................................. 541,954 1,017,223 1,478,081 Monetary result of operating expenses................... (439) 60,331 - Net Income (Loss) from Financial Brokerage.............. 724,664 795,391 (5,458,509) Minority Interests...................................... 2,545 180,815 133,809 Miscellaneous Income.................................... 719,207 291,407 661,975 Miscellaneous Losses.................................... 745,644 729,082 3,762,657 Monetary results of other operations.................... (7,828) (49,617) - Net Income (Loss) before Income tax..................... 692,944 488,914 (8,425,382) Income Tax.............................................. 38,352 (66,422) (212,969) ------------- ------------- -------------- NET INCOME (LOSS) UNDER U.S. GAAP....................... 731,296 422,492 (8,638,351) ------------- ------------- -------------- Other comprehensive income (loss): Unrealized gains (losses) on securities............. 237,691 42,988 129,856 ------------- ------------- -------------- OTHER COMPREHENSIVE INCOME (LOSS) ...................... 237,691 42,988 129,856 ------------- ------------- -------------- COMPREHENSIVE INCOME (LOSS)............................. Ps. 968,987 Ps. 465,480 Ps. (8,508,495) ============= ============= ============== |
EITF 03-01 "DISCLOSURE FOR INVESTMENTS IN AN UNREALIZED LOSS POSITION THAT ARE NOT OTHER-THAN-TEMPORARY IMPAIRED"
The following table shows the Bank's investments' gross unrealized losses and fair value, aggregated by available for sale categories and length of time that individual securities have been in a continuous unrealized loss position, at December 31, 2003.
LESS THAN 12 MONTHS 12 MONTHS OR MORE TOTAL ------------------- ----------------- ----- Description of Securities Fair Value Unrealized Losses Fair Value Unrealized Losses Fair Value Unrealized Losses ------------------------- ---------- ----------------- ---------- ----------------- ---------- ----------------- Galtrust I - - Ps. 254,835 Ps. (134,657) Ps. 254,835 Ps. (134,657) |
The Galtrust I securities represents debt securities and trust certificates relating to the Bank's ownership in Galtrust I. The Bank estimates the market value of these securities using a discounted cash flow analysis as quoted market prices are not available.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
CONCENTRATION OF RISK - TOTAL EXPOSURE TO THE PUBLIC SECTOR - ARGENTINE GOVERNMENT AND PROVINCES
The Group has significant exposure to the Argentine national government and provinces in the form of government securities, secured loans and other debt obligations. As of December 31, 2003 and 2002, the Group had the following loans outstanding:
DECEMBER 31, 2003 DECEMBER 31, 2002 ------------------------------- --------------------------------- ARGENTINE ARGENTINE BANKING BANKING GAAP U.S. GAAP GAAP U.S. GAAP -------------- ------------- -------------- ------------- Argentine national government loans Ps. 4,517,328 Ps. 3,472,063 Ps. 4,014,031 Ps. 2,763,396 Argentine provincial debt 3,473,661 2,116,498 3,810,484 2,553,496 Other Argentine public-sector receivables 471,844 375,166 397,390 329,305 Galtrust I (securitization of Provincial Loans) 646,143 254,835 686,160 436,396 Compensatory bond received 1,609,982 1,036,640 693,471 291,450 Bonds to be received (1) (2) 4,732,300 525,854 7,098,505 1,251,211 Compensation to be received related to the payment of deposits 487,020 - 446,756 - Other (3) 1,288,375 909,379 1,132,579 1,131,450 -------------- ------------- -------------- ------------- Total Ps. 17,226,673 Ps. 8,690,435 Ps. 18,279,376 Ps. 8,756,705 ============== ============= ============== ============= |
(1) The advance to be requested from the Argentine Central Bank for the subscription of the hedge bond, was recorded in "Other Liabilities Resulting from Financial Brokerage - Other", for Ps.2,536,146 plus the contingent liability mentioned in Note 12(e) as of December 31, 2003. The above mentioned advance was Ps. 2.489.864 as of December 31, 2002. Under U.S.GAAP, the hedge bond and that advance have been eliminated.
(2) Includes the compensatory bond to be received related to the asymetric pesification and indexation and the hedge bond, net of unfavorable effects on resolution of matters challenged by the Argentine Central Bank, which are in process.
(3) Includes bonds such as Fiscal Credit Certificates, Argentine Republic External Notes and national government bonds.
RISKS AND UNCERTAINTIES
The prospects of the Argentine economy and exchange markets that existed at the end of 2001 were widely uncertain. The increasing public sector deficit, the contracting economy and rumors and predictions that Argentina was abandoning the one-to-one currency parity policy, as well as the impending default on the country's external obligations, contributed to a great uncertainty as to the future of Argentina and its economy. Significant measures were put in place in December 2001, such as the freezing of bank deposits and the introduction of exchange controls that restricted capital outflows.
Subsequent measures put forth by the Argentine government added to the uncertainty, as many government decrees were issued, then subsequently changed, modified or repealed. Other decrees lacked specific and substantive guidance for implementing the new rules. Still others were being challenged in the Argentine judicial courts.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
The quality of our financial condition and results of operations depend to a significant extent on macroeconomic and political conditions prevailing from time to time in Argentina. Risks and uncertainties facing the Group that are generally the result of the recent economic crisis and the resulting government actions, include the fact that a majority of the Bank's assets are concentrated in Argentine public-sector debt instruments.
As of December 31, 2003, the Bank's exposure to the Argentine public sector, including the compensatory and hedge bonds represented approximately 75.6% of total assets. Although the Bank's exposure to the Argentine public sector consists mostly of performing assets, the realization of the Bank's assets, its income and cash flow generation capacity and future financial condition may be dependent on the Argentine government's ability to successfully restructure its foreign debt, and on its ability to establish an economic policy that is successful in promoting sustainable economic growth in the long run.
The Bank is entitled to receive compensation from the Argentine government for compensatory and hedge bonds and for the asymetric indexation compensation in the amount of Ps. 2,016,154, net of associated borrowings from the Argentine Central Bank. The receipt of the hedge bond is contingent upon the Bank providing adequate and acceptable collateral to the Argentine Central Bank. Should the Bank be unable to provide collateral acceptable to the Argentine Central Bank, the carrying amounts of the "Compensation to be Received from the National Government" would be affected.
As described in Note 1, the receipt of these bonds is subject to the approval of the Argentine Central Bank. It is possible that the Argentine Central Bank will alter the compensatory and hedge Bonds or the asymmetric indexation compensation to what the Bank claims it is entitled in amounts that could be material to Grupo Galicia. In addition, the market value of the bonds received or to be received will fluctuate significantly as the market for such bonds develops more fully. Therefore, the ultimate settlement of these bonds may differ significantly from the carrying value, at December 31, 2003 or any future date.
For the foreseeable future, the Bank will have limitations on its ability to manage effectively its assets and liabilities so as to minimize risks resulting from mismatches in terms of currencies, maturities and yields (the asymmetric pesification was accompanied by the modification by the government of the yields of the assets, the cost of the liabilities pesified, fixed maximum and minimum interest rates were established for assets and liabilities pesified). It is reasonably possible that the values of the Bank's assets and liabilities denominated in foreign currency will change in short-term in amounts that are material to the Bank.
The current economic situation in Argentina makes it difficult to predict whether the Bank will be able to implement its business strategy, including increasing fee income so as to generate sufficient revenue to cover expenses. Demand for fee-related products and services is increasing in Argentina, together with the improved situation of the economy, but the economy as a whole and the relevant markets have not stabilized enough to be certain that demand will continue to increase. Therefore, there can be no assurance that the Bank's new business strategy will in fact be successful or whether continuing or new events in Argentina will not adversely affect the Argentine economy as to call into question its ability to successfully implement its business strategy and fully regain financial stability.
In addition, the Bank recorded an intangible asset, the amount of which as of December 31, 2003, was Ps. 487.0 million, net of the amortization mandated by the Argentine Central Bank, on account of its right to receive compensation for having had to make payments in compliance with court resolutions, to reimburse its customers for the difference between the deposits converted into pesos and their value at the free US dollar exchange rate (see Note 1.). It is not possible to determine the final amounts to be
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
applied to those deposits converted into pesos, or whether the amounts already paid will be recovered by that Bank.
On the other hand, Banco de Galicia y Buenos Aires S.A. continues with the restructuring process involving certain financing of its private sector portfolio, mainly corresponding to concessionaires of public utility services. At the date of issue of this report, it is not possible to foresee the impact on the classification of debtors and the levels of allowances set up, which could derive from the outcome of that process.
Regarding to Galicia Uruguay, it has completed the restructuring of its deposits during 2002. In early January and September 2003, Galicia Uruguay paid the first and second installments, respectively, contemplated in the deposit restructuring agreement, and on September 2003 and March 2004, Galicia Uruguay settled two offers to exchange restructured deposits for cash, new negotiable obligations to be issued by Galicia Uruguay and BODEN 2012. As a result of the foregoing, the amount of indebtedness of Galicia Uruguay with its depositors has declined substantially. In addition, Galicia Uruguay has received authorization from the Central Bank of Uruguay to create a trust which will receive its assets, including the aforementioned BODEN 2012, to secure the repayment of its indebtedness with its depositors. However, the failure by Galicia Uruguay to honor its restructured liabilities on a timely basis would likely have a significant negative impact on the Bank's operations in Argentina, with a loss of reputation, customers and deposits, given that the two banks share their customer base to a large extent, and our financial condition and results of operations would likely be materially and adversely affected.
U.S. GAAP ESTIMATES
Valuation reserves, impairment charges and estimates of market values on assets, as established by the Group for U.S. GAAP purposes are subject to significant assumptions of future cash flows and interest rates for discounting such cash flows. Losses on the exchange of government and provincial bonds, and on retained interests in securitization trusts were significantly affected by higher discount rates at December 31, 2003, 2002 and 2001. Should the discount rates change in the future years, the carrying amounts and charges to income and shareholders' equity will also change. In addition, as estimates to future cash flows change, so to will the carrying amounts which are dependent on such cash flows. It is possible that changes to the carrying amounts of loans, investments and other assets will be adjusted in the near term in amounts that are material to the Group's financial position and results of operations.
40. PARENT ONLY FINANCIAL STATEMENTS
The following are the unconsolidated balance sheets of Grupo Financiero Galicia SA at December 31, 2003 and 2002 and the related unconsolidated statements of income, and cash flows for the fiscal years ended December 31, 2003 and 2002.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
BALANCE SHEET (PARENT COMPANY ONLY)
DECEMBER 31, -------------------------------- 2003 2002 ------------- ------------- ASSETS A. Cash and due from banks Cash.................................................................. Ps. 932 Ps. 1,027 Banks and correspondents.............................................. 231 266 Other................................................................. 1 - ------------- ------------- 1,164 1,293 ============= ============= D. Other receivables resulting from financial brokerage Unlisted negotiable obligations....................................... 126,792 149,993 Other receivables not included in the debtor classification Regulations......................................................... 190 - Other receivables included in the debtor classification Regulations......................................................... 21,338 34,891 Accrued interest receivable included in the debtor Classification regulations.......................................... 19 317 ------------- ------------- 148,339 185,201 F. Equity investment in other companies In financial institutions............................................. 1,306,397 1,452,186 Other................................................................. 30,962 39,337 ------------- ------------- 1,337,359 1,491,523 G. Miscellaneous receivables Other accrued interest receivables.................................... 94 - Other................................................................. 10,089 195 ------------- ------------- 10,183 195 H. Fixed assets....................................................... 3,339 3,552 J. Intangible assets Goodwill.............................................................. 6,947 13,677 Organization and development expenses................................. 92 164 ------------- ------------- 7,039 13,841 ------------- ------------- TOTAL ASSETS........................................ Ps. 1,507,423 Ps. 1,695,605 ============= ============= |
DECEMBER 31, -------------------------------- 2003 2002 ------------ ------------- LIABILITIES AND SHAREHOLDERS' EQUITY M. Miscellaneous liabilities Directors and syndics fees payable.................................... Ps. 60 Ps. 121 Other................................................................. 45,026 56,847 ------------- ------------- 45,086 56,968 ------------- ------------- TOTAL LIABILITIES............................................ Ps. 45,086 Ps. 56,968 SHAREHOLDERS' EQUITY ................................................. Ps. 1,462,337 Ps. 1,638,637 ------------- ------------- TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY.................... Ps. 1,507,423 Ps. 1,695,605 ============= ============= |
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
STATEMENT OF INCOME (PARENT COMPANY ONLY)
DECEMBER 31, --------------------------------- 2003 2002 ------------ -------------- A. Financial income Interest on Notes..................................................... Ps. - Ps. 75 Interest income from other receivables resulting from financial brokerage........................................................... 2,338 7,096 Net income from government and corporate securities................... - 11 Adjustment by application of adjusting index.......................... - 446 Other................................................................. 126 198,649 ------------ -------------- Ps. 2,464 Ps. 206,277 B. Financial expenses Interest on current accounts.......................................... - Ps. 1 Net income from government and corporate securities................... Ps. 1,367 - Other................................................................. 19,221 - ------------ -------------- Ps. 20,588 Ps. 1 Gross brokerage margin................................................ (18,124) 206,276 E. Expenses for services Commissions........................................................... - Ps. 2 ------------ -------------- Ps. - Ps. 2 Monetary loss from financial intermediation........................... Ps. (1,126) Ps. (168,482) G. Administrative expenses Personnel expenses.................................................... Ps. 754 Ps. 1,128 Directors and syndics fees............................................ 123 153 Other fees............................................................ 2,181 3,085 Taxes................................................................. 693 649 Other operating expenses.............................................. 369 1,865 Other................................................................. 646 250 ------------ -------------- Ps. 4,766 Ps. 7,130 Monetary gain from operating expenses................................. Ps. 1 Ps. 229 Net income from financial brokerage Ps. (24,015) Ps. 30,891 H. Miscellaneous income Other......................................... 8,935 598 ------------ -------------- Ps. 8,935 Ps. 598 I. Miscellaneous losses Net income on long term investments (1)............................... Ps. 194,947 Ps. 1,439,914 Other................................................................. 7,023 4,245 ------------ -------------- Ps. 201,970 Ps. 1,444,159 Monetary gain (loss) on other transactions............................ Ps. 8 Ps. 403 Income tax............................................................ Ps. 17 Ps. 59,244 ------------ -------------- Net income for the period............................................. Ps. (217,059) Ps. (1,471,511) ============ ============== |
(1) Includes the foreign currency position compensation.
GRUPO FINANCIERO GALICIA S.A. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
FOR THE FISCAL YEARS ENDED DECEMBER 31, 2003, 2002 AND 2001
(Expressed in thousands of Argentine pesos)
STATEMENT OF CASH FLOWS (PARENT COMPANY ONLY)
DECEMBER 31, -------------------------------- 2003 2002 ------------ ------------- CHANGES IN CASH Cash at the beginning of the period................................... Ps. 1,293 Ps. 357 Increase / (decrease) in cash......................................... (129) 936 ------------ ------------- CASH AT END OF PERIOD 1,164 1,293 CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES Less: Operating expenses paid............................................... (7,118) (8,430) Plus: Other operating income received....................................... 3,382 7,000 ------------ ------------- CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES....................... (3,736) (1,430) OTHER SOURCES OF CASH Increase in short-term debts.......................................... - 399 Increase in short-term investment..................................... 17,104 162,558 Other sources of cash................................................. 357 4,509 ------------- ------------ OTHER SOURCES OF CASH................................................. 17,461 167,466 OTHER USES OF CASH Increase in short-term loans.......................................... - (1,452) Increase in fixed assets.............................................. - (20) Increase in long-term investments..................................... (11,096) (4,220) Other uses of cash.................................................... (2,758) (159,408) ------------- ------------ TOTAL OTHER USES OF CASH.............................................. (13,854) (165,100) ------------- ------------ INCREASE / (DECREASE) IN CASH........................................ Ps. (129) Ps. 936 ============= ============ |
NEW AUTHORITATIVE PRONOUNCEMENTS
The Financial Accounting Standards Board ("FASB") has issued certain Statements of Financial Accounting Standards ("SFAS") which are applicable to the Group, but are not yet required and have not yet been adopted.
In December 2003, the FASB issued a revision to Interpretation No.46, "Consolidation of Variable Interest Entities", or "Interpretation 46R." Interpretation 46R provides additional guidance. The Bank is presently evaluating the impact of the new interpretation, however, management does not expect that the adoption will have a material impact on its results of operation on financial position.
In April 2003, the FASB issued SFAS 149, " Amendment of Statement 133 on Derivative Instruments and Hedging Activities". SFAS 149 amends and clarifies financial accounting and reporting for derivative instruments and for hedging activities under SFAS 133. The adoption of SFAS 149 did not have a material impact on the Bank's consolidated results of operations or financial position.
In May 2003, the FASB issued SFAS 150, "Accounting for Certain Financial Instruments with Characteristics of both Liabilities and Equity". SFAS 150 establishes standards for how an issuer classifies and measures certain financial instruments with characteristics of both liabilities and equity. The adoption of SFAS 150 did not have a material impact on the Bank's consolidated results of operation or financial position.
Exhibit 1.1
GRUPO FINANCIERO GALICIA
BYLAWS OF GRUPO FINANCIERO GALICIA S.A., A COMPANY WHICH HAS NOT ADHERED TO THE OPTIONAL BYLAWS SYSTEM FOR THE MANDATORY ACQUISITION OF SHARES IN A PUBLIC OFFERING:
CHAPTER 1. NAME, DOMICILE AND TERM. ARTICLE 1: The name of the Company is GRUPO FINANCIERO GALICIA S.A. The Company was originally organized under the name "Galicia Holding S.A.". The Company has its legal domicile within the City of Buenos Aires, and it is permitted to set up branches, agencies or representative offices within or without the country, pursuant to applicable laws and regulations. The registered office of the Company is *Teniente General Juan D. Peron 456, piso 3, oficina 316, Buenos Aires. The Company's registered office may be changed elsewhere within the same jurisdiction by decision of its Board of Directors as many times as, provided such change of domicile be registered with the Public Registry of Commerce. The Company shall be governed by these Bylaws and by the regulations adopted by the shareholders at their Extraordinary Shareholders' Meeting and registered with the Public Registry of Commerce, in agreement with the terms of Section 167, 3rd paragraph, of the Business Companies Law. Grupo Financiero Galicia S.A. is a "Company which has not adhered to the Optional Bylaws System for the Mandatory Acquisition of Shares in a Public Offering" pursuant to Section 24 of Decree 677/01". ARTICLE 2: The term of duration of the Company shall be until June 30, 2100, but said term may be extended by the shareholders at a General Extraordinary Shareholders' Meeting. CHAPTER 2. PURPOSE. ARTICLE 3. For the purposes of Section 31, 1st paragraph, of the Business Companies Law, the Company is EXCLUSIVELY A FINANCIAL AND INVESTMENT COMPANY. A. Accordingly, its purpose is to carry out either on its own account or on account of or in association or together with third parties under any form of legal entity, within and without the country, the following activities: 1. To acquire, maintain and manage holdings and investments in companies organized within and without the country, to which purpose it may use all its net worth, even becoming the controlling Company thereof, and irrespective of the purpose of the subsidiaries or affiliated companies, but particularly in banks, financial entities, financial services companies of whatever nature, credit card service companies, insurance and reinsurance companies and companies engaged in any supplementary, related or similar activity. 2. To participate in the organization and incorporation of companies, make capital contributions to existing or future companies for the financing of existing or future transactions. 3. To purchase, sell, trade and subscribe any class of securities, shares, debentures and other securities, either now known or to be created in the future. 4. To take and give secured or unsecured short, medium, and long term loans, whether in the country or abroad. 5. The Company shall in no case be permitted to give guaranties or bonds in favor of third parties, except in the event of directly or indirectly controlled subsidiaries or affiliated companies. 6. To exercise representations, agencies and commissions and manage the property and affairs of companies, individuals or entities based within or without the country. More particularly, the Company may act as agent or representative in any transaction of the kind described in the sections above. 7. To carry on any kind of transactions in the capital markets or commodities, within the country or abroad. 8. If so first approved at a Shareholders' Meeting, it may issue debentures or negotiable obligations and, if so first authorized by the competent corporate body pursuant to the applicable legislation, it may issue any other securities, papers or instruments permitted under present or future local or foreign laws. B. Without prejudice to the fact that the Company may participate in or exercise the control
*At a Meeting held by the Board of Directors on Jan. 11, 2001, it was resolved that the registered office be located at Tte. Gral. Juan D. Peron 456 2o Piso, Buenos Aires (this change of domicile was registered with the Public Registry of Commerce on Feb. 5, 2001, under Number 1703, on Book 14, Volume of Stock Companies).
GRUPO FINANCIERO GALICIA
of local or foreign banks or financial entities, it shall not carry on as part
of its own activities any form of brokerage in the supply and demand of
financial resources which are governed by specific laws, and more particularly
by the Financial Entities Law, notwithstanding the potential fact that the
Company may be authorized to make a public offering by the National Securities
Commission or by any other local or foreign Stock or Securities Exchange. C.
Concerning the purposes mentioned in this article, the Company may be a party to
or a member of joint interest cooperation agreements (contratos de colaboracion
empresaria) within the country or abroad, and whether of the kind governed by
current legislation or otherwise. The respective resolution shall be vested in
the Board of Directors, which may also decide the setting up of offices,
branches, agencies and any other form of decentralization, either in the country
or abroad. D. For all of the above purposes, the Company has full legal capacity
to acquire rights, assume obligations and undertake any and all acts that are
not expressly prohibited by law or by these Bylaws. CHAPTER 3. CAPITAL STOCK,
SHARES AND OTHER SECURITIES. ARTICLE 4: A. The Company's subscribed and paid-in
capital stock as of May 15, 2000 amounts to five hundred and forty-three million
pesos (Ps. 543,000,000) divided into and represented by five hundred and
forty-three million shares of common stock having par value of Ps. 1 (One Peso)
each, of which two hundred and eighty-one million two hundred and twenty-one
thousand six hundred and fifty (281,221,650) are Class "A" shares, carrying five
votes each. The remaining shares, that is to say, two hundred and sixty-one
million seven hundred and seventy-eight thousand three hundred and fifty
(261,778,350) shares are Class "B" shares and carry one vote each. B. By
resolution adopted at the General Extraordinary Shareholders' Meeting held on
May 16, 2000, it was decided that the capital stock would be increased up to the
amount resulting from the Public Offering of Exchange of Shares decided on at
said Meeting. Upon conclusion of said exchange, as evidenced in deed number 650
dated July 27, 2000 entered by Notary Eduardo A. Diaz (filed with the Inspecting
Board of Legal Entities on August 9, 2000, under Number 11670, Book 12, Volume
of Stock Companies, Inspecting Board of Legal Entities consecutive number
1671058), the Company's capital stock amounted to one billion ninety-two million
four hundred and seven thousand and seventeen pesos (Ps. 1,092,407,017) divided
into and represented by one billion ninety-two million four hundred and seven
thousand and seventeen shares (1,092,407,017) having par value of one peso (Ps.
1) each, of which two hundred and eighty-one million two hundred and twenty-one
thousand six hundred and fifty (281,221,650) are Class "A" shares, carrying five
votes each. The remaining shares, that is to say, eight hundred and eleven
million one hundred and eighty-five thousand three hundred and sixty-seven
(811,185,367) shares are Class "B" shares and carry one vote each. All the
shares are book-entry shares. C. As from the date hereof, the capital stock
shall be the amount resulting from the subscription of the latest capital
increase approved and any changes in the capital stock of the Company shall be
reflected in the Company's balance sheets. D. While the Company is authorized to
make a public offering of its shares, the shareholders may, at an Ordinary
Shareholders' Meeting, pursuant to Section 188 of Law 19,550, increase the
capital stock subject to no limitation and without having to amend its Bylaws.
Upon each capital increase, the characteristics of the new shares to be issued
shall be determined. The Board of Directors may be granted authority to make the
issues when so deemed advisable, as well as to determine the form and terms of
payment of the shares. E. The division of shares into Class "A" and Class "B"
shares shall be automatically rendered ineffective in the following cases: a.
Should the only current holder of the Class "A" shares, i.e. EBA Holding S.A.,
sell all those Class "A" shares or such a number thereof that, considering the
plural vote of the Class "A" shares, the buyer would obtain half of the votes
plus one vote out of the total number of votes of Grupo Financiero Galicia S.A.;
b. Should holders of Class "A" shares of EBA Holding S.A., as per
GRUPO FINANCIERO GALICIA
the list of such shareholders included in the Minutes of Meeting Number 1 of
said Company, corresponding to the General Extraordinary Shareholders' Meeting
held on October 12, 1999 (filed with the Registry under Number 18036, Book 8,
Volume of Stock Companies, Inspecting Board of Legal Entities consecutive number
1670663), transfer shares carrying more than half plus one votes at the Ordinary
Shareholders' Meetings of EBA Holding S.A. to third parties other than holders
of Class "A" chares, or to their successors or assigns, or to spouses to whom
Class "A" shares may be granted due to the separation of marital property. F. In
case any of the events specified in item E. hereinabove shall occur, the shares
of stock shall automatically cease to be divided into classes, and all of them
shall be book-entry shares of common stock entitled to one vote each. ARTICLE 5.
a. The shares to be issued in the future may be registered, non-endorsable or
book-entry shares, and common or preferred shares, as it may be resolved at the
respective Shareholders' Meeting deciding the capital increase. b. Considering
that the Company has been authorized to make a public offering of its shares,
all the common shares that may be issued in the future shall carry one vote
each, except otherwise authorized by law. In electing the syndics and in
deciding the matters referred to in Section 244, last paragraph, of the Business
Companies Law, all the common shares shall confer the right to cast one single
vote. c. The holders of not fully paid in shares shall be permitted to attend
the Shareholders' Meetings and exercise their voting rights as from the time
they subscribe and pay in the portions specified in the law and in the terms of
the respective issue. d. Shares of preferred stock shall have preferred rights
in the payment of dividends, either cumulative or not, fully in agreement with
the terms of the respective issue. These shares may also be granted an
additional participation in the Company's profits according to their terms of
issue and/or priority in the repayment of capital in the event of liquidation as
well as the right to participate in the excess, if any, pro rata and together
with the common shares. Preferred shares shall confer no voting rights. However,
when preferred shares do enjoy voting rights according to Section 217 of the
Business Companies Law, their right shall be equal to that of the already issued
common shares conferring the lowest number of votes. e. Moreover it may, as
applicable, issue non-voting participation shares, which shall not represent a
participation in the Company's capital stock exceeding 30% thereof. f. It may
also issue new kinds of shares or other securities, either convertible or not,
now or in the future authorized by applicable laws and regulations. g. The
Company may issue negotiable obligations (either secured or unsecured) or any
other usual or unusual securities authorized by the laws in force in the country
or, as applicable, in any foreign country. h. The issue of negotiable
obligations and participation shares (whether redeemable or not) shall be
decided by the shareholders at an Ordinary Shareholders' Meeting. To such end,
the power to determine within the authorized amount all or some of the terms of
issue, including date, price, form and terms of payment, may be delegated to the
Board of Directors, fully in agreement with the legal provisions in force and
the resolutions of the Argentine Securities Commission, as the case may be. i.
The Company may also issue debentures within or without the country, in local or
foreign currency, whether secured or unsecured, as set forth in Title II,
Article VII of the Business Companies Law. The shareholders, at an Extraordinary
Shareholders' Meeting, and at the request of the Board of Directors, shall
determine the amount and currency of the debentures and their characteristics
and terms; the shareholders may delegate to the Board of Directors all matters
related to the date of issue and details concerning the implementation of the
pertinent decision. j. Any ordinary, preferred or participating stock without
voting rights and any other securities mentioned in this section may be tendered
through a public offering, once requirements have been met and authorization
from the National Securities Commission and/or equivalent agencies and
authorities in other countries has been obtained, the Company being empowered to
request their listing on
GRUPO FINANCIERO GALICIA
the local and foreign stocks and exchanges. ARTICLE 6. The shareholders at an Extraordinary Shareholders' Meeting may at any time decide to fully or partially redeem preferred shares of a specific kind or class, according to their terms of issue and to any other conditions fixed by the shareholders at the meeting. These shares shall thereupon forfeit all their voting and economic rights, thus becoming automatically credit instruments for the amount of the redemption. If the redemption of one class of preferred shares were only partial, it shall be pro rata to all the shares of that kind or class. The redemption notice shall be published for three days in the Official Bulletin. ARTICLE 7. Upon the liquidation of the Company, the nominal capital stock shall be repaid first to the holders of preferred stock and next to the holders of common stock. Overdue cumulative dividends shall be paid, if applicable, on the preferred shares; any balance shall be then distributed solely among the holders of common stock, once holders of preferred stock have been paid any additional participation they may be entitled to according to the terms of the respective issue. ARTICLE 8: a. Book-entry shares in which the capital stock is divided as well as new book-entry shares or other securities that may be issued in the future shall be entered in accounts kept in the names of their holders in a Register of Book-Entry Shares maintained by the Company in a special book with all the formalities, requirements and evidences set forth in Section 213 of the Business Companies Law and any other applicable laws and regulations. The Company shall give each holder an instrument evidencing the opening of his/her account and any other entry made therein. Each shareholder shall be surrendered, at his/her request and cost, a statement of his/her account. b. The Board of Directors may decide that the Register of Book-Entry Shares be kept by a commercial or investment bank, or by an authorized custodian, fully in agreement with applicable laws and regulations. c. If the Company were to issue certificated shares in the future, the certificates and/or interim certificates so issued shall bear the legends specified in Sections 207, 211 and 212 of the Business Companies Law and any other legend required by the laws and regulations in force. In such an event, the issue of a certificate evidencing more than one share is permitted. If so first approved by the controlling authorities, the certificates may be issued with a signature printed in such a manner that guarantees the certificates' authenticity. d. In the event of joint-holders, the Company shall demand that they join their representation. Until such joining occurs, no voting rights thereon may be exercised. e. The transfer of book-entry shares or non-endorsable shares (should the Company decide to issue the same in the future) or the creation of any security interest or lien thereon shall be governed by the provisions of Section 215 of the Business Companies Law and by any other applicable laws or regulations; written notice of such transfer shall be sent to the Company, signed by the transferor and the transferee, or by the transferor alone, or by the creditor or beneficiary, as applicable. If any authorized stock or over-the-counter broker is involved in the transaction, the notice may be given by such authorized broker. The transfer of book-entry shares or registered non-endorsable shares shall be of no effect vis-a-vis the Company or third parties until registered in the Book-Entry Register or Stock Ledger, as the case may be, which shall be kept in compliance with any and all applicable laws. ARTICLE 9: In the event of arrears in paying up the capital stock, the Board of Directors is empowered to proceed in accordance with Section 193 of the Business Companies Law, selecting the mechanism that will best serve the Company's interests, in the light of prevailing circumstances. In all cases, arrears shall occur automatically, as a matter of law, with the ensuing acceleration of all pending terms. Arrears interest will be one and a half times the rate applied by the Banco de la Nacion Argentina to its checking account overdrafts. The delinquent shareholder shall be given a 15-calendar-day notice to pay the full balance due plus interest, under warning that non-payment as aforesaid will entail the sale of the shares at a public auction to be conducted by an auctioneer or, in the event of listed shares, by a stock
GRUPO FINANCIERO GALICIA
broker appointed by the Board of Directors. If the proceeds of the auction are not sufficient to cover the expenses, fees, interest and amounts due, the Company shall request the delinquent shareholder to pay the shortage; if there is any amount in excess, such an excess shall be made available to said shareholder. Should the Board of Directors decide to exercise its right to declare the expiration of all rights with the ensuing forfeiture of any sums paid (Section 193, paragraph 2 of the Business Companies Law) the notice demanding payment of the amounts due plus interest shall specify a 15 (fifteen) to 30 (thirty) calendar-day term therefor, as it may be resolved by the Board of Directors. ARTICLE 10: Holders of shares of common stock may exercise their preemptive right in the subscription of future shares and any other securities convertible into shares to be issued. Moreover, and in the proportion so subscribed, they may exercise their right of first refusal in the subscription of any shares that were not subscribed by the other shareholders. For the purposes of exercising these rights, the Company shall tender the shares to the shareholders through notices published during three days in the bulletin of legal publications and if legally required, in one of the newspapers of general circulation in the Republic of Argentina, granting to the shareholders the term fixed by the shareholders at a Shareholders' Meeting for the exercise of their preemptive and first refusal rights, in agreement with legal provisions in force. Upon the expiration of this term and if there were still any remaining unsubscribed shares of stock, the same may be tendered by the Board of Directors as it may deem it most convenient. ARTICLE 11: In the event a capital increase is applied to third-party subscriptions pursuant to Section 197 of the Business Companies Law, and if so deemed advisable in the light of the Company's best interests, it may be resolved, at an Extraordinary Shareholders' Meeting, that the preemptive right to subscribe new shares of stock be limited or suspended. ARTICLE 12: Upon subscribing or purchasing of any shares of stock in the Company, subscribers or purchasers shall be deemed to know and accept these Bylaws and any future amendments hereof, as the case may be, and in the event of any legal action, they shall submit themselves to the jurisdiction of the Ordinary Courts in Commercial Matters of the City of Buenos Aires. CHAPTER IV. MANAGEMENT. ARTICLE 13: a. Management of the Corporation shall be vested in a Board of Directors which shall be composed of a number of members to be determined each year at the Annual Ordinary Shareholders' Meeting, said number ranging between a minimum of three and a maximum of nine members. b. The directors who may be elected shall only be those persons whose names are stated in lists submitted no less than three days before the date of the Meeting, and signed by shareholders representing shares which entitle their holders to at least a ten percent of the total voting rights, to the Chairman of the Board of Directors or his substitute for their official approval. In the event the Meeting is adjourned before the election of directors, new lists may be submitted up to three business days before the date set for said Meeting to be reassumed. If any shareholder gives the Company at least three days' notice prior to the date of the Meeting about his/her decision to vote cumulatively, he/she shall state the name or names of the person/s he/she proposes to be elected through such system. For the purposes of facilitating the preparation of these lists and of registering the names of the candidates, as from the date of the first notice of the respective Meeting, an ad hoc book with the formalities set forth by Article 53 of the Commercial Code shall be kept at the corporate domicile, which book shall be open to inspection of the shareholders at any time. On said book, the names of the lists or candidates proposed by the shareholders making such request shall be written down. Votes cast in favor of persons not included in lists submitted within the terms and under the conditions mentioned above shall be invalid. c. The shareholders at the Shareholders' Meeting may also elect one or more Alternate Directors up to a maximum number equal to the number of elected Regular Directors. When electing the Alternate Directors, the Shareholders' Meeting
GRUPO FINANCIERO GALICIA
may (i) determine which Regular Director shall be replaced by each Alternate Director, or (ii) establish an order of election, or (iii) any combination of the above two options. If no resolution is made at the Shareholders' Meeting, it shall be deemed that the criterion specified in (ii) was chosen. In the event of impediment or absence of a Regular Director, whether temporary or permanent, the Alternate Director elected under (i) shall replace the respective Regular Director, and the Alternate Directors elected under (ii) shall replace Regular Directors according to the order of their election. Only if a quorum of Regular Directors is not present, Alternate Directors shall act in the Board of Directors without requiring any authorization or Board resolution. If there is a quorum of Regular Directors present, Alternate Directors may act in the Board of Directors if so decided it by a majority of its members. An Alternate Director shall stay in office until the director he/she replaces resumes his/her duties, and, in the event of permanent absence or discontinuance, until the next Ordinary Shareholders' Meeting at which directors are to be elected. At such Meeting, shareholders may confirm that said Alternate Director should complete the outgoing Director's unexpired term of office or they may elect another director to that end. d. In order to be a Director, an individual shall have an honorable reputation and shall possess the technical qualifications suitable to hold office. Upon taking office, each director shall give a bond of One Thousand Pesos (Ps.1,000.-), either in cash and/or government securities. e. Regular Directors shall hold office for three years and shall be renewed by thirds (or a fraction of no less than three) each time. The first Shareholders' Meeting held at which directors shall be elected as from approval of the amendment to this article (even if the amendment has not been yet registered), shall decide which of the directors elected shall hold office for a term of one, two or three years. In general, when electing directors or afterwards, the Shareholders' Meeting shall have the power to fix a lesser period (one or two years) for the terms of office of one, several or all of the directors. Should this issue not be resolved on at the Shareholders' Meeting, the first Board of Directors whose members must be partially renewed shall decide, in its first meeting, the names of the Directors who shall cease in their offices after their first year of service. Alternate Directors shall also be elected for a three-year term, and the same rules set forth for Regular Directors shall apply thereto. Directors, both alternate and regular, may be reelected indefinitely. If the Ordinary Shareholders' Meeting is held after the expiration of the terms of office fixed for directors, they shall validly remain in their offices until their successors shall have been elected. F. In the event of any vacancy in the Board of Directors, the Supervisory Syndics Committee shall appoint the directors necessary for the Board to be able to transact business. ARTICLE 14: During the course of the first Board of Directors' meeting held after the Ordinary Shareholders' Meeting at which directors are totally or partially elected, provided always that at such Shareholders' Meeting said offices have not been elected, directors shall elect from their own members a Chairman, and one or two Vice-Chairmen, as resolved by the Board of Directors. In the event of absence or impediment of the Chairman, one of the Vice-Chairmen shall automatically replace the Chairman in all his/her duties and powers, in the order of their election. ARTICLE 15: a. The Board of Directors shall meet at least once per month and at any other time as it may be so requested by any of the directors or the Supervisory Syndics Committee. b. The Board of Directors shall transact business with the presence of the majority of its members and actions shall be taken by a majority of votes present. In the event of a tie, the chairman shall have a casting vote. In the absence of the Chairman, the casting vote right shall be exercised by one of the Vice-Chairmen. To such end, the same order specified in Article 14 shall be followed. c. The Shareholders' Meeting shall set the compensation of the Board of Directors, taking into account the best practices used in the local and international markets to compensate directors having similar duties and responsibilities. ARTICLE 16: The powers and duties of the Board of Directors shall be
GRUPO FINANCIERO GALICIA
as follows: 1) To agree, establish, authorize and regulate the affairs,
investments and expenses of the Company; to enforce the resolutions adopted at
the Shareholders' Meetings; and to resolve, within ten business days, any
request to call a Shareholders' Meeting received from the Shareholders pursuant
to Section 236 of the Business Companies Law. 2) To decide, when so deemed
convenient for the fulfillment of the corporate objectives, that its members
take up remunerated positions within the Company, its subsidiaries or
affiliates, whether they be technical or administrative positions, and whether
of a permanent, temporary or occasional nature, such a cost to be allocated to
general expenses. It shall appoint all other offices and employees, establishing
their powers, duties, remunerations, rewards and bonds, with authority to
suspend and remove them. 3) To allocate any sums of money as it may deem
adequate for the benefit of any person that has worked for the Company, its
subsidiaries or affiliates. 4) To supervise the businesses and operations of the
Company and to establish the best means and mechanisms to participate in the
corporate bodies and decisions of its subsidiaries and affiliates, or in the
supervision thereof, as applicable. 5) To send out notices of and be present at
Shareholders' Meetings and to move at them any measures it may deem pertinent;
to submit the Annual Report and Balance Sheet of the Company for approval of the
Shareholders at the Annual General Meeting, and to propose thereat the
distribution of profits in accordance with the law and these Bylaws. 6) To issue
internal rules and regulations in case they are considered necessary, with the
exception of the regulations mentioned in Article 1, which shall have to be
approved at a Shareholders' Meeting. 7) To acquire and dispose holdings in any
other companies, both within and without the country. 8) To settle and submit to
de jure arbitrators or amiables compositeurs any matters the Company may be
party to. 9) To agree on interim dividends when deemed fit, in the cases
permitted by and in accordance with Section 224 of the Business Companies Law
and other applicable legal provisions in force. 10) To agree upon transactions
with institutions, banks or companies within or without the country. 11) To
provisionally suspend, with the vote of two-thirds of the Board of Directors
members, a director who shall have willfully carried out any act contrary to the
Company's interests, submitting the case to the consideration of the
Shareholders at a Meeting to be immediately convened therefor. 12) To promote
all kinds of legal complaints, perform all kinds of acts and execute all
contracts that may be necessary to fulfill the corporate purpose, including
those for which special powers of attorney are required (such as those listed in
Sections 782, 806 and 1881 of the Argentine Civil Code and Section 9 of Decree
Law 5965/63 and other applicable rules). 13) To set up branches, agencies or any
kind of representative offices, either in the Republic of Argentina or abroad,
establishing or not a specified capital therefor, and granting any powers as
required. To execute joint interest cooperation agreements. 14) To grant court,
out-of-court, administrative and other powers of attorney, whether general or
special, with the purpose and scope that is deemed most convenient. 15) To
distribute any sums of money and to make grants and gifts to charity or any
other general interest purposes. 16) The Board of Directors shall not be
authorized to decide upon the sale or any other act involving any disposition of
the shares which are the controlling interest in the subsidiary "Banco de
Galicia y Buenos Aires S.A.", including any merger or similar act of corporate
restructuring, without such a transaction having been first approved by the
Shareholders at an Ordinary Shareholders' Meeting. The above enumeration is
merely illustrative, and the Board of Directors is authorized to resolve on any
cases not contemplated herein, provided that they be related to the corporate
purpose and that they conform to legal and Bylaws provisions. ARTICLE 17:
DELEGATE DIRECTOR OR EXECUTIVE COMMITTEE. MANAGERS. a. For purposes of the
better performance of its duties, the Board of Directors may delegate to one of
its members (the "Delegate Director") or to an Executive Committee part of its
administration duties, more particularly, the executive management of the
Company's usual and
GRUPO FINANCIERO GALICIA
ordinary affairs, according to any course of action that may be fixed. b. If the
Board of Directors should decide to organize an Executive Committee, it shall do
so in line with Section 269 of the Business Companies Law. The Committee shall
consist of two to five members and its meetings shall be held as frequent as
resolved by the Board of Directors. The quorum at the meetings shall be deemed
constituted with more than a half of its members present and the decisions shall
be made by majority of the members present. If the Committee consists of only
two members, the casting vote in the event of tie shall correspond to the
Chairman of the Board of Directors, who shall be called for that specific
purpose. If the Chairman were a member of the committee, he shall have a casting
vote. The Executive Committee shall only be in charge of managing the habitual
affairs, with such powers and restrictions that may be fixed by the Board of
Directors. c. The Executive Committee, or the Delegate Director or Directors, as
applicable, shall provide the Board of Directors with any information regarding
the resolutions adopted by the same. The Board of Directors shall supervise the
performance of the Executive Committee, or that of the Delegate Director or
Directors, as applicable, being entitled, pursuant to the powers conferred on it
by law or these bylaws, to resume at any time the delegated duties, either
provisionally or permanently, as well as to change the duties of or discontinue
such Committee. d. The provisions of the preceding paragraphs have been
established notwithstanding the fact that the Board of Directors is also
authorized to appoint a General Manager and one or more managers, whether they
be directors or not, and to grant them certain administration duties. ARTICLE
18: a. The Chairman shall be the legal representative of the Company. However,
each of the Vice Chairmen individually or two any of the remaining Regular
Directors acting jointly may also represent the Company, being entitled, while
discharging such representation and for purposes of the implementation of the
resolutions made by the Board of Directors, to execute any obligations,
agreements, and generally, any legal acts and documents related to the Company's
management. b. Any regular member of the Board of Directors may represent the
Company in order to testify and answer interrogatories in any action or before
any arbitration and administrative courts, either within the country or abroad,
it being understood in such case that he/she is acting as the legal
representative of the Company and that his/her representations and statements
are binding on the Company, notwithstanding any general or special powers of
attorney that the Board of Directors may decide to grant, either to answer to
interrogatories or otherwise. c. Furthermore, the Chairman or the Vice Chairman
or Vice Chairmen acting in lieu of the Chairman shall have the following powers
and duties: 1) To ensure compliance with these Bylaws, the internal rules and
regulations and the resolutions passed by the Board of Directors and
Shareholders' Meetings. 2) To preside at all Shareholders' Meetings and Board
Meetings, to call the meetings to order and monitor discussions held at them, to
make all Directors and Shareholders' Meetings aware of all regulations and
matters that affect the Company, its subsidiaries and affiliates, and to suggest
the resolutions that he/she may deem fit. 3) To call the Board of Directors
meetings when deemed fit, or when so requested by any of the Directors or
Syndics. 4) To execute all documents related to the Company's business,
notwithstanding those that have to be signed by other directors, managers or
officers in accordance with these Bylaws or the Company's internal regulations.
5) To discontinue the services of the managers and other employees, reporting
this fact immediately to the Board of Directors for the Board to resolve as it
may best deem. CHAPTER V. SUPERVISION. ARTICLE 19: a. Supervision of the Company
shall be performed by a Supervisory Syndics Committee consisting of three
Regular Syndics appointed at the Ordinary Shareholders' Meeting to hold office
during one fiscal year. The syndics shall have the powers and duties set forth
in Section 294 of the Business Companies Law. Furthermore, three Alternate
Syndics shall be appointed at the Shareholders' Meeting, who shall act
GRUPO FINANCIERO GALICIA
during the absence or impediment of the regular syndics. When appointing the alternate syndics, Shareholders may decide (i) to determine which regular syndic is to be replaced by each alternate; and (ii) to fix an order of election that, in the first place, shall be the number of votes obtained by each of them. In such case, they shall take office in the order of their election. The alternate syndic may attend the meetings of the Supervisory Syndics Committee and of the Board of Directors upon the mere absence of a regular syndic -and, as applicable, in the absence of the remaining alternate members that have a prior right concerning the number of votes or the order of their election, if any,- without any previous action by the corporate body being necessary therefor. The performance of the alternate syndic shall extend until the replaced regular member shall have resumed its duties or, in the event of a permanent absence, until the next Ordinary Shareholders' Meeting at which the new syndics are to be elected. b. The Supervisory Syndics Committee meetings shall be validly held with the presence of two of its members and resolutions thereat shall be adopted with the affirmative vote of the majority of those present, notwithstanding the rights, powers and duties of the dissenting syndic, as applicable, under Section 294 of the Business Company Law. The Supervisory Syndics Committee shall keep a minutes book. CHAPTER VI. CORPORATE GOVERNANCE. ARTICLE 20: The Shareholders' Meetings shall be Ordinary or Extraordinary, according to the relevant agenda. The meetings shall be conducted fully in accordance with Sections 234, 235 and other applicable sections of the Business Companies Law. ARTICLE 21: a. The Shareholders' Meetings, either Ordinary or Extraordinary, shall be convened through publications during five days, made with a minimum and maximum anticipation of 10 and 30 days, respectively, in the newspapers of legal publications and in one of the newspapers of general circulation throughout the Republic of Argentina. Furthermore, all applicable laws and regulations shall be complied with. b. Notice of the first and adjourned meetings may be given simultaneously as set forth by Section 237 of the Business Companies Law. In the event of simultaneous calls, if the meetings have been convened to be held within the same day, there must be an interval of at least an hour after the time fixed to hold the first one. Once the Company has been authorized to make a public offering of its shares of stock, the power to make simultaneous calls shall be reserved to the Ordinary Shareholders' Meetings. If the calls are not made simultaneously, the adjourned meeting shall be held within 30 (thirty) calendar days and the publications shall be made during three days, at least 8 days prior thereto. c. The Board of Directors shall determine the Agenda of each Shareholders' Meeting and no business may be transacted other than that included in the call by the Board of Directors or such as may have been included by the Supervisory Syndics Committee. The shareholders that represent at least 5% of the paid in capital stock may propose in writing to the Board of Directors, before February 28th every year, the items that in their discretion should be considered at the Shareholders' Meeting that shall deal with the annual documentation and reports of the fiscal year. ARTICLE 22: The right to attend the Shareholders' Meeting may be exercised either personally or by the representation of another person, whether or not he/she is a shareholder, through a proxy made in a private instrument, signature of which shall be certified by a judicial officer, a Notary Public or a banking institution. ARTICLE 23: a. Quorum and majority percentages shall be as established by Sections 243 and 244 of the Business Companies Law, according to the type of meetings, notice and agenda. The only exception is the quorum at second call of the Extraordinary Shareholders' Meeting, which shall be deemed validly convened with the presence of any number of shareholders having voting rights. b. Votes shall be by show of hands or in the manner determined by the Chairman and as approved at the Shareholders' Meeting. At the request of the Shareholders who have voted against a specific resolution, or that have abstained from voting thereon, such circumstance shall be duly recorded. c. The minutes of each
GRUPO FINANCIERO GALICIA
meeting containing a summary of the proceedings and an exact transcription of
the resolutions adopted thereat shall be entered in the Shareholders' Minutes
Book. These minutes shall be signed by the Chairman, the shareholders specially
appointed by the Meeting for that purpose, the Secretary and the Tellers, if
any. The signatures of the shareholders or representatives along with that of
the Chairman shall entail the approval of the relevant minutes. d. The
Shareholders' Meeting shall be in permanent session until all items of the
Agenda have been decided on. The meeting may be adjourned only once, to continue
within 30 calendar days. Only the shareholders who were allowed to attend the
first meeting by reasons of having complied with the notice contemplated by
Section 238 of the Business Companies Law shall be authorized to attend the
adjourned meeting. Minutes of each meeting shall be drawn up. CHAPTER VII.
BALANCE SHEET AND PROFIT DISTRIBUTION. ARTICLE 24: a. The Company's fiscal year
shall close on December 31 of each year. The financial statements, according to
the applicable technical standards and current provisions, shall be drawn up as
of such date. b. Without prejudice to the foregoing, if the Company or any of
its subsidiaries were authorized to make a public offering of its shares,
negotiable obligations or other securities, the financial statements shall be
drawn up on a quarterly basis subject to the applicable legal and regulatory
requirements. Their preparation shall be in charge of the Board of Directors and
shall include an opinion given by the Supervisory Syndics Committee. c. The
Shareholders at their Meeting may change the closing date of the Company's
fiscal year, registering the pertinent resolution at the Public Registry of
Commerce and informing it to the competent controlling authorities. d. Liquid
and realized profits shall be annually distributed as follows: 1) The percentage
stipulated by existing laws shall be allotted to the Statutory Reserve Fund. 2)
The sum to be determined according to current legal provisions or to these
bylaws, to the compensation of the Board of Directors, which sum shall be
distributed among the directors in the manner decided by the Shareholders'
Meeting or, as applicable, by the Board of Directors. 3) The sum to be
determined as compensation of the Supervisory Syndics Committee. 4) To Dividends
payable to preferred shares, if any; any overdue cumulative dividends are to be
paid out first. 5) To the amortization, in whole or in part, of issued
participation stock, as applicable. 6) After payment of the additional
participation of preferred shares, the remainder, until reaching a sum that
shall not exceed the profits received in cash during the fiscal year, shall be
distributed in the manner resolved at the Shareholders' Meeting. It may be
distributed, either totally or partially, to optional reserve funds that are
reasonable and consistent with reasonable prudent management practices, to a new
account or to dividends payable to common stock. 7 degrees Dividends shall be
paid pro rata to the respective payments, within one year of their approval. If
the Company is authorized to make a public offering of its shares of stock, the
dividends, if only in cash, shall be paid within 30 (thirty) calendar days of
their approval by the shareholders at the pertinent Shareholders' Meeting or
within a longer or shorter term as may be established by the applicable laws and
regulations. The dividends that have not been collected three years after being
placed at the disposal of the Shareholders shall be forfeited in favor of the
Company. The amount of the so forfeited dividends shall be allocated to the
reserve fund. 8) The distribution of advanced or interim dividends or of
dividends resulting from the quarterly balance sheets in cash, as authorized by
the second paragraph of Section 224 of the Business Companies Law shall be
decided by the Board of Directors on the basis of the special or quarterly
balance sheets, accompanied by the opinion of the Supervisory Syndics Committee.
CHAPTER VIII. DISSOLUTION AND LIQUIDATION. ARTICLE 25: a. The events of
dissolution are those established in the Business Companies Law. b. Upon the
dissolution of the Company, the ensuing liquidation may be carried out by the
Board of Directors or by the liquidators appointed at a Shareholders' Meeting.
The liquidation shall be conducted under the supervision of the
GRUPO FINANCIERO GALICIA
Supervisory Syndics Committee. Liabilities being cancelled, and capital refunded taking into account the preferences of the shares of preferred stock or of participation stock or the payment of negotiable obligations, as the case may be, the balance shall be distributed among the shareholders pro rata to their shares and the rights attaching to each share.
GRUPO FINANCIERO GALICIA
REGISTRATION WITH THE PUBLIC REGISTRY OF COMMERCE
DATE NO. FOLIO BOOK VOLUME ---- --- ----- ---- ------ Sept. 30, 1999 14,519 -- 7 - of Stock Companies AMENDMENTS March 9, 2000 3,385 -- 10 - of Stock Companies July 17, 2000 10,203 -- 11 - of Stock Companies July 17, 2000 10,202 -- 11 - of Stock Companies Aug. 9, 2000 11,670 -- 12 - of Stock Companies Aug. 9, 2000 11,670 -- 12 - of Stock Companies July 3, 2001 8,569 -- 15 - of Stock Companies Aug. 22, 2003 11,891 -- 22 - of Stock Companies |
Exhibit 2.1
EXECUTION COPY
BANCO DE GALICIA Y BUENOS AIRES S.A.
AND
THE BANK OF NEW YORK,
as TRUSTEE, CO-REGISTRAR, TRANSFER AGENT AND PAYING AGENT
AND
BANCO RIO DE LA PLATA S.A.,
as REGISTRAR AND PAYING AGENT AND TRANSFER AGENT IN ARGENTINA
INDENTURE
Dated as of May 18, 2004
TABLE OF CONTENTS
Page ---- ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE......................................................... 2 Section 1.1. Definitions..................................................................................... 2 Section 1.2. Incorporation by Reference of Trust Indenture Act............................................... 15 Section 1.3. Rules of Construction........................................................................... 15 ARTICLE II THE NOTES......................................................................................... 16 Section 2.1. Form and Dating; Title and Terms; Additional Notes.............................................. 16 Section 2.2. Execution and Authentication.................................................................... 17 Section 2.3. Registrar and Paying Agent...................................................................... 18 Section 2.4. Paying Agent to Hold Money in Trust............................................................. 19 Section 2.5. Holder Lists.................................................................................... 19 Section 2.6. Global Note Provisions.......................................................................... 19 Section 2.7. Legends......................................................................................... 20 Section 2.8. Transfer and Exchange........................................................................... 21 Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes...................................................... 27 Section 2.10. Temporary Notes................................................................................ 28 Section 2.11. Cancellation................................................................................... 28 Section 2.12. Defaulted Interest............................................................................. 28 Section 2.13. Payment of Additional Amounts.................................................................. 29 ARTICLE III COVENANTS........................................................................................ 29 Section 3.1. Terms of Conditions............................................................................. 29 Section 3.2. Maintenance of Office or Agency................................................................. 29 Section 3.3. Payment of Taxes and Other Claims............................................................... 30 Section 3.4. Limitation on Incurrence of Indebtedness........................................................ 30 Section 3.5. Limitations on Restricted Payments.............................................................. 30 Section 3.6. Pro Rata Prepayment upon Prepayment of Restructured Bank Indebtedness........................... 31 Section 3.7. Maintenance of Insurance........................................................................ 32 Section 3.8. Transactions with Affiliates.................................................................... 32 Section 3.9. Limitation on Asset Sales....................................................................... 32 Section 3.10. Further Instruments and Acts................................................................... 33 Section 3.11. Waiver of Stay, Extension or Usury Laws........................................................ 33 ARTICLE IV MERGERS, CONSOLIDATIONS, ETC...................................................................... 33 Section 4.1. Mergers, Consolidations, etc.................................................................... 33 ARTICLE V OPTIONAL AND MANDATORY REDEMPTION OF NOTES......................................................... 34 Section 5.1. Optional Redemption............................................................................. 34 Section 5.2. Election to Redeem.............................................................................. 34 |
Section 5.3. Mandatory Redemption............................................................................ 34 Section 5.4. Notice of Redemption............................................................................ 35 Section 5.5. Selection of Notes to Be Redeemed in Part....................................................... 35 Section 5.6. Deposit of Redemption Price..................................................................... 35 Section 5.7. Notes Payable on Redemption Date................................................................ 36 Section 5.8. Unredeemed Portions of Partially Redeemed Note.................................................. 36 Section 5.9. Open Market Purchases........................................................................... 36 ARTICLE VI DEFAULTS AND REMEDIES............................................................................. 36 Section 6.1. Events of Default............................................................................... 36 Section 6.2. Acceleration.................................................................................... 37 Section 6.3. Other Remedies.................................................................................. 39 Section 6.4. Waiver of Past Defaults......................................................................... 39 Section 6.5. Control by Majority............................................................................. 39 Section 6.6. Limitation on Suits............................................................................. 39 Section 6.7. Unconditional Right of Holders to Receive Principal, Premium, Additional Amounts and Interest... 40 Section 6.8. Collection Suit by Trustee...................................................................... 40 Section 6.9. Trustee May File Proofs of Claim, etc........................................................... 40 Section 6.10. Priorities..................................................................................... 41 Section 6.11. Undertaking for Costs.......................................................................... 41 Section 6.12. Restoration of Rights and Remedies............................................................. 41 Section 6.13. Rights and Remedies Cumulative................................................................. 42 Section 6.14. Delay or Omission Not Waiver................................................................... 42 ARTICLE VII TRUSTEE.......................................................................................... 42 Section 7.1. Duties of Trustee............................................................................... 42 Section 7.2. Rights of Trustee............................................................................... 43 Section 7.3. Individual Rights of Trustee.................................................................... 45 Section 7.4. Trustee's Disclaimer............................................................................ 45 Section 7.5. Notice of Defaults.............................................................................. 45 Section 7.6. Reports by Trustee to Holders................................................................... 45 Section 7.7. Compensation and Indemnity...................................................................... 45 Section 7.8. Replacement of Trustee.......................................................................... 46 Section 7.9. Successor Trustee by Merger..................................................................... 47 Section 7.10. Eligibility; Disqualification.................................................................. 47 Section 7.11. Preferential Collection of Claims Against Company.............................................. 48 Section 7.12. Appointment of Co-Trustee...................................................................... 48 ARTICLE VIII DEFEASANCE; DISCHARGE OF INDENTURE.............................................................. 49 Section 8.1. Legal Defeasance and Covenant Defeasance........................................................ 49 Section 8.2. Conditions to Defeasance........................................................................ 50 Section 8.3. Application of Trust Money...................................................................... 51 Section 8.4. Repayment to Company............................................................................ 51 |
Section 8.5. Indemnity for U.S. Government Obligations....................................................... 52 Section 8.6. Reinstatement................................................................................... 52 Section 8.7. Satisfaction and Discharge...................................................................... 52 ARTICLE IX AMENDMENTS........................................................................................ 53 Section 9.1. Supplemental Indentures Without Consent of Holders.............................................. 53 Section 9.2. Supplemental Indentures with Consent of Holders................................................. 53 Section 9.3. Execution of Supplemental Indentures............................................................ 54 Section 9.4. Effect of Supplemental Indentures............................................................... 55 Section 9.5. Conformity with Trust Indenture Act............................................................. 55 Section 9.6. Reference in Notes to Supplemental Indentures................................................... 55 Section 9.7. Meetings of Holders; Modification and Waiver.................................................... 55 ARTICLE X SUBORDINATION...................................................................................... 57 Section 10.1. Agreement To Subordinate....................................................................... 57 Section 10.2. Acceleration of Payment of Subordinated Notes.................................................. 58 Section 10.3. Rights of Trustee and Paying Agent............................................................. 58 ARTICLE XI MISCELLANEOUS..................................................................................... 58 Section 11.1. Trust Indenture Act Controls................................................................... 58 Section 11.2. Notices........................................................................................ 59 Section 11.3. Communication by Holders with Other Holders.................................................... 60 Section 11.4. Certificate and Opinion as to Conditions Precedent............................................. 60 Section 11.5. Statements Required in Certificate or Opinion.................................................. 60 Section 11.6. Rules by Trustee, Paying Agent and Registrar................................................... 60 Section 11.7. Legal Holidays................................................................................. 60 Section 11.8. Governing Law, etc............................................................................. 61 Section 11.9. No Recourse Against Others..................................................................... 62 Section 11.10. Successors.................................................................................... 62 Section 11.11. Duplicate and Counterpart Originals........................................................... 62 Section 11.12. Severability.................................................................................. 62 Section 11.13. Currency Indemnity............................................................................ 62 Section 11.14. Table of Contents; Headings................................................................... 63 |
EXHIBIT A-1 FORM OF LONG TERM NOTE EXHIBIT A-2 FORM OF MEDIUM TERM NOTE EXHIBIT A-3 FORM OF SUBORDINATED NOTE EXHIBIT B FORM OF CERTIFICATE FOR TRANSFERS TO QIBS iii |
EXHIBIT C FORM OF CERTIFICATE FOR TRANSFERS TO ACCREDITED INVESTORS EXHIBIT D FORM OF CERTIFICATE FOR TRANSFERS TO NON-U.S. PERSONS PURSUANT TO REGULATIONS EXHIBIT E FORM OF RULE 144 CERTIFICATION EXHIBIT F TERMS AND CONDITIONS OF THE NOTES OF THE PROGRAM EXHIBIT G FORM OF LUXEMBOURG SIDE AGREEMENT iv |
INDENTURE, dated as of May 18, 2004, among Banco de Galicia y Buenos |
Aires S.A., an Argentine corporation (the "Company"), incorporated on July 15, 1905, with a term of duration elapsing on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, (C1038AAI) Buenos Aires, Argentina, The Bank of New York as trustee, co-registrar, a transfer agent and a paying agent (the "Trustee," the "Co-Registrar," a "Transfer Agent" and a "Paying Agent," respectively), and Banco Rio de la Plata S.A. as registrar and a transfer agent and a paying agent in Argentina (the "Registrar," a "Paying Agent" and a "Transfer Agent," respectively).
WHEREAS, the Company is issuing U.S. Dollar-Denominated Notes due 2010 (the "Medium Term Notes"), U.S. Dollar-Denominated Notes due 2014 (the "Long Term Notes") and Subordinated Notes due 2019 (the "Subordinated Notes") (the Medium Term Notes, Long Term Notes and Subordinated Notes shall each be deemed a Class (as defined below)) under its US$2,000,000,000 Global Medium Term Note Program (the "Program") authorized by resolutions of the shareholders of the Company passed on September 30, 2003, by resolutions of the Board of Directors of the Company passed on December 4, 2003 and February 4, 2004 and by the Comision Nacional de Valores (the "CNV") through Resolution 14708, dated December 29, 2003. The Company has duly authorized the execution and delivery of this Indenture pursuant to the resolution of the Board of Directors of the Company dated December 22, 2003 and resolution of the shareholders of the Company dated September 30, 2003. The Program is described in the offering memorandum, (the "Offering Memorandum") and was established pursuant to the fiscal and paying agency agreement, dated as of February 13, 2004, among the Company, The Bank of New York, as fiscal agent, co-registrar, transfer agent and principal paying agent, Kredietbank S.A. Luxembourgeoise, as paying agent and transfer agent in Luxembourg, and Banco Rio de la Plata S.A., as registrar (the "Fiscal and Paying Agency Agreement").
WHEREAS, on September 30, 2003, the Company had a total share capital issued and authorized of Ps.468,662,000 face value and the Company's net worth was Ps.1,397,552,000 face value;
WHEREAS, the corporate purpose and principal activity of the Company consists of carrying out authorized banking activities and financial transactions contemplated in and permitted by Argentine Law No. 21,526, as amended (the "Financial Institutions Law");
WHEREAS, the Trustee has reviewed the English translation of the resolutions of the shareholders of the Company adopted on September 30, 2003 and of the resolution of the Board of Directors of the Company adopted on December 4, 2003, authorizing the issuance of up to an aggregate principal amount of US$2,000,000,000 of Notes (as defined below) in one or more Classes (as defined below) and hereby confirms that the terms and conditions and the form of Notes substantially reflect the terms of said resolutions;
WHEREAS, a pricing supplement which sets forth the terms and conditions of each Class of Notes and a Spanish language translation thereof was approved by (i) resolutions of the Board of Directors of the Company, dated December 22, 2003 and April 27, 2004 and (ii) the CNV through Resolution 14773, dated April 23, 2004; and
WHEREAS, each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders (as defined below) of the Notes issued hereunder.
NOW, THEREFORE, it is agreed by the parties:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions
"AI" means an "accredited investor," as defined in Rule 50l(a) under the Securities Act, other than a QIB.
"AI Note" means a Certificated Note that is a Restricted Note held by an AI.
"Acquired Indebtedness" means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary or at the time it merges or consolidates with the Company or any of its Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness shall be deemed to have been Incurred at the time such Person becomes a Subsidiary or at the time it merges or consolidates with the Company or a Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
"Additional Amounts" has the meaning assigned to it in Condition 9 of the Terms and Conditions.
"Additional Notes" has the meaning assigned to it in Section 2.1.
"Affiliate" of any specified Person means any other Person which, directly or indirectly, is in control of or is controlled by or is under common control with such specified Person.
"Affiliate Transaction" means any agreement to sell, lease, transfer, charge or otherwise dispose of or purchase any Property, or any contract, loan, advance or guaranty, in each case entered into with or for the benefit of any Affiliate, except the following:
(a) any employment agreement;
(b) any transaction exclusively between or among any of the Company and the Subsidiaries of the Company, provided such transaction is not otherwise prohibited by this Indenture; or
(c) any other affiliate transaction which does not exceed US$5,000,000.
"Agent" means any of the Registrar, Co-Registrar, Transfer Agent, Paying Agent, Authenticating Agent or Note Custodian.
"Agent Members" has the meaning assigned to it in Section 2.6(b).
"Applicable Capital Adequacy Requirements" means, on any determination date, all applicable rules and regulations established by competent bank regulatory authorities in Argentina then in effect and having the force of law which establish mandatory minimum levels of capital for the Company or the Subsidiary in question, as the case may be, taking into account any waivers, suspensions or deferrals of, or limitations placed upon the scope of, such rules and regulations by such regulatory authorities (whether formally or informally, through statements of competent officials or bodies or through enforcement practice).
"Argentine Banking GAAP" means the accounting rules of the Argentine Central Bank, which prescribes the generally accepted accounting principles for all banks in Argentina.
"Argentine Central Bank" means the Banco Central de la Republica Argentina.
"Authenticating Agent" has the meaning assigned to it in Section 2.2(d).
"Authorized Agent" has the meaning assigned to it in Section 11.8(c).
"Authorized Officer" has the meaning assigned to it in Section 2.2(a).
"Bank Indebtedness" means the Original IFC Loans, the Original IIC Loans and the Original Dollar Loans (each term as defined in the Note Purchase Agreement).
"Bankruptcy Law" means section 49(e) of the Financial Institutions Law or Title 11, U.S. Code or any similar Federal, state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Business Day" means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York City.
"Capital Stock" of any Person means any and all shares, interests, rights to purchase, warrants, options, participation or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
"Cash Equivalents" means:
(i) securities issued or directly and fully guaranteed or insured by the United States or the United Kingdom government or any agency or instrumentality thereof, having maturities of not more than one year from the date of acquisition;
(ii) marketable general obligations issued by the United Kingdom or any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having a credit rating of at least "A" or the equivalent thereof by Standard & Poor's Ratings Services, or "A" or the equivalent thereof by Moody's Investors Service, Inc.;
(iii) certificates of deposit, time deposits, euro time deposits, overnight bank deposits or bankers' acceptances having maturities of not more than one year from the date of acquisition thereof issued by any commercial bank the long-term debt of which is rated at the time of acquisition thereof at least "A" or the equivalent thereof by Standard & Poor's Ratings Services, or "A" or the equivalent thereof by Moody's Investors Service, Inc., and having combined capital and surplus in excess of US$500 million;
(iv) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (i), (ii) and
(iii) entered into with any bank meeting the qualifications specified in
clause (iii) above;
(v) commercial paper rated at the time of acquisition thereof at least "A-2" or the equivalent thereof by Standard & Poor's Ratings Services or "P-2" or the equivalent thereof by Moody's Investors Service, Inc. (or carrying an equivalent rating by another rating agency that is nationally recognized in the United States, if both of the two named rating agencies cease publishing ratings of investments) and in each case maturing within one year after the date of acquisition thereof; and
(vi) interests in any investment company or money market fund which
invests solely in instruments of the type specified in clauses (i) through
(v) above.
"CCC" means the Commodity Credit Corporation.
"Certificated Note" means any Note issued in fully-registered
certificated form (other than a Global Note), which shall be substantially in
the form of Exhibit A-1, A-2 or A-3, with appropriate legends as specified in
Section 2.7 and Exhibit A-1, A-2 or A-3.
"Change of Control" means any person or "group" (within the meaning of Section 13(d) or 14(d) of the Exchange Act, as in effect on the issuance date of the Senior Notes), other than the Permitted Holders, acquiring, directly or indirectly, beneficial ownership of more than 50% on a fully diluted basis, of the economic or voting interest in the Bank's capital stock.
"Class" means an issuance of Notes under the Program that is expressed to be consolidated and form a single series of Notes issued thereunder.
"CNV" has the meaning set forth in the preamble to this Indenture.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in the introductory paragraph to this Indenture and its successors and assigns, including the Company's Successor Corporation, if any, that becomes such in accordance with Article IV.
"Company Order" has the meaning assigned to it in Section 2.2(c).
"Company's Successor Corporation" has the meaning assigned to it in
Section 4.1.
"Control when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have the meanings correlative to the foregoing.
"Co-Registrar" has the meaning set forth in the preamble to this Indenture.
"Corporate Trust Office" has the meaning assigned to it in Section 2.3(c).
"Covenant Defeasance" has the meaning assigned to it in Section 8.1(c).
"Currency Agreement" means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement to which such Person is a party.
"Default" means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
"Defaulted Interest" has the meaning assigned to it in, in the case of the Long Term Notes, Exhibit A-1, in the case of the Medium Term Notes, Exhibit A-2, and in the case of the Subordinated Notes, Exhibit A-3.
"Disqualified Stock" means, with respect to any Person, any Capital Stock of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event: (i) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; (ii) is convertible or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Company or a Significant Subsidiary); or (iii) is redeemable at the option of the holder thereof, in whole or in part, in each case on or prior to the date that is 91 days after the date (a) on which the Notes mature or (b) on which there are no Notes outstanding, provided that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company to repurchase such Capital Stock upon the occurrence of a Change of Control shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or
exchangeable) provide that the Company may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by the Company with the provisions of Article IV and such repurchase or redemption complies with Section 3.4.
"Distribution Compliance Period" means, in respect of any Regulation
S Global Note, the 40 consecutive days beginning on and including the later of
(a) the day on which any Notes represented thereby are offered to persons other
than distributors (as defined in Regulation S under the Securities Act) pursuant
to Regulation S and (b) the issue date for such Notes.
"DTC" means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Company that is a clearing agency registered under the Exchange Act.
"Dollar Equivalent" means, with respect to (i) any monetary amount denominated in U.S. Dollars, such amount, (ii) any monetary amount denominated in pesos, at any time for the determination thereof, the amount of U.S. Dollars obtained by converting pesos into U.S. Dollars at the EMTA Rate or, if such rate shall not be available, at the rate determined by the Paying Agent in Argentina based on the average of exchange rate for the purchase of U.S. Dollars with pesos as reported at the close of two (2) Business Days prior to the date of determination by Banco Rio de la Plata S.A., Deutsche Bank S.A. and the branch of Citibank, N.A. in Argentina (or if any of such entities shall not report such quotations, by any of HSBC Bank Argentina S.A., Bankboston N.A. Buenos Aires Branch or JP Morgan Chase Bank Buenos Aires Branch, respectively), and (iii) a currency other than U.S. Dollars or pesos, at any time for the determination thereof, the amount of U.S. Dollars obtained by converting such other currency into U.S. Dollars at the average of the spot rates for the purchase of U.S. Dollars with such other currency, as quoted by the Paying Agent in Argentina at approximately 11:00 a.m. (New York City time), on the date of determination thereof specified herein or, if the date of determination thereof is not otherwise specified herein, in each case on the date two (2) Business Days prior to such determination.
"EMTA Rate" means the rate of exchange used for the purchase of U.S. Dollars with pesos as quoted by the Emerging Markets Trading Association (for purposes of this definition, the "EMTA") on its website at www.emta.org/aservices (or such other web page of EMTA where the quotation is published if this web address changes) two (2) Business Days prior to the date of determination, at 2:00 p.m. (Buenos Aires time).
"Encumbrance" has the meaning assigned to it in Condition 10(e) of the Terms and Conditions.
"Event of Default" has the meaning assigned to it in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fiscal and Paying Agency Agreement" has the meaning assigned to such term in the recitals hereto.
"Global Note" means any Note issued in fully-registered certificated form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of Exhibit A-1, A-2 or A-3, with appropriate legends as specified in Section 2.7 and Exhibit A-1, A-2 or A-3.
"Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
(1) to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well; to purchase assets, goods, securities or services; to take-or-pay; or to maintain financial statement conditions or otherwise, or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part, provided that "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business.
"Guarantee" used as a verb has a corresponding meaning.
"Hedging Obligations" means the obligations of any Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means the Person in whose name a Note is registered in the Note Register.
"IFC" means the International Finance Corporation.
"IIC" means the Inter-American Investment Corporation.
"Incur" means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring" shall have meanings correlative to the preceding).
"Indebtedness" has the meaning assigned to such term in the Terms and Conditions.
"Indenture" means this Indenture as amended or supplemented from time to time.
"Initial Notes" means the Notes issued under this Indenture on the Issue Date.
"Interest Payment Date" means with respect to the interest payment date of Notes, the date of payment of interest with respect thereto.
"Interest Rate Agreement" of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of interest hedging agreements.
"Issue Date" means May 18, 2004.
"Issue Date Notes" means, in the case of Long Term Notes, US$__________ aggregate principal amount of such Notes, in the case of Medium Term Notes, US$______________ aggregate principal amount of such Notes and, in the case of Subordinated Notes, US$______________ aggregate principal amount of such Notes, in each case, originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
"Legal Defeasance" has the meaning assigned to it in Section 8.1(b).
"Legal Holiday" has the meaning assigned to it in Section 11.7.
"Long Term Notes" has the meaning assigned to such term in the recitals hereto.
"Luxembourg Paying Agent" has the meaning assigned to it in Section 2.3(e).
"Luxembourg Transfer Agent" has the meaning assigned to it in
Section 2.3(e).
"Medium Term Notes" has the meaning assigned to such term in the recitals hereto.
"Net Cash Proceeds" means, in connection with any issuance or incurrence of Debt, issuance of Capital Stock or other equity security, or sale, transfer, lease or other disposition of Property, as the case may be, the cash proceeds received from such issuance, incurrence, sale, transfer, lease, or other disposition, net of attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
"Negotiable Obligations Law" means Argentine Law No. 23,576, as amended by Argentine Law No. 23,963, and as may be further amended from time to time.
"Non-U.S. Person" means a Person that is not a U.S. person, as defined in Regulation S.
"Note Custodian" means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee.
"Note Purchase Agreement" means that certain Note Purchase Agreement, dated as of April 27, 2004, among the Company, as issuer, Barclays Bank PLC, as documentation agent, the holders from time to time party thereto and Deutsche Bank Trust Company Americas, as agent.
"Note Register" has the meaning assigned to it in Section 2.3(a).
"Notes" or "Note" means any of the Long Term Notes, Medium Term Notes and the Subordinated Notes issued and authenticated pursuant to this Indenture.
"Offering Memorandum" has the meaning assigned to such term in the recitals hereto.
"Officer" means, when used in connection with any action to be taken by the Company, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller or the Secretary of the Company.
"Officers' Certificate" means, when used in connection with any action to be taken by the Company, a certificate signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an employee of or counsel for the Company, and who shall be reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes, or portions thereof, for which payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as Paying Agent) for the Holders of such Notes; provided that, if the Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Notes which have been surrendered pursuant to Section 2.9 or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company; and
(iv) solely to the extent provided in Article VIII, Notes which are subject to Legal Defeasance or Covenant Defeasance as provided in Article VIII;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" has the meaning set forth in the preamble to this Indenture.
"Payment Date" means the stated due date of an installment of principal and/or interest on each Class of the Notes as specified in, in the case of the Long Term Notes, Exhibit A-1, in the case of the Medium Term Notes, Exhibit A-2, and in the case of the Subordinated Notes, Exhibit A-3.
"Permitted Holders" shall mean any member of the Escasany, Ayerza and/or Braun families and/or EBA Holding S.A.
"Permitted Indebtedness" means:
(1) the Notes to be issued hereunder;
(2) Indebtedness of the Company and its Subsidiaries existing as of the date of this Agreement;
(3) deposits with, funds collected by and banker's acceptances and letters of credit issued by the Company and its Subsidiaries in the ordinary course of business;
(4) Indebtedness arising solely under any transaction in which the Company or any of its Subsidiaries acts solely in a fiduciary or agency capacity;
(5) Hedging Obligations entered into in the ordinary course of business and not for speculative purposes;
(6) intercompany Indebtedness between the Company and any Subsidiary or between any Subsidiaries, provided that:
(a) if the Company is the obligor on such Indebtedness, such Indebtedness is (A) Indebtedness for money borrowed or (B) expressly subordinated to the prior payment in full of all obligations under the Notes and this Indenture, and
(b) in the event that at any time any such Indebtedness ceases to be held by the Company or a Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause at the time such event occurs;
(7) Indebtedness of the Company or any of its Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (including daylight overdrafts paid in full by the close of business on the day such overdraft was Incurred) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within two business days of Incurrence;
(8) Indebtedness of the Company or any of its Subsidiaries represented by letters of credit for the account of the Company or any Subsidiary, as the case may be, in order to provide security for workers' compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business;
(9) Refinancing Indebtedness in respect of Indebtedness existing as of the date hereof and any other Indebtedness permitted to be incurred pursuant to Section 3.4;
(10) Indebtedness owing to the Argentine Central Bank or to any other Argentine regulatory; or
(11) Indebtedness not otherwise permitted by clauses (1) through
(10) above; provided that the aggregate principal amount outstanding at any one
time of any Indebtedness Incurred pursuant to this clause 11 shall not exceed
US$20 million (or the equivalent thereof in other currencies).
"Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof or other entity.
"Plan" the "Galicia Capitalization and Liquidity Plan" (as supplement on March 22, 2002 and April 11, 2002) submitted by the Company to the Argentine Central Bank, in accordance the Financial Institutions Law, on March 21, 2002.
"Prepayment" has the meaning assigned to it in Section 3.6.
"Private Placement Legend" has the meaning assigned to it in Section 2.7(b).
"Program" has the meaning assigned to such term in the recitals hereto.
"Property" means any asset, revenue or any other property, whether tangible or intangible, real or personal, including without limitation, any right to receive income.
"QIB" means any "qualified institutional buyer" as defined in Rule 144A.
"Record Date" has the meaning assigned to it in, in the case of the Long Term Notes, Exhibit A-1, in case of the Medium Term Notes, Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3, as the case may be.
"Redemption Date" means, with respect to any redemption of Notes, the date of redemption with respect thereto.
"Refinance" means, in respect of any security or Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue a security or Indebtedness in exchange or replacement for, such security or Indebtedness in whole or in part. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means any refinancing by the Company or any Subsidiary thereof of Permitted Indebtedness, to the extent that such refinancing does not:
(1) result in an increase in the aggregate principal amount of the Indebtedness of such Person as of the date of such proposed Refinancing (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and plus the amount of reasonable expenses incurred by such Person in connection with such refinancing); or
(2) result in the Incurrence of Indebtedness with:
(a) a Weighted Average Life to Maturity that is less than the Weighted Average Life to Maturity of the Indebtedness being refinanced, or
(b) a final maturity earlier than the final maturity of the Indebtedness being refinanced; provided, that:
- if such Indebtedness being refinanced is Indebtedness of the Company, then such refinancing Indebtedness shall be Indebtedness of the Company, and
- if such Indebtedness being refinanced is subordinated Indebtedness, then such refinancing Indebtedness shall be subordinate to the Senior Notes at least to the same extent and in the same manner as the Indebtedness being refinanced.
"Registrar" has the meaning set forth in the preamble to this Indenture.
"Registration Statement" means an effective shelf registration statement under the Securities Act that registers the resale by Holders (and beneficial owners) of Notes (or beneficial interests therein) originally issued pursuant to an exemption from registration under the Securities Act.
"Regulated Subsidiary" means a Subsidiary of a Person whose activities are regulated by the Argentine Central Bank or, if the Subsidiary's primary operations are in a country other than Argentina, an equivalent authority in such country.
"Regulation S" means Regulation S under the Securities Act or any successor regulation.
"Regulation S Global Note" has the meaning assigned to it in Section 2.1(f).
"Resale Restriction Termination Date" means, for any Restricted Note (or beneficial interest therein), two years (or such other period specified in Rule 144(k)) from the Issue Date.
"Restricted Note" means any Issue Date Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act, until such time as:
(i) such Issue Date Note (or beneficial interest therein) has been transferred pursuant to a Registration Statement;
(ii) such Note is a Rule 144A Global Note and the Resale Restriction Termination Date therefor has passed;
(iii) such Note is a Regulation S Global Note and the Distribution Compliance Period therefor has terminated; or
(iv) the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.8(e) or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.
"Restricted Payment" has the meaning assigned to it in Section 3.4.
"Restructured Bank Indebtedness" means collectively, (i) the restructured loans to the IFC under each of the long-term, medium-term and subordinated loan agreements, each dated as of April 27, 2004, between the Company and the IFC, (ii) the restructured loans to the IIC under each of the long-term, medium-term and subordinated loan agreements, each dated as of April 27, 2004, between the Company and the IIC, (iii) the dollar loan agreement, dated as of April 27, 2004, between the Company and the CCC, (iv) the Note Purchase Agreement, (v) the trade credit agreement, dated as of April 27, 2004, among the Company, Barclays Bank PLC, as documentation agent, the lenders party thereto from time to time, and Deutsche Bank Trust Company Americas, as agent and letter of credit bank and (vi) the debt evidenced by certain restructured trade-related debt transactions.
"Rule 144" means Rule 144 under the Securities Act (or any successor rule).
"Rule 144A" means Rule 144A under the Securities Act (or any successor rule).
"Rule 144A Global Note" has the meaning assigned to it in Section 2.1(e).
"SEC" means the Securities and Exchange Commission.
"SEC Rule" means any rule adopted by the SEC under the U.S. securities laws.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (i) the Senior Notes, (ii) the notes to be issued by, and the loans of, the Company due 2014, in each case which are part of the Restructured Bank Indebtedness, (iii) the notes to be issued by, and the loans of, the Company due 2010, in each case which are part of the Restructured Bank Indebtedness and (vi) the debt evidenced by certain restructured trade-related debt transactions.
"Senior Notes" means the Long Term Notes and the Medium Term Notes.
"Significant Subsidiary" means a Subsidiary of the Company which is material to the condition, financial or otherwise, or to the earnings, operations, business affairs or business prospects of the Company and its Subsidiaries taken as a whole.
"Special Record Date" has the meaning assigned to it in Section 2.12(A).
"Stated Maturity" means with respect to each Class of Notes, the "Maturity Date" set forth in, in the case of the Long Term Notes, Exhibit A-1, in the case of the Medium Term Notes, Exhibit A-2, and in the case of the Subordinated Note, Exhibit A-3, as the case may be.
"Subordinated Note Event of Acceleration" has the meaning assigned to such term in Section 6.2 (b).
"Subordinated Notes" has the meaning assigned to such term in the recitals hereto.
"Subsidiary" means any corporation of which, at the time of determination, the Company and/or one or more of its Subsidiaries owns or controls directly or indirectly more than 50% of the shares of voting stock.
"Supervisory Committee" means the Comision Fiscalizadora of the Company, a committee of comptrollers appointed by the shareholders of the Company.
"Terms and Conditions" shall mean the section titled "Terms and Conditions of the Notes" set forth in the Offering Memorandum, as amended hereby, a copy of which is attached hereto as Exhibit F.
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as in effect on the date of this Indenture (except as otherwise provided in this Indenture).
"Transfer Agent" shall have the meaning set forth in the preamble to this Indenture.
"Trust Officer" means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
"Trustee" means the party named as such in the introductory paragraph of this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
"U.S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts.
"Voting stock", when used with reference to a Subsidiary, means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or agents of such corporation, provided that, for the purposes hereof, stock which carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing:
(1) the then outstanding aggregate principal amount of such Indebtedness, into
(2) the sum of the products obtained by multiplying:
(a) the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment.
Section 1.2. Incorporation by Reference of Trust Indenture Act. If any provision of this Indenture limits, qualifies or conflicts with the duties that would be imposed by any of Sections 310 to 317 of the TIA through operation of Section 318(c) thereof on any person if this Indenture were qualified under the TIA, such imposed duties shall control.
"Obligor" on the indenture securities means the Company and any other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by SEC Rule have the meanings assigned to them by such definitions.
Section 1.3. Rules of Construction. (a) Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with Argentine Banking GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural include the singular;
(6) references to the payment of principal of the Notes shall include applicable premium, if any; and
(7) references to payments on the Notes shall include Additional Amounts, if any.
(b) If there is any conflict with or inconsistencies between the provisions of this Indenture and the provisions of the Fiscal and Paying Agency Agreement, this Indenture shall control with respect to the Notes issued hereunder.
ARTICLE II
THE NOTES
Section 2.1. Form and Dating; Title and Terms; Additional Notes. (a)
The Notes will be issued in fully-registered certificated form without coupons,
in denominations that are integral multiples of US$1.00. The Notes and the
Trustee's certificate of authentication shall be substantially in the form of,
in the case of the Long Term Notes, Exhibit A-1, in case of the Medium Term
Notes, Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3. In
this Indenture, Notes that are not in temporary form are referred to as
"definitive Notes" and Notes that are in temporary form in accordance with
Section 2.10 are referred to as "temporary Notes". The definitive Notes shall be
printed, lithographed or engraved or produced by any combination of these
methods or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed and subject to the prior
approval of the CNV where applicable, all as determined by the Authorized
Officers, as evidenced by their execution of such Notes.
The Company agrees to cause the Notes to comply with Article 7 of the Negotiable Obligations Law.
The Company authorized the execution and delivery of Long Term Notes, Medium Term Notes and Subordinated Notes, under this Indenture, and any replacement Notes issued therefor in accordance with this Indenture. The Trustee shall authenticate additional Notes ("Additional Notes") thereafter in unlimited aggregate principal amount (so long as permitted by the terms of this Indenture) for original issue upon a Company Order in aggregate principal amount as specified in such Company Order (other than as provided in Section 2.9). Additional Notes shall have identical terms as the Initial Notes and shall be treated as a single class for all purposes under this Indenture, other than with respect to the date of issuance and issue price; provided, that the Company shall not issue Additional Notes that are treated for non-tax purposes as a single series with the Initial Notes but are treated as a separate series for U.S. federal income tax purposes, unless such Additional Notes would have an issue price for U.S. federal income tax purposes that is equal to or higher than the adjusted issue price of the Initial Notes at the time of the issuance of the Additional Notes and the yield of such Additional Notes
for U.S. federal income tax purposes would be equal to or less than the yield of the Initial Notes as determined at the time of the issuance of the Initial Notes.
(b) The Long Term Notes shall be known and designated as the "U.S. Dollar-Denominated Notes due 2014" of the Company. The Medium Term Notes shall be known and designated as the "U.S. Dollar-Denominated Notes due 2010" of the Company. The Subordinated Notes shall be known and designated as the "U.S. Dollar-Denominated Subordinated Notes due 2019" of the Company.
(c) The terms and provisions of the Notes, the form of which is in, in the case of the Long Term Notes, Exhibit A-1, in case of the Medium Term Notes, Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions and to be bound thereby. Each Holder shall vote and consent on all matters together with the Holders of the Class of Notes held by it and not with the Holders of any other Class of Notes.
(d) The Notes may have notations, legends or endorsements as specified in Section 2.7 or as otherwise required by law, stock exchange rule or DTC rule or usage. The Company and the Trustee shall approve the form of the Notes and any notation, legend or endorsement on them. Each Note shall be dated the date of its authentication.
(e) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a "Rule 144A Global Note").
(f) Notes originally offered and sold outside the United States of America will be issued in the form of one or more permanent Global Notes (each, a "Regulation S Global Note").
Section 2.2. Execution and Authentication. (a) The Notes shall be executed on behalf of the Company by each of (i) a member of its Board of Directors, whom shall be the Chairman of the Board, the President, the Chief Executive Officer or the Chief Financial Officer of the Company, and (ii) a member of its Supervisory Committee (the "Authorized Officers"). The signatures may be manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until an authorized signatory of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Company signed by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company (the "Company Order"). A Company Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
(d) The Trustee may appoint an agent (the "Authenticating Agent") reasonably acceptable to the Company to authenticate the Notes. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent.
(e) In case the Company:
(i) shall be consolidated with or merged into any other Person, or
(ii) shall convey, transfer, lease or otherwise dispose of its properties and assets substantially as an entirety to any Person,
and the Company's Successor Corporation resulting from such consolidation, or surviving such merger, or which shall have received a conveyance, transfer, lease or other disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Company's Successor Corporation, be exchanged for other Notes executed in the name of the Company's Successor Corporation with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Company Order of the Company's Successor Corporation, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of the Company's Successor Corporation pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, the Company's Successor Corporation, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
Section 2.3. Registrar, Co-Registrar, Transfer Agent and Paying Agent. (a) The Company shall maintain offices or agencies in the Borough of Manhattan, City of New York, where Notes may be presented to a registrar for registration of transfer or exchange, where Notes may be presented to a paying agent for payment and where the service of notices and demands to or upon the Company in respect of the Notes and this Indenture may be made. The Registrar shall keep a register of the Notes and of their transfer and exchange (the "Note Register"). The Company may have one or more co-registrars and one or more additional paying agents.
(b) The Company shall enter into an appropriate agency agreement with any registrar, paying agent or co-registrar not a party to this Indenture, which shall incorporate the terms of the TIA. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a registrar or paying agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 7.7. The Company may act as paying agent, registrar, co-registrar or transfer agent.
(c) The Company initially appoints the Trustee at its principal corporate trust office in the Borough of Manhattan, City of New York (the "Corporate Trust Office") as Co-
Registrar, a Paying Agent and a Transfer Agent, in connection with the Notes and this Indenture. The Co-Registrar shall keep a Note-Register.
(d) So long as it is required under Argentine law or by the CNV, the Company will maintain an office or agency of a registrar, a paying agent and a transfer agent in Buenos Aires, Argentina where the Notes may be presented for exchange, transfer and payment. The Company initially appoints Banco Rio de la Plata S.A. ("Banco Rio") at its principal office at Bartolome Mitre 480, (C1036AAH) Buenos Aires, Argentina, as Registrar, a Transfer Agent and a Paying Agent in Argentina for the performance of duties strictly in Argentina. Banco Rio is the representative of the Trustee in Argentina for the purpose of receiving notices, on behalf of the Trustee, from Holders and the CNV in Argentina.
(e) The Company initially appoints Kredietbank S.A. Luxembourgeoise, at its principal office at 43 Boulevard Royal, L-2955 Luxembourg, as a Paying Agent and a Transfer Agent pursuant to the side agreement substantially in the form attached hereto as Exhibit G.
Section 2.4. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Notes. If the Company or an Affiliate of the Company acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Company at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.4, the Paying Agent (if other than the Company) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Company or any Affiliate of the Company, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Company or such Affiliate as Paying Agent.
Section 2.5. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, or to the extent otherwise required under the TIA, the Registrar shall furnish to the Trustee, in writing at least seven Business Days before each Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.6. Global Note Provisions. (a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian, and (iii) bear the appropriate legend, as set forth in Section 2.7 and, in the case of the Long Term Notes, Exhibit A-1, in case of the Medium Term Notes, Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3.
Any Global Note may be represented by more than one certificate. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture.
(b) Members of, or participants in, DTC ("Agent Members") shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian under such Global Note, and DTC may be treated by the Company, the Trustee, the Paying Agents and the Registrar and any of their agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the Paying Agents or the Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished by DTC or impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Except as provided below, owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes. Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such interests if:
(i) DTC notifies the Company that it is unwilling or unable to continue as depositary for such Global Note or DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Company within 90 days of such notice,
(ii) the Company executes and delivers to the Trustee and Registrar an Officers' Certificate stating that such Global Note shall be so exchangeable, or
(iii) an Event of Default has occurred and is continuing and the Co-Registrar has received a request from DTC to issue Certificated Notes to owners of beneficial interests in a Global Note in exchange for such interests.
In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this paragraph (c), such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and upon Company Order the Trustee shall authenticate and deliver, to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations.
(d) In connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Company shall execute, and the Trustee shall authenticate and deliver to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged.
Section 2.7. Legends. (a) Each Global Note shall bear the legend specified therefor in, in the case of the Long Term Notes, Exhibit A-1, in case of the Medium Term Notes, Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3, in the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in, in the case of the Long Term Notes, Exhibit A-1, in case of the Medium Term Notes,
Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3, on the
face thereof (together with, if applicable, the legend specified in paragraph
(c) of this Section 2.7, the "Private Placement Legend").
(c) Each Certificated Note that is a Restricted Note shall bear the legend specified therefor in, in the case of the Long Term Notes, Exhibit A-1, in the case of the Medium Term Notes, Exhibit A-2, and, in the case of the Subordinated Notes, Exhibit A-3, on the face thereof. Upon the transfer, exchange or replacement of a Certificated Note that is a Restricted Note, or upon specific request, the Notes Custodian and Co-Registrar shall refuse to remove the applicable legend specified therefor, unless there is delivered to the Company, the Notes Custodian and Co-Registrar satisfactory evidence, including an opinion of counsel reasonably satisfactory to the Company, that neither such legend nor the restrictions on transfer set forth therein are required to ensure compliance with the Securities Act.
Section 2.8. Transfer and Exchange. (a) The following provisions shall apply with respect to any proposed transfer of an interest in a Rule 144A Global Note that is a Restricted Note:
(i) If (1) the owner of a beneficial interest in a Rule 144A Global Note wishes to transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to Regulation S and (2) such Non-U.S. Person wishes to hold its interest in the Notes through a beneficial interest in the Regulation S Global Note, (x) upon receipt by the Note Custodian and the Co-Registrar of:
(A) written instructions from the Holder of the Rule 144A Global Note directing the Note Custodian and the Co-Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Note equal to the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred, and
(B) a certificate in the form of Exhibit D from the transferor,
and (y) subject to the rules and procedures of DTC, the Note Custodian and the Co-Registrar shall increase the Regulation S Global Note and decrease the Rule 144A Global Note by such amount in accordance with the foregoing.
(ii) If the owner of a beneficial interest in a Rule 144A Global Note wishes to transfer such interest (or portion thereof) to an AI who shall take delivery thereof in the form of an AI Note, (x) upon receipt by the Note Custodian and the Co-Registrar of:
(A) written instructions from the Holder of the Rule 144A Global Note directing the Note Custodian and the Co-Registrar to decrease or cause to be decreased a beneficial interest in the Rule 144A Global Note equal to the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred,
(B) a certificate in the form of Exhibit C from the transferee, and
(C) an opinion of counsel acceptable to the Company that such transfer is in compliance with the Securities Act,
and (y) subject to the rules and procedures of DTC, the Note Custodian and the Co-Registrar shall decrease the Rule 144A Global Note by such amount in accordance with the foregoing.
Upon satisfaction of the conditions set forth in this Section 2.8(a)(ii), the Company will execute and the Trustee will authenticate and deliver to the AI designated in the certificate in the form of Exhibit C an AI Note in the appropriate principal amount. Any AI Note issued upon transfer of a beneficial interest in a Rule 144A Global Note will be registered in the Note Register in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest requests in such certificate. The Trustee will deliver such AI Note to the AI in whose names such AI Note is so registered.
(b) The following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note prior to the expiration of the Distribution Compliance Period therefor:
(i) If the owner of a beneficial interest in a Regulation S Global Note wishes to transfer such interest (or any portion thereof) to a QIB pursuant to Rule 144A, (x) upon receipt by the Note Custodian and the Co-Registrar of:
(A) written instructions from the Holder of the Regulation S Global Note directing the Note Custodian and the Co-Registrar to credit or cause to be credited a beneficial interest in the Rule 144A Global Note equal to the principal amount of the beneficial interest in the Regulation S Global Note to be transferred, and
(B) a certificate in the form of Exhibit B duly executed by the transferor,
and (y) in accordance with the rules and procedures of DTC, the Note Custodian and the Co-Registrar shall increase the Rule l44A Global Note and decrease the Regulation S Global Note by such amount in accordance with the foregoing.
(ii) If the owner of a beneficial interest in a Regulation S Global Note wishes to transfer such interest (or portion thereof) to an AI who shall take delivery thereof in the form of an AI Note, (x) upon receipt by the Note Custodian and the Co-Registrar of:
(A) written instructions from the Holder of the Regulation S Global Note directing the Note Custodian and the Co-Registrar to decrease or cause to be decreased a beneficial interest in the Regulation S Global Note equal to the principal amount of the beneficial interest in the Regulation S Global Note to be transferred,
(B) a certificate in the form of Exhibit C from the transferee, and
(C) an opinion of counsel acceptable to the Company that such transfer is in compliance with the Securities Act,
and (y) subject to the rules and procedures of DTC, the Note Custodian and the Co-Registrar shall decrease the Regulation S Global Note by such amount in accordance with the foregoing.
Upon satisfaction of the conditions set forth in this Section 2.8(b)(ii), the Company will execute and the Trustee will authenticate and deliver to the AI designated in the certificate in the form of Exhibit C an AI Note in the appropriate principal amount. Any AI Note issued upon transfer of a beneficial interest in a Regulation S Global Note will be registered in the Note Register in such name or names and in such authorized denomination or denominations as the Holder of such beneficial interest requests in such certificate. The Trustee will deliver such AI Note to the AI in whose names such AI Note is so registered.
(c) The following provisions shall apply with respect to any proposed transfer of an AI Note (or portion thereof) that is a Restricted Note:
(i) If the Holder of an AI Note wishes to transfer such AI Note (or a portion thereof) to a QIB pursuant to Rule 144A, (x) upon receipt by the Note Custodian and the Co-Registrar of:
(A) such AI Note, duly endorsed as provided herein,
(B) written instructions from such Holder directing the Note Custodian and the Co-Registrar to credit or cause to be credited a beneficial interest in the Rule 144A Global Note equal to the principal amount (or portion thereof) of such AI Note to be transferred, and, if the entire principal amount of such AI Note is not being transferred, to issue one or more AI Notes to the transferor in an amount equal to the principal amount not transferred, and
(C) a certificate in the form of Exhibit B duly executed by the transferor,
(D) an opinion of counsel acceptable to the Company that such transfer is in compliance with the Securities Act,
and (y) subject to the rules and procedures of DTC, the Note Custodian and the Co-Registrar shall:
(1) cancel the AI Note delivered to it,
(2) increase the Rule 144A Global Note in accordance with the foregoing, and
(3) if applicable, issue to the AI transferor one or more AI Note(s) in accordance with the foregoing;
(ii) If (1) the Holder of an AI Note wishes to transfer such AI Note
(or a portion thereof) to a Non-U.S. Person pursuant to Regulation S and
(2) such Non-U.S. Person wishes to hold its interest in the Notes through
a beneficial interest in the Regulation S Global Note, (x) upon receipt by
the Note Custodian and the Co-Registrar of:
(A) such AI Note, duly endorsed as provided herein,
(B) written instructions from the Holder of such AI Note directing the Co-Registrar to credit or cause to be credited a beneficial interest in the Regulation S Global Note equal to the principal amount of the AI Note (or portion thereof) to be transferred, and, if the entire principal amount of such AI Note is not being transferred to issue one or more AI Notes to the transferor in an amount equal to the principal amount not transferred, and
(C) a certificate in the form of Exhibit D from the transferor,
(D) an opinion of counsel acceptable to the Company that such transfer is in compliance with the Securities Act,
and (y) subject to the rules and procedures of DTC, the Note Custodian and Co-Registrar shall, as applicable:
(1) cancel the AI Note delivered to it,
(2) increase the Regulation S Global Note for such amount in accordance with the foregoing, and
(3) if applicable, issue to the AI transferor one or more AI Note(s) in accordance with the foregoing.
(iii) If the Holder of an AI Note wishes to transfer such AI Note (or any portion thereof) to an AI, the Trustee shall authenticate and deliver AI Note(s) to the appropriate AI(s) upon receipt by Co-Registrar of:
(A) such AI Note, duly endorsed as provided herein,
(B) written instructions from such Holder directing the Co-Registrar to issue one or more AI Notes in the amounts specified to the transferee AI and, if the entire principal amount of such AI Note is not being transferred, to issue one or more AI Notes to the transferor in an amount equal to the principal amount not transferred,
(C) a certificate in the form of Exhibit C duly executed by the transferee, and
(D) an opinion of counsel acceptable to the Company that such transfer is in compliance with the Securities Act,
(d) Other Transfers. Any transfer of Restricted Notes not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the rules and procedures of DTC, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Co-Registrar of such opinions of counsel, certificates and/or other information reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with paragraph (e) of this Section 2.8.
(e) Use and Removal of Private Placement Legends. Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing a Private Placement Legend, the Note Custodian and Co-Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note (or Certificated Notes if they have been issued pursuant to Section 2.6(c)) that does not bear a Private Placement Legend. Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Co-Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
(i) such Notes (or beneficial interests) are transferred pursuant to a Registration Statement;
(ii) such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Co-Registrar of a certificate of the transferor in the form of Exhibit E and an Opinion of Counsel reasonably satisfactory to the Co-Registrar;
(iii) such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor; or
(iv) such Notes (or beneficial interests) are transferred, replaced or exchanged after the Distribution Compliance Period therefor;
(v) in connection with such transfer, exchange or replacement the Co-Registrar shall have received an Opinion of Counsel and other evidence reasonably satisfactory to it to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.
The Private Placement Legend on any Note shall be removed at the request of the Holder on or after the Resale Restriction Termination Date or the Distribution Compliance Period therefor, respectively. The Holder of a Global Note may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to any of clauses (i) through (v) of this paragraph (e). The Company shall deliver to the Trustee an Officers' Certificate promptly upon effectiveness, withdrawal or suspension of any Registration Statement.
(f) Exchange of Certificated Notes for Beneficial Interests in Global Notes. Upon the transfer or exchange of any Certificated Note for which a Private Placement Legend would not be required pursuant to Section 2.8(e) following such transfer or exchange, such
Certificated Note shall be exchanged for an interest in a Global Note not bearing a Private Placement Legend and, if no such Global Note is Outstanding at such time, the Company shall execute and upon Company Order the Trustee shall authenticate such a Global Note not bearing a Private Placement Legend.
(g) Retention of Documents. The Co-Registrar shall retain copies of all letters, notices and other written communications received pursuant to this Article II. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Co-Registrar.
(h) Presentment of Notes, Service Charge, etc.
(i) Subject to the other provisions of this Section 2.8, when Notes are presented to the Registrar or Co-Registrar with a written request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or Co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met; provided that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or Co-Registrar, duly executed by the Holder thereof or his attorney-in-fact duly authorized in writing. To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II, the Company will execute and upon Company Order the Trustee will authenticate Certificated Notes and Global Notes at the Registrar's or Co-Registrar's request.
(ii) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Section 5.1).
(iii) The Registrar or Co-Registrar shall not be required to
register the transfer of or exchange of any Note for a period beginning:
(1) 15 days before the mailing of a notice of an offer to redeem Notes and
ending at the close of business on the day of such mailing or (2) 15 days
before a Payment Date and ending on such close of business of Payment
Date.
(iv) Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent, the Registrar or the Co-Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar or the Co-Registrar shall be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(i) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a participant in, DTC or other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among DTC participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.9. Mutilated, Destroyed, Lost or Stolen Notes. (a) If a mutilated Note is surrendered to the Registrar or the Co-Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Company shall execute and upon Company Order the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the New York Uniform Commercial Code are met and the Holder satisfies any other reasonable requirements of the Trustee. If required by the Trustee or the Company, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company, the Trustee, the Paying Agent, the Registrar and the Co-Registrar from any loss that any of them may suffer if a Note is replaced, and, in the absence of notice to the Company or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and upon Company Order the Trustee shall authenticate and make available for delivery, in exchange for any such mutilated Note or in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount, bearing a number not contemporaneously Outstanding.
(b) Upon the issuance of any new Note under this Section 2.9, the Company may require the payment by the Holder of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.9 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Company and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Section 2.10. Temporary Notes. Until definitive Notes are ready for delivery, the Company may execute and upon Company Order the Trustee will authenticate temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes. Without unreasonable delay, the Company will prepare and execute and upon Company Order the Trustee will authenticate definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at any office or agency maintained by the Company for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company will execute and upon Company Order the Trustee will authenticate and make available for delivery in exchange therefor one or more definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.11. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Note Custodian, Registrar, the Co-Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or return to the Company all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Company may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a transfer or exchange upon Company Order.
Section 2.12. Defaulted Interest. Defaulted Interest (including any interest on such Defaulted Interest, if applicable) may be paid by the Company, at its election, as provided in clause (A) or (B) below.
(A) The Company may elect to make payment of any Defaulted Interest (including any interest on such Defaulted Interest, if applicable) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a "Special Record Date"), which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited is to be held in trust for the benefit of the Holders
entitled to such Defaulted Interest as provided in this clause (A). Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than 15 calendar days and not less than ten calendar days prior to the date of the proposed payment and not less than ten calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder's address as it appears in the registration books of the Co-Registrar, not less than ten calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (B).
(B) Alternatively, the Company may make payment of any Defaulted Interest (including any interest on such Defaulted Interest, if applicable) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (B), such manner of payment shall be deemed practicable by the Trustee.
Section 2.13. Payment of Additional Amounts. Condition 9 of the Terms and Conditions is hereby incorporated.
ARTICLE III
COVENANTS
Section 3.1. Terms of Conditions. In addition to the covenants set forth in Conditions 10(a) through (e) and Conditions 10(g) through (i) of the Terms and Conditions, which are hereby incorporated, the Senior Notes will have the additional covenants set forth in this Article III. For purposes of the Senior Notes, all references in the applicable sections of Condition 10 of the Terms and Conditions to the "Fiscal Agent" shall be deemed to be references to the "Trustee" hereunder, and all references to the "Fiscal and Paying Agency Agreement" shall be deemed to be references to this Indenture.
Section 3.2. Maintenance of Office or Agency. (a) The Company shall maintain each office or agency required under Section 2.3. The Company will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Company may also from time to time designate one or more other offices or agencies (in or outside of The City of New York) where the Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in The City of New York and Buenos Aires for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
Section 3.3. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or for which it or any of them are otherwise liable, or upon the income, profits or property of the Company or any Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Encumbrance upon the property of the Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of management of the Company), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.4. Limitation on Incurrence of Indebtedness. The Company will not, and will not cause or permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness, except that (a) the Company or any Regulated Subsidiary may Incur Indebtedness, including Acquired Indebtedness if, at the time of and immediately after giving pro forma effect to the Incurrence thereof and the application of the proceeds therefrom, the Company or such Regulated Subsidiary, as the case may be, shall be in full compliance with all Applicable Capital Adequacy Requirements and (b) any Subsidiary that is not a Regulated Subsidiary may Incur Indebtedness, including Acquired Indebtedness if, at the time of and immediately after giving pro forma effect to the Incurrence thereof and the application of the proceeds therefrom, the Company shall be in full compliance with all Applicable Capital Adequacy Requirements.
Section 3.5. Limitations on Restricted Payments. (a) The Company will not, and will not permit any of its Significant Subsidiaries to, directly or indirectly, take any of the following actions (each a "Restricted Payment"):
(i) declare or pay any dividends or make any distributions in respect of shares of Capital Stock, of the Company other than dividends or distributions payable exclusively in Capital Stock to holders of such Capital Stock (provided that this clause (i) will not apply to dividends made to the Company by any consolidated Subsidiary so long as dividends are paid on a pro rata basis based on ownership of Capital Stock); or
(ii) purchase, redeem or otherwise acquire any Capital Stock of the Company or, unless done on a pro rata basis, any Capital Stock of any Subsidiary of the Company; provided, however, beginning the earlier of March 16, 2010 if the installments of principal required to be paid on January 1, 2010, in connection with the Notes (as applicable) have been paid in full or upon prepayment of at least twenty percent (20%) of the original principal amount of the Long-Term Notes, the Company can repurchase,
redeem or otherwise acquire its Capital Stock, or any Capital Stock of its
Subsidiaries, as the case may be, upon the exercise of stock options if
(x) such Capital Stock represents a portion of the exercise price under
the terms of agreements, including employment agreements, or plans
approved by the board of directors of the Company and (y) such
repurchases, redemptions or other acquisitions do not in the aggregate
exceed two million five hundred thousand U.S. Dollars (US$2,500,000) (or
the Dollar Equivalent in any other currency) for the period from and
including January 2, 2010 through the end of the fiscal year ended
December 31, 2012 and five million U.S. Dollars (US$5,000,000) (or the
Dollar Equivalent in any other currency) in any fiscal year thereafter.
(b) Notwithstanding the foregoing subsection (a) of this Section 3.5, the Company may, and may permit any of its Subsidiaries to, directly or indirectly, make a Restricted Payment in the event that:
(i) no Default or Event of Default shall have occurred and be continuing immediately prior to and after giving effect to such Restricted Payment;
(ii) the aggregate principal amount of outstanding Senior Indebtedness is equal to or less than fifty percent (50%) of the aggregate principal amount of the Senior Indebtedness originally issued; and
(iii) for each one U.S. Dollar (US$1) paid on account of such Restricted Payment, the Company shall repay two U.S. Dollars (US$2) of the principal of the Long-Term Debt, (as defined in the Note Purchase Agreement).
Section 3.6. Pro Rata Prepayment upon Prepayment of Restructured Bank Indebtedness. (a) The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, purchase or otherwise acquire any Restructured Bank Indebtedness for a price at or above the nominal principal amount thereof, or make any principal payment on, defease, redeem, prepay or decrease or otherwise retire for value prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Restructured Bank Indebtedness (each a "Prepayment"), whether in a single transaction or a series of transactions unless (a) the aggregate amount of Prepayment made by the Company, on a cumulative basis and including the Prepayments in question, would be less than US$15 million or (b) within 60 days of such Prepayment the Company shall make provision for the Holders of a similar maturity to the Restructured Bank Indebtedness being repaid to participate upon a substantially equal basis in such Prepayment; and
(b) To the extent that the Company, pursuant to clause (a) above is required to redeem any of the Notes (in whole or in part), the Company shall either, at its discretion, (i) make an offer to purchase, at the same percentage of principal amount as is being paid in respect of the Restructured Bank Indebtedness, a proportionate amount of Notes with a like maturity to the Restructured Bank Indebtedness being repaid (plus accrued and unpaid interest and Additional Amounts, if any), or (y) redeem, at par (plus accrued and unpaid interest and Additional Amounts, if any), a proportionate amount of Notes with a like maturity to the Restructured Bank Indebtedness being repaid. The principal amount of Notes proportionate to a given amount of Restructured Bank Indebtedness will be determined by multiplying (a) the
aggregate principal amount outstanding of the Notes of the relevant maturity by
(b) a fraction in which (i) the numerator is the principal amount of
Restructured Bank Indebtedness of such maturity subject to such Prepayment and
(ii) the denominator is the aggregate principal amount outstanding of all
Restructured Bank Indebtedness of such maturity immediately prior thereto.
Section 3.7. Maintenance of Insurance. The Company shall and shall cause each of its Subsidiaries to, keep at all times all of their Properties which are of an insurable nature insured against loss or damage with insurers believed by the Company to be responsible to the extent that Property of similar characteristics is usually so insured by corporations similarly situated and owning like Properties in accordance with good business practice.
Section 3.8. Transactions with Affiliates. The Company shall not,
and shall not permit any of its Subsidiaries to, enter into or permit to exist,
directly or indirectly, any Affiliate Transaction, other than any one or more
of: (a) Affiliate Transactions entered into on a commercial basis, as evidenced
by a statement to such effect in relation to the relevant transaction in the
audited consolidated accounts of the Company or the relevant Subsidiary, as the
case may be, for the 12 month financial period during which the relevant
transaction was completed, and (b) Affiliate Transactions entered into by the
Company or any of its Subsidiaries in any year at the end of which a certificate
signed by two directors of the Company is provided to the Trustee to the effect
that all such Affiliate Transactions entered into by the Company or any such
Subsidiary, as the case may be, were either in the best interest of the Company
or such Subsidiary or on an arm's length basis and setting out details of with
whom Affiliate Transactions had been entered into during such year; provided,
however, that the foregoing restrictions shall not apply to (i) reasonable fees
and compensation paid to, and indemnities provided on behalf of, officers,
directors, employees or consultants of the Company or any of its Subsidiaries as
determined in good faith by the Board of Directors of the Company, (ii) payments
made to the Board of Directors in accordance with the by-laws of the Company,
(iii) any agreement in effect on the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
in any replacement agreement thereto so long as any such amendment or
replacement agreement is not in the opinion of the Trustee more disadvantageous
to the Holders of the Notes in any material respect than the original agreement
as in effect on the Issue Date, or (iv) the declaration or payment of any lawful
dividend or other payment ratably in respect of all its shares of the relevant
class so long as, after giving effect thereto, no Event of Default shall have
occurred and be continuing.
Section 3.9. Limitation on Asset Sales. The Company shall not, and shall not permit any of its Subsidiaries, directly or indirectly, to sell, transfer, lease or otherwise dispose of all or a substantial part of its assets (whether in a single transaction or in a series of transactions, related or otherwise) except (i) any sale, transfer, lease or disposition of assets to (1) the Argentine Central Bank or any other relevant governmental agency in respect of amounts owed to the same or (2) any Subsidiary of the Company in connection with restructuring or recapitalization thereof; (ii) by way of securitization subject to limited recourse, including a limited or partial guaranty by the Company or such Subsidiary; or (iii) that to the extent that any sale, transfer, lease or disposition of assets is for proceeds in excess of ten million U.S. Dollars (US$10,000,000) or the asset subject to such sale, transfer, lease or disposition has a fair market value in excess of ten million U.S. Dollars (US$10,000,000), then prior to such sale, transfer, lease or disposition the Company shall provide to the Trustee an opinion as to the substantial
fairness of the economic terms and conditions (including as to price) of such sale, transfer, lease or disposition from an independent, internationally recognized, reputable investment bank or accounting firm.
Section 3.10. Further Instruments and Acts. The Company will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture.
Section 3.11. Waiver of Stay, Extension or Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Company from paying all or any portion of the principal of or interest on the Senior Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Company hereby expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE IV
MERGERS, CONSOLIDATIONS, ETC.
Section 4.1. Mergers, Consolidations, etc. (a) Neither the Company
shall, nor shall the Company permit any of its Subsidiaries to, merge,
consolidate or amalgamate with or into, or convey, transfer or lease its
properties and assets substantially as an entirety to, any person, unless
immediately after giving effect to such transaction, (i) no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing, (ii) any corporation formed
by any such merger, consolidation or amalgamation with the Company or the Person
which acquires by conveyance or transfer, or which leases, the Properties and
assets of the Company substantially as an entirety (the "Company's Successor
Corporation") shall expressly assume the due and punctual payment of the
principal of, premium, if any, and interest on (including Additional Amounts, if
any) all the Notes according to their terms, and the due and punctual
performance of all of the covenants and obligations of the Company under the
Notes and this Indenture; (iii) the Company's Successor Corporation (except in
the case of leases), if any, succeeds to and becomes substituted for the Company
with the same effect as if it had been named in the Notes as the Company; and
(iv) the Company has delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, complies with
this Article IV and that all conditions precedent herein provided for relating
to such transaction have been complied with.
(b) Upon any consolidation of the Company with, or merger of the Company into, any other Person or any transfer, conveyance, sale, lease or other disposition of all or substantially all of the Properties and assets of the Company as an entirety in accordance with
Section 4.1(a), the Company's Successor Corporation shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes.
ARTICLE V
OPTIONAL AND MANDATORY REDEMPTION OF NOTES
Section 5.1. Optional Redemption. (a) The Company may redeem the Notes as provided for in Condition 7(b) and Condition 7(c) of the Terms and Conditions.
(b) The Senior Notes are subject to redemption, at the option of the Company, as a whole or in part, at any time, upon written notice given in the time and manner prescribed by Section 5.4, mailed to each Holder of a Senior Note to be redeemed at his address appearing in the Note Register in amounts of US$10,000 or an integral multiple of US$1,000 above such amount, at 100% of the principal amount thereof plus accrued interest to but excluding the Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on an Interest Payment Date that is on or before the Redemption Date).
(c) The Subordinated Notes are subject to redemption, at the option
of the Company, as a whole or in part, at any time on or after the Senior Notes
are paid in full, upon written notice given in the time and manner prescribed by
Section 5.4, mailed to each Holder of a Subordinated Note to be redeemed at his
address appearing in the Note Register in amounts of US$10,000 or an integral
multiple of US$1,000 above such amount, at 100% of the principal amount thereof
plus accrued interest to but excluding the Redemption Date (subject to the right
of Holders of record on the relevant Record Date to receive interest due on an
Interest Payment Date that is on or before the Redemption Date) subject to (i)
prior authorization by the Argentine Superintendency of Financial Institutions
(Superintendencia de Entidades Financieras y Cambiarias) and (ii) that upon the
exercise of the redemption rights the Company's computable capital
(responsabilidad patrimonial computable) remains equal to or greater than any
mandatory minimum capital requirement set forth by the Argentine Central Bank.
Section 5.2. Election to Redeem. The Company shall evidence its election to redeem any Notes pursuant to Section 5.1 by a Board Resolution.
Section 5.3. Mandatory Redemption. (a) The Company shall be required to redeem the Senior Notes and the Restructured Bank Indebtedness of similar maturities on a pro rata basis (first, to prepay the Long Term Notes and the long-term loans under the Restructured Bank Indebtedness, and thereafter the Medium Term Notes and the medium-term loans under the Restructured Bank Indebtedness, in an inverse order of maturity, with fifty percent (50%) of the Net Cash Proceeds of any offering of debt securities in the international capital markets to the extent that (i) the new debt being incurred by the Company has a longer average maturity and a lower net present value (using Argentine Central Bank methodology set forth in Argentine Central Bank Communique "A" 3973) than the debt being repaid, together with any accrued interest and Additional Amounts and (ii) the Net Cash Proceeds thereof are equal to or exceed
US$100 million. Any such prepayment shall be made without premium or penalty, with any such redemption of amounts being rounded to the nearest U.S. Dollar.
(b) The Company shall be required to redeem the Long Term Notes or the Medium Term Notes, as applicable, in the same manner and in such amount and at such times as required pursuant to the terms of the documents described in the definition of "Restructured Bank Indebtedness." The Company shall provide written notice to the Trustee of any such obligation within five (5) Business Days after the event requiring such redemption and the Trustee shall be protected in relying on such notice as to the occurrence of such event. Following such notice, the Company shall redeem the relevant Senior Notes in accordance with the terms hereof, with any such redemption of amounts being rounded to the nearest U.S. Dollar.
Section 5.4. Notice of Redemption. The Company shall give the Trustee the form of notice and cause the Trustee to give such notice of redemption in accordance with Condition 7(g) of the Terms and Conditions to the Holders and to the CNV.
Section 5.5. Selection of Notes to Be Redeemed in Part. (a) If the Company is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a national securities exchange, on a pro rata basis, by lot or in another fair and reasonable manner chosen at the discretion of the Trustee. The Trustee shall make the selection from the Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than 30 nor more than 60 days prior to the relevant Redemption Date from the Outstanding Notes not previously called for redemption. The Company may redeem Notes in denominations of US$1,000 only in whole. The Trustee may select for redemption portions (equal to US$1,000 or any integral multiple of US$1,000) of the principal of Notes that have denominations larger than US$1,000.
(b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed.
(c) Other than as set forth in Section 5.3(a) and 5.3(b) hereof, redemptions of the Notes pursuant to this Article V shall be applied pro rata to the Outstanding Notes being redeemed and the remaining scheduled repayments of the Notes being redeemed shall be reduced on a pro rata basis rather than an inverse order of maturity.
Section 5.6. Deposit of Redemption Price. Prior to 10:00 a.m. New York City time on the relevant Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as Paying Agent, segregate and hold in trust as provided in Section 2.4) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Company is redeeming on that date.
Section 5.7. Notes Payable on Redemption Date. If the Company, or the Trustee on behalf of the Company, gives notice of redemption in accordance with this Article V, the Notes, or the portions of Notes, called for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Company shall default in the payment of the redemption price and accrued interest) the Notes or the portions of Notes shall cease to bear interest. Upon surrender of any Note for redemption in accordance with the notice, the Company shall pay the Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Payment Date). If the Company shall fail to pay any Note called for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
Section 5.8. Unredeemed Portions of Partially Redeemed Note. Upon surrender of a Note that is to be redeemed in part, the Company shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of the Note at the expense of the Company, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered, provided that each new Note will be in a principal amount of US$1,000 or integral multiple of US$1,000.
Section 5.9. Open Market Purchases
The Company or any of its Subsidiaries or its Affiliates may at any time make open market purchases of the Notes as provided for in Condition 7(j) of the Terms and Conditions of the Notes.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default. (a) Each of the events of default set forth in Conditions 11(i) through (iii), (vi) through (xi) of the Terms and Conditions, which are hereby incorporated herein, and the additional events of default set forth in this Article VI shall constitute an "Event of Default" for the Senior Notes (each an "Event of Default" for the Senior Notes), whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body. For purposes of the Senior Notes, all references in Condition 11 of the Terms and Conditions to the "Fiscal Agent" shall be deemed to be references to the "Trustee" hereunder, all references to the "Fiscal and Paying Agency Agreement" shall be deemed to be references to this Indenture, and all references to the Class of Notes shall be deemed to be references to the Senior Notes.
Each of the events set forth in clause (vii)(a)(i) (excluding Significant Subsidiaries) and clause (viii) of Condition 11 (excluding Significant Subsidiaries) of the Terms and Conditions shall constitute an "Event of Default" for the Subordinated Notes, whatever the
reason for any such Event of Default and whether it is voluntary or involuntary. For purposes of the Subordinated Notes, all references in Condition 11 of the Terms and Conditions to the "Fiscal Agent" shall be deemed to be references to the "Trustee" hereunder, all references to the "Fiscal and Paying Agency Agreement" shall be deemed to be references to this Indenture, and all references to the Class of Notes shall be deemed to be references to the Subordinated Notes.
The following shall constitute an "Event of Default" for the Senior Notes:
(i) the failure of the Company to pay when due any installment of interest on or principal of the Senior Notes and the Bank Indebtedness, other than the Subordinated Notes and the Company's indebtedness outstanding as at September 30, 2003 that is payable in a currency other than pesos and is governed by laws of a jurisdiction other than of Argentina that is not restructured in accordance with the terms of the Plan, in an aggregate unpaid amount of US$20.0 million or more after any applicable grace period, or any other event shall occur which results in the acceleration of the maturity of any such indebtedness for borrowed money; or
(ii) it becomes unlawful for the Company to perform any of its obligations under this Indenture or the Senior Notes; or
(iii) the occurrence of a Change of Control; provided that to the extent that such Change of Control has occurred as a result of a merger, amalgamation or consolidation with or into any Permitted Holder and Standard & Poor's Ratings Services and Moody's Investor Service, Inc., each have confirmed that the rating of the Bank's outstanding long-term foreign currency-denominated debt immediately following such transaction is at least equal to the credit rating of each such instrument of the Bank immediately prior to giving effect to such merger, amalgamation or consolidation, such Change of Control shall not constitute an Event of Default.
(b) The Company shall deliver to the Trustee upon becoming aware of any Default or Event of Default written notice in the form of an Officers' Certificate of any Default or Event of Default, its status and what action the Company proposes to take in respect thereof.
Section 6.2. Acceleration. (a) If an Event of Default (other than an Event of Default specified in clauses (vii) through (ix) of Condition 11 of the Terms and Conditions) occurs and is continuing under any Class of Senior Notes, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Senior Notes of such Class may declare the principal amount of all the Senior Notes in such Class to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount and any accrued interest shall become immediately due and payable. If an Event of Default specified in clauses (vii) through (ix) of Condition 11 of the Terms and Conditions occurs, the principal of and any accrued interest on the Senior Notes then Outstanding shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as herein-
after in this Article VI provided, the Holders of not less than 66-2/3% in aggregate principal amount of the Senior Notes of each Class at the time Outstanding, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all overdue interest on all Senior Notes in such Class,
(B) the principal of, and any premium or Additional Amounts on, any Senior Notes in such Class which have become due otherwise than by such declaration of acceleration and, to the extent that payment of such interest is lawful, interest thereon at the rate provided by the Senior Notes in such Class,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate provided by the Senior Notes in such Class, and
(D) all sums paid or advanced by the Trustee hereunder and the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of the principal of such Class of Senior Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.4.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
(b) The foregoing provisions shall be without prejudice to the rights of each individual Holder to initiate an action against the Company for the payment of any principal, premium, Additional Amount and/or interest past due on any Senior Note, as the case may be, as established by Article 29 of the Negotiable Obligations Law (as such may be amended).
For Argentine regulatory purposes as set forth in Communique "A" 2970 only, holders of Subordinated Notes shall have no right to accelerate repayment of the Subordinated Notes except under an Event of Default with respect to the Company described under clause (vii)(a)(i) (excluding Significant Subsidiaries) and clause (viii) of Condition 11 (excluding Significant Subsidiaries) of the Terms and Conditions (each such Event of Default in respect of the Subordinated Notes, shall also be a "Subordinated Note Event of Acceleration") that has occurred and is continuing. In such situation, all Subordinated Notes shall, without any notice to the Company or any other act by any holder of any Subordinated Note, become immediately due and payable. Upon any such declaration of acceleration, the principal of the Subordinated Notes of the affected Class and the interest accrued thereon and all other amounts (including Additional Amounts) payable with respect to the Subordinated Notes of the affected Class shall become and be immediately due and payable once all Senior Indebtedness has been fully paid. Upon the occurrence of a Subordinated Note Event of Acceleration, once all other indebtedness of the Company has been paid, the Holders of Subordinated Notes shall have priority in the distribution of the liquidation proceeds only with respect to the Company's shareholders, and such Holders expressly waive any general or special privilege they may have. The distribution of the liquidation proceeds shall be made pro rata among all holders of subordinated debt of the Company and the remaining liabilities accepted (verificados) in the bankruptcy proceeding.
Holders of the Subordinated Notes shall have no right to accelerate repayment of Subordinated Notes in the case of any Event of Default except in the case of an Event of Default which would constitute a Subordinated Note Event of Acceleration.
Section 6.3. Other Remedies. (a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.4. Waiver of Past Defaults. Notwithstanding anything herein to the contrary, only the Holders of not less than 66-2/3% in principal amount of the Outstanding Notes of each Class may on behalf of all of the Holders of their respective Class waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium or Additional Amounts, if any) or interest on any such Class of Notes, or
(2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 6.5. Control by Majority. The Holders of a majority in principal amount of the Outstanding Notes of each Class who provide the Trustee with indemnity or security satisfactory to it may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, with respect to such Class, or of exercising any trust or power conferred on the Trustee; provided, however, that (i) such direction shall not be in conflict with any rule of law or with this Indenture and (ii) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Section 6.6. Limitation on Suits. Except as provided in Section 6.2(b), no Holder of any Note shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the Outstanding Class of Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Class of Notes;
it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the Holders.
Section 6.7. Unconditional Right of Holders to Receive Principal, Premium, Additional Amounts and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium and Additional Amounts, if any) and interest on such Note on the respective Stated Maturity of such Note (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.8. Collection Suit by Trustee. If an Event of Default
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount then due
and owing (together with applicable interest on any overdue principal and, to
the extent lawful, interest on overdue interest) and the amounts provided for in
Section 7.7.
Section 6.9. Trustee May File Proofs of Claim, etc. (a) The Trustee may (irrespective of whether the principal of the Notes is then due):
(i) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Company or any Subsidiary of the Company or their respective creditors or properties; and
(ii) collect and receive any moneys or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture.
Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to Section 7.7.
(b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Company directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Senior Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Senior Notes for principal and interest, respectively;
FOURTH: to Holders for amounts due and unpaid on the Subordinated Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Subordinated Notes for principal and interest, respectively; and
FIFTH: to the Company or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Company, fix a record date and payment date for any payment to Holders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10% in principal amount of Outstanding Notes.
Section 6.12. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.13. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.9, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article VI or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee. (a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of Default the duties and liabilities of the Trustee are as follows:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no others and no implied covenants or obligations of the Trustee shall be read into this Indenture; and
(2) in the absence of bad faith on its part, each of the Trustee and each Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to it and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, or Agent, as the case may be, the Trustee or Agent, as the case may be, shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c) Neither the Trustee nor any Agent may be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of this Section 7.1;
(2) each of the Trustee and each Agent shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee or Agent, as the case may be, was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Sections 6.2, 6.4 or 6.5.
(d) The Trustee or Agent, as the case may be, shall not be liable for interest on any money received by it except as the Trustee or Agent, as the case may be, may agree in writing with the Company or except in its capacity as obligor with respect to any Cash Equivalent.
(e) Money held in trust by the Trustee or Agent, as the case may be, need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VII and to the provisions of the TIA.
(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2. Rights of Trustee. (a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel (or may consult with financial or other advisors or consultants appointed with due care). The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and determining and discharging its rights and duties hereunder, and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in reliance with the advice or opinion of such counsel.
(f) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by a Trust Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Notes and this Indenture and states that a Default or Event of Default has occurred.
(g) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each Agent, custodian and other Person employed by the Trustee in accordance with this Indenture to act hereunder.
(h) The Trustee may request that the Company deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(j) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or documents of the Company, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney-in-fact at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(k) Permissive powers granted to the Trustee hereunder shall not be construed to be mandatory duties on its part.
(l) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through delegates, agents, attorneys, custodians, or nominees, and the Trustee shall not be responsible for any misconduct or negligence on the part, or the supervision, of any delegate, agent, attorney, custodian, or nominee appointed by the Trustee with due care.
(m) Except as otherwise specifically provided herein, (i) all references in this Indenture to the Trustee shall be deemed to refer to the Trustee in its capacity as Trustee and in its capacity as Agent and (ii) every provision of this Indenture relating to the conduct or affecting the liability or offering protection, immunity or indemnity to the Trustee shall be deemed to apply with the same force and effect to the Trustee acting in its capacity as Agent.
Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any of its Affiliates with the same rights it would have if it were not Trustee. Any Paying Agent, Registrar or Co-Registrar may do the same with like rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer. Neither the Trustee nor any Agent shall be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, and neither the Trustee nor any Agent shall be accountable for the Company's use of the proceeds from the Notes, neither the Trustee nor any Agent shall be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee's certificate of authentication.
Section 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder notice of the Default or Event of Default within 30 days after the occurrence thereof, unless such Default or Event of Default has been cured or waived. Except in the case of a Default or Event of Default in payment of principal of or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note, if any), the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.6. Reports by Trustee to Holders. The Trustee shall comply with TIA sections. 313. The Company agrees to notify promptly the Trustee in writing whenever the Notes become listed on any stock exchange and of any delisting thereof.
Section 7.7. Compensation and Indemnity. The Company shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Company and the Trustee shall from time to time agree in writing. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the
delivery of an Opinion of Counsel or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee's agents, counsel, accountants and experts.
(a) The Company shall indemnify the Trustee and all Agents against any and all loss, liability or expense (including reasonable attorneys' fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this Section 7.7) and of defending itself or themselves against any claims (whether asserted by any Holder, the Company or otherwise). The Trustee or any Agent, as the case may be, shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee or any Agent, as the case may be, to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee or any Agent, as the case may be, may have separate counsel and the Company shall pay the fees and expenses of such counsel, provided that the Company shall not be required to pay such fees and expenses if it assumes the Trustee's defense, and, in the reasonable judgment of the Trustee or Agent, as the case may be, there is no conflict of interest between the Company and the Trustee or Agent, as the case may be, in connection with such defense. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee or any Agent, as the case may be, through the Trustee's or Agent's own negligence, willful misconduct or bad faith.
(b) To secure the Company's payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee's right to receive payment of any amounts due under this Section 7.7 shall not be subordinate to any other liability or Indebtedness of the Company.
(c) The Company's payment obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee or any Agent, as the case may be. When the Trustee incurs expenses after the occurrence of a Default specified in Section 6.1, the expenses are intended to constitute expenses of administration under any Bankruptcy Law; provided, however, that this shall not affect the Trustee's rights as set forth in this Section 7.7 or Section 6.10.
Section 7.8. Replacement of Trustee. (a) The Trustee may resign at any time by so notifying the Company and by giving notice thereof to the Holders as specified in Condition 17 of the Terms and Conditions and to the CNV. The Holders of a majority in principal amount of the Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Upon its receipt of such written acceptance, the Company shall give, at its expense, notice thereof to the Holders as provided in Condition 17 of the Terms and Conditions and to the CNV. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 7.7.
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Outstanding Notes of any Class may petition, at the Company's expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee in respect of such class.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger. (a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Trustee shall have.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall have a combined capital and surplus of at least US$150 million as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from
the operation of TIA Section 310(b)(1) any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
Section 7.11. Preferential Collection of Claims Against Company. The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.
Section 7.12. Appointment of Co-Trustee. (a) Notwithstanding any other provisions in this Indenture, at any time, solely for the purpose of meeting the legal requirements of any jurisdiction, the Trustee shall have the power and may execute and deliver all instruments necessary to appoint, subject to the prior authorization of the CNV, one or more Persons to act as separate trustee or trustees or as co-trustee or co-trustees, and to vest in such Person or Persons, in such capacity and subject to the other provisions of this Indenture, such powers, duties, obligations and rights as the Trustee may consider necessary or desirable. No co-trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under this Indenture and no notice to Holders of Notes of the appointment of a separate trustee or co-trustee shall be required under this Indenture.
(b) Every separate trustee or co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed singly by such co-trustee, but solely at the direction of the Trustee;
(ii) no separate trustee or co-trustee hereunder shall be personally liable by reason of any act or omission of any other separate trustee or co-trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees or co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article VII. Each separate trustee or co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property specified in its instrument of appointment, jointly with the Trustee, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Trustee or its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1. Legal Defeasance and Covenant Defeasance. (a) The
Company may, at its option, at any time, elect to have either paragraph (b) or
(c) of this Section 8.1 be applied to all Outstanding Notes of any Class upon
compliance with the conditions set forth in Section 8.2.
(b) Upon the Company's exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (b), the Company shall, subject to the satisfaction of the conditions set forth in Section 8.2, be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in Section 8.2 (including Section 8.2(4)(b)) are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of Section 8.3 and the other Sections of this Indenture referred to in clause (i) or (ii) of this paragraph (b), and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in Section 8.3, payments in respect of the principal of and interest on such Notes when such payments are due,
(ii) the Company's obligations with respect to such Notes under Article II and Section 3.2,
(iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith, and
(iv) this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise its option under this paragraph (b) notwithstanding the prior exercise of its option under paragraph (c) of this Section 8.1.
(c) Upon the Company's exercise under paragraph (a) of this Section 8.1 of the option applicable to this paragraph (c), the Company shall, subject to the satisfaction of the applicable conditions set forth in Section 8.2, be released from its obligations under the covenants contained in Conditions 10(b) through 10(e) and Conditions 10(g) through 10(i) of the Terms and Conditions and Sections 3.2 through 3.7 and Article IV of this Indenture with respect to the Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the Outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under clauses (iii), (iv), (v), (vi) and (x) of Condition 11 of the Terms and Conditions, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.2. Conditions to Defeasance. The Company may exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(1) the Company irrevocably deposits with the Trustee, in trust for the benefit of the Holders, U.S. Legal Tender, U.S. Government Obligations or a combination thereof in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of and interest on the Notes on the stated date for payment thereof or on the applicable redemption date, as the case may be, and the Trustee has a perfected first priority security interest under applicable law in such U.S. Legal Tender and U.S. Government Obligations;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee to the effect that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) the Trustee shall have received an Officers' Certificate from the Company stating that no Default or Event of Default shall have occurred and be continuing on (a) the date of such deposit and, (b) in the case of Legal Defeasance, insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit;
(5) the Trustee shall have received an Officers' Certificate from the Company stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture, or any other material agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders over any other creditors of the Company or any Subsidiary of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with;
(8) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; and
(9) the Company shall have delivered to the Trustee an Opinion of Counsel (subject to customary assumptions and exclusions) to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Section 8.3. Application of Trust Money. The Trustee shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall apply the deposited money and the U.S. Legal Tender from U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 8.4. Repayment to Company. The Trustee and the Paying Agent shall promptly turn over to the Company upon request any excess money or securities held by them upon payment of all the obligations under this Indenture. Subject to any applicable abandoned
property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal of or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Company for payment as general creditors.
Section 8.5. Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
Section 8.6. Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VIII by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Company under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article VIII until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VIII; provided, however, that, if the Company has made any payment of interest on or principal of any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.7. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect (except as to surviving rights or registration of transfer or exchange of the Notes, as expressly provided for in the Indenture) as to all Outstanding Notes when:
(a) either:
(1) all the Notes theretofore executed, authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust) have been delivered to the Trustee for cancellation, or
(2) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Company thereafter has irrevocably deposited or caused to be deposited with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of and interest on the Notes to the date of deposit, together with irrevocable instructions from the Company directing the Trustee to apply such funds to the payment;
(b) the Company has paid all other sums payable under this Indenture and the Notes by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE IX
AMENDMENTS
Section 9.1. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Notes, provided that such succession and assumption are otherwise permitted by and in compliance with this Indenture;
(2) to add to the covenants of the Company for the benefit of the holders of any Class of Notes;
(3) to add Events of Default for the benefit of the holders of any Class of Notes;
(4) to change or eliminate any provisions of this Indenture, provided that any such change or elimination shall become effective only when there are no Outstanding Notes of any Class created prior thereto that are entitled to the benefit of such provision;
(5) to secure the Notes;
(6) to provide for the acceptance of appointment by a successor Trustee, Registrar, Co-Registrar, Paying Agent, Transfer Agent or any other Agent;
(7) to cure any ambiguity, defect or inconsistency in this Indenture or the Notes (including the Terms and Conditions incorporated into the terms of the Notes);
(8) to amend or supplement any provision contained in this Indenture or the Notes (including the Terms and Conditions incorporated into the terms of the Notes) or in any amendment thereto; or
(9) for any other purpose that the parties hereto may mutually deem necessary or desirable; provided in each such case that any such modification or amendment does not adversely affect the interests of holders of Notes of any Class in any material respect.
Section 9.2. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of the Outstanding Notes of each affected Class, by act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of each Holder of Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of interest on, any Note, or reduce the principal amount thereof or the rate of interest thereon or any premium or Additional Amount payable thereon, or change the place of payment where, or the coin or currency in which, any Note or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 9.2, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected thereby.
(4) modify or alter the definition of the term "Outstanding."
Except as provided in the preceding paragraph, modifications and amendments to this Indenture or the Notes of the relevant Class may be made either with the consent of the Holders of a majority in principal amount of the Outstanding Notes of each Class affected or by the adoption of a resolution at a meeting of the Holders of Notes of each such Class held in accordance with the provisions below. No such modification or amendment of any of such documents shall affect the Trustee, any other Agent appointed hereunder or pursuant hereto, or the Company without its prior written consent.
It shall not be necessary for any act of Holders under this Section 9.2 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such act shall approve the substance thereof.
Section 9.3. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise every supplemental indenture executed pursuant to this Section 9.3 shall conform to the requirements of the Negotiable Obligations Law.
For the avoidance of doubt, notwithstanding Condition 12(b) of the Terms and Conditions, for purposes of this Indenture and the Notes issued hereunder, this Article IX shall govern modifications to the terms of this Indenture and the Notes and the execution of any supplemental indenture.
Section 9.4. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article IX, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Promptly after the execution by the Company and the Trustee of any supplemental indenture, the Company at its expense shall give notice thereof to the Holders as provided in Condition 17 of the Terms and Conditions and to the CNV, setting forth in general terms the substance of such Supplemental Indenture.
Section 9.5. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the TIA as then in effect.
Section 9.6. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
Section 9.7. Meetings of Holders; Modification and Waiver. (a) The
Trustee or the Company shall, upon the written request of the Holders of at
least 5% in aggregate principal amount of the Notes of any Class at the time
Outstanding, or the Company or the Trustee at its discretion, may, call a
meeting of the Holders of such class at any time and from time to time, to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by the Notes to be made, given or taken by the
Holders pursuant to Section 14 of the Negotiable Obligations Law and the
provisions of this Indenture. The meetings will be held in Buenos Aires;
provided, however, that the Company or the Trustee may determine to hold any
such meetings simultaneously in Buenos Aires and in The City of New York by any
means of telecommunication (in compliance with CNV requirements as determined by
the party calling the meeting) which allows the participants to hear and to
speak to each other. In any case, meetings shall be held at such time and at
such place in any such city as the Company or the Trustee shall determine. If a
meeting is being held pursuant to a request of Holders, the agenda for the
meeting shall be as determined in the request and such meeting shall be convened
within twenty-one (21) days from the date such request is received by the
Trustee or the Company, as the case may be. Notice of any meeting of Holders
(which shall include the date, place and time of the meeting, the agenda
therefor and the requirements to attend) shall be given not less than twenty
(20) days nor more than forty five (45) days prior to the date fixed for the
meeting in the Boletin Oficial de la Republica Argentina (the Official Gazette
of the Republic of Argentina), in a widely distributed newspaper in Argentina
and in the manner provided in Condition 17 of the Terms and Conditions. Any
publication thereof shall be for five consecutive business days in each place of
publication. To be entitled to vote at any meeting of Holders a Person shall be
(i) a Holder of one or more Notes as of the record date set for such meeting or
if no such record date shall have been so determined, as of the date of the
meeting or (ii) a Person appointed by an
instrument in writing as a proxy by such Holder. The only Persons who shall be entitled to be present or speak at any meeting of Holders shall be the Persons entitled to vote for on or behalf of the Holders of Notes at such meeting and their representatives and counsel and any representative of the Company and its counsel. With respect to all other matters not contemplated in this Indenture, meetings of Holders shall be held in accordance with the Negotiable Obligations Law.
(b) Decisions shall be made by the affirmative vote of the Holders of a majority in aggregate principal amount of the Notes of each Class affected by such decisions at the time Outstanding present or represented at a meeting of such Holders at which a quorum of each such Class is present; provided, however, that the unanimous consent or the unanimous affirmative vote of the Holders of such Class shall be required to adopt a valid decision to
(i) change the Stated Maturity of the principal of, or any installment of interest on, any Note, or reduce the principal amount thereof or the rate of interest thereon or any premium or Additional Amount payable thereon, or change the place of payment where, or the coin or currency in which, any Note or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(ii) reduce the percentage in principal amount of the Outstanding Notes, the consent of the Holders of which is required for the adoption of a resolution or the quorum required at any meeting of Holders of Notes at which a resolution is adopted or the percentage in principal amount of Outstanding Notes the Holders of which are entitled to request the calling of a Holders' meeting, or
(iii) modify any of the provisions of this Section 9.7(b), except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Note affected thereby, or
(iv) modify or alter the definition of the term "Outstanding" or
(v) modify any provision of the Notes which would constitute a "fundamental change" as contemplated by Article 354 of Argentine Law No. 19,550, as amended.
The quorum at any meeting called to adopt a resolution will be persons holding or representing a majority in aggregate principal amount of the Notes of each Class entitled to vote at the time Outstanding; provided, however, that at any such reconvened meeting adjourned for lack of the requisite quorum, the quorum will be persons present at such meeting holding or duly representing Outstanding Notes of such Class. Notice of a reconvened meeting shall be given as provided in Section 9.7(a) except that such notice shall be published for three (3) days, the last of which must be not less than eight (8) days prior to the date on which the meeting is scheduled to reconvene. Any Holder of Notes who has executed an instrument in writing appointing a Person as proxy shall be deemed to be present for the purpose of determining a quorum and be deemed
to have voted. Any instrument given by or on behalf of any Holder in connection with any consent to any such waiver or change will be irrevocable once given and will be conclusive and binding on all subsequent Holders of such Note. Except as provided above, any modifications, amendments or waivers to the terms and conditions of the Notes will be conclusive and binding on all Holders, whether or not they have given such consent or were present at any meeting, and whether or not notation of such modifications, amendments or waivers is made upon the Notes if duly passed at a meeting convened and held in accordance with the provisions of the Negotiable Obligation Law. The appointment of any proxy shall be proved by having the signature of the person executing the proxy certified by a notary public, bank, trust company reasonably satisfactory to the Company or judicially certified in the manner provided under Argentine law. The following Persons may not act as proxies: members of the Board of Directors or the Supervisory Committee of the Company and managers and other employees of the Company. The holding of a beneficiary interest in a Global Note shall be proved by a certificate of the Depositaries.
A representative of the Trustee shall act as temporary chairman of the meeting. If the trustee fails to designate a representative to act as temporary chairman of the meeting, the Company shall designate a member of the Supervisory Committee to act as such. If the Company fails to designate such a person, the CNV or a competent court shall designate the chairman.
At any meeting of Holders of any Class each Holder of such Class or proxy shall be entitled to one vote per US$1.00 principal amount of Notes of such Class held or represented by such Holder; provided that no vote shall be cast or counted at any meeting in respect of any Note challenged and ruled by the Chairman of such meeting not to be Outstanding.
ARTICLE X
SUBORDINATION
Section 10.1. Agreement To Subordinate. (a) The Company agrees, and each Holder by accepting a Subordinated Note agrees, that the Indebtedness evidenced by, and all other obligations in respect of, the Subordinated Notes is subordinated in right of payment to all Senior Indebtedness in accordance with the provisions of Communique "A" 2970 and other complementary regulations issued by the Argentine Central Bank. Therefore, in the event of bankruptcy of the Company, the Subordinated Notes will only have priority in payment with respect to the shareholders of the Company and the Holders thereof hereby waive any general or special privilege that they may have.
(b) The lack of payment of principal of (and premium and Additional
Amounts, if any) and interest on any or all of the Subordinated Notes shall not
be considered an event which gives rise to the cancellation of the Company's
authorization to operate as a financial institution, provided, however, that:
(i) the Company and the Holders of Subordinated Notes agree, within the year in
which such amounts became due and payable, on the manner in which payment of
amounts due shall be made; (ii) the Company complies regularly with payments on
the Senior Indebtedness; (iii) the Company does not pay cash dividends to its
shareholders; and
(iv) the Company does not pay any fees to its directors and comptrollers (sindicos), except to those that exercise executive functions.
(c) Failure by the Company to comply with the provisions included in
(b) above shall not render the Argentine Central Bank liable in any respect.
Section 10.2. Notice to Holders of Senior Indebtedness. If payment of the Subordinated Notes is accelerated because of a Subordinated Note Event of Acceleration pursuant to the terms of the Subordinated Notes, the Company or the Trustee shall promptly notify the holders of the Senior Indebtedness (or their Representatives) of the acceleration; provided, however, that the Company and the Trustee shall be obligated to notify such holders of the Senior Indebtedness or their Representative(s) only if such holders of the Senior Indebtedness or their Representative(s) has delivered or caused to be delivered to the Company or the Trustee an address or addresses for service of such a notice(s) (and the Company and the Trustee shall only be obligated to deliver the notice(s) to the address(es) so specified).
Section 10.3. Rights of Trustee and Paying Agent. (a) Notwithstanding anything contained herein, the Paying Agents may continue to make payments on the Subordinated Notes and neither the Paying Agents nor the Trustee shall be charged with knowledge of the existence of facts that would prohibit the making of any such payments unless, not less than two Business Days prior to the date of such payment, the Trustee and the Paying Agents each receive notice in writing satisfactory to each of them that payments may not be made hereunder. The Company, the Registrar or Co-Registrar, the Paying Agents, a Representative or a holder of Senior Indebtedness may give the notice; provided, however, that, if an issue of Senior Indebtedness has a Representative, only the Representative may give the notice.
(b) The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same rights it would have if it were not Trustee. The Registrar and Co-Registrar and the Paying Agent may do the same with like rights. The Trustee shall be entitled to all the rights set forth herein with respect to any Senior Indebtedness which may at any time be held by it, to the same extent as any other holder of Senior Indebtedness; and nothing in Article VII shall deprive the Trustee of any of its rights as such holder. Nothing in this Article X shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.7.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the provision required by the TIA shall control.
Section 11.2. Notices(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Banco de Galicia y Buenos Aires S.A.
Tte. Gral. Juan D. Peron 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Argentina
Attention: Dra. Matilde Hoenig
Office of the General Counsel
Tel. +(5411) 6 329-6000
Fax +(5411) 6 329-6429
if to the Trustee or Co-Registrar:
The Bank of New York
Corporate Trust Administration
101 Barclay Street, Floor 21W
New York, NY 10286
Attention: Thomas E. Tabor
Tel: +1 (212) 815-5381
Fax: +1 (212) 815-5802
if to the Registrar:
Banco Rio de la Plata S.A.
Bartolome Mitre 480
(C1036AAH) Buenos Aires, Argentina
Attention: Betina Garcia - Area Fideicomisos y Custodia
Tel: +(5411) 4341-1000
Fax: +(5411) 4341-2000
Any of the foregoing Persons by notice to the others may designate additional or different addresses for subsequent notices or communications. The Company shall be required to cause all such other publications and notices as may be required from time to time by applicable Argentine law.
(b) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder's address as it appears on the registration books of the Co-Registrar and shall be sufficiently given if so mailed within the time prescribed.
(c) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
Section 11.3. Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar, the Co-Registrar and anyone else shall have the protection of TIA
Section 312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take or refrain from taking any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 11.5. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers' Certificate or on certificates of public officials.
Section 11.6. Rules by Trustee, Paying Agent, Registrar and Co-Registrar. Subject to Section 9.7, the Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar, Co-Registrar and the Paying Agent may make reasonable rules for their functions.
Section 11.7. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City or Argentina. If a payment date is a Legal Holiday, payment shall be made on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 11.8. Governing Law, etc. (a) THIS INDENTURE AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. PROVIDED HOWEVER THAT,
ALL MATTERS RELATING TO THE DUE AUTHORIZATION, EXECUTION, ISSUANCE AND DELIVERY
OF THE NOTES BY THE COMPANY, THE APPROVAL OF THE CNV FOR THE OFFERING OF THE
NOTES IN ARGENTINA AND MATTERS RELATING TO THE LEGAL REQUIREMENTS NECESSARY FOR
THE NOTES TO QUALIFY AS "NEGOTIABLE OBLIGATIONS" UNDER ARGENTINE LAW SHALL BE
GOVERNED BY THE NEGOTIABLE OBLIGATIONS LAW, AND OTHER APPLICABLE ARGENTINE LAWS
AND REGULATIONS. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
INDENTURE OR THE NOTES OR ANY TRANSACTION RELATED HERETO OR THERETO.
(b) Each party hereto hereby:
(i) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes, as the case may be, may be instituted in any Federal or state court sitting in The City of New York and Argentina,
(ii) waives to the extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum,
(iii) irrevocably submits to the non-exclusive jurisdiction of such courts in any suit, action or proceeding,
(iv) agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding and may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and
(v) agrees that service of process by mail to the addressed specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.
(c) The Company has appointed CT Corporation System located at 111 Eighth Avenue, New York, New York 10011 as its authorized agent (the "Authorized Agent") upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in The City of New York, New York. The Company hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Company agrees that the
appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Company of a successor agent in The City of New York, New York as its authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Company.
(d) To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Indenture or the Notes.
(e) Nothing in this Section 11.8 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
Section 11.9. No Recourse Against Others. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes, this Indenture or for any claim based on, in respect of or by reason of such obligations or their creation notwithstanding the provisions of Article 34 of the Negotiable Obligations Law. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes.
Section 11.10. Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the other parties hereto in this Indenture shall bind their respective successors.
Section 11.11. Duplicate and Counterpart Originals. The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement.
Section 11.12. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.13. Currency Indemnity. (a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Company under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Company, any Subsidiary or otherwise) by any Holder of the Notes in respect of any sum expressed to be due to it from the Company shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do so). If that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Company shall indemnify and hold harmless the recipient against any loss or cost sustained by it in making any such purchase. For the purposes of this , it will be sufficient for the Holder of a Note to certify that it would have suffered a loss had an actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
(b) The indemnities of the Company contained in this Section 11.13, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Company under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Company; (iii) shall apply irrespective of any waiver granted by any Holder of the Notes or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
Section 11.14. Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
BANCO DE GALICIA Y BUENOS AIRES
S.A.
By: /s/ Hector E. Arzeno ---------------------------------------- Name: Hector E. Arzeno Title: Executive Vice President |
THE BANK OF NEW YORK,
as Trustee, Co-Registrar, Transfer Agent
and Paying Agent
By: /s/ Thomas E. Tabor --------------------------------------- Name: Thomas E. Tabor Title: Vice President |
BANCO RIO DE LA PLATA S.A.
as Registrar and Paying Agent and Transfer
Agent in Argentina
By: /s/ Claudio A. Cesario --------------------------------------- Name: CLAUDIO A. CESARIO Title: Apoderado By: /s/ Nicolas del Campo --------------------------------------- Name: Nicolas del Campo Title: Gerente Departamental |
EXHIBIT A-1
FORM OF LONG TERM NOTE
BANCO DE GALICIA Y BUENOS AIRES S.A.
(incorporated in Buenos Aires, Argentina as a sociedad anonima under the laws of the Republic of Argentina, with a term of duration expiring on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, (C1038AAI) Buenos Aires, Argentina)
IT IS EXPECTED THAT THIS NOTE WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR PURPOSES OF SECTIONS 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS NOTE IS MAY 18, 2004. FOR INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF OID PER US$1,000 OF PRINCIPAL AMOUNT AND YIELD TO MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE OFFICE OF THE GENERAL COUNSEL, BANCO DE GALICIA Y BUENOS AIRES S.A., TTE. GRAL. JUAN D. PERON 407, 2 degrees PISO, (C1038AAI) BUENOS AIRES, ARGENTINA.
[Include the following legend for Global Notes only:
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO BANCO DE GALICIA Y BUENOS AIRES S.A. (THE "COMPANY") OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.]
[Include the following Private Placement Legend on all Notes that are Restricted Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
EXHIBIT A-1
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[Include the following legend on all Certificated Notes that are Restricted Notes:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE COMPANY, NOTES CUSTODIAN AND CO-REGISTRAR SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE RESTRICTIONS APPLICABLE TO SUCH TRANSFER UNDER THE SECURITIES ACT AS PROVIDED FOR IN THE INDENTURE.]
[Include the following legend on all AI Notes:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF BANCO DE GALICIA Y
BUENOS AIRES S.A. (THE "COMPANY") THAT (A) THIS NOTE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY TO THE COMPANY OR ANY SUBSIDIARY THEREOF
OR (I) IN THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) IN THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT) IN A MINIMUM AMOUNT OF
US$250,000, AND WHO, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE AND THE
COMPANY A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE COMPANY) AND, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO ANY EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
Exhibit A-1
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE AND THE COMPANY SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE.]
This Note is excluded from the Argentine Deposit Guarantee Insurance System (Argentine Law No. 24,485). In addition, this Note has neither a special priority right of payment (privilegio especial, exclusivo y excluyente) nor a general priority right of payment (privilegio general y absoluto) granted to depositors in case of the liquidation or bankruptcy of Banco de Galicia y Buenos Aires S.A. pursuant to section 49(e) of Argentine Law No. 21,526, as amended (the "Financial Institutions Law"). Furthermore, this Note is not entitled to any liens on the assets of Banco de Galicia y Buenos Aires S.A. (garantia flotante or especial, under Argentine law), nor is it secured by any other means or guaranteed by any other financial institution.
Exhibit A-1
FORM OF FACE OF NOTE
No. [_____] Principal Amount US$[_______________] [If the Note is a Global Note include the following two lines: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] CUSIP NO. _________ ISIN NO.________ Banco de Galicia y Buenos Aires S.A., an Argentine corporation, |
promises to pay to [__________], or registered assigns, the principal sum of
[____________________] U.S. Dollars (the "Principal Amount") [If the Note is a
Global Note, add the following, as such Principal Amount is revised by the
Schedule of Increases and Decreases in Global Note attached hereto,
semi-annually on January 1 and July 1 (each, a "Payment Date"), commencing on
January 1, 2010, in installments each equal to an amount equal to the product of
(x)(i) the aggregate amount of Long-Term Notes outstanding as of the Issue Date
multiplied by (ii)(A) with respect to the first eight installments payable under
this Note, 0.1111 and (B) with respect to the ninth installment payable under
this Note, 0.1112 multiplied by (y) an amount equal to the product of (i) the
Principal Amount of this Note outstanding on such Payment Date (prior to giving
effect to any repayment of principal hereof required to be made on such date)
divided by (ii) the aggregate amount of Long-Term Notes outstanding as of such
Payment Date (prior to giving effect to any repayment hereof required to be made
on such date), until January 1, 2014 (the "Maturity Date"), when the remaining
outstanding Principal Amount will be due and payable (as such installments may
be reduced from time to time pursuant to optional or mandatory repayments made
in accordance with Article V of the Indenture).][If the Note is a Certificated
Note, add the following, semi-annually on January 1 and July 1 (each, a "Payment
Date"), commencing on January 1, 2010, in installments each equal to an amount
equal to the product of (x) the aggregate amount of Long-Term Notes outstanding
as of the Issue Date multiplied by (y) (i) for the first eight installments
payable hereunder, 0.1111 and (ii) for the last installment payable hereunder on
January 1, 2014 (the "Maturity Date"), 0.1112 (as such installments may be
reduced from time to time pursuant to optional or mandatory repayments made in
accordance with Article V of the Indenture).]
Interest on this Note will be payable in cash semi-annually in arrears on January 1 and July 1 of each year (each an "Interest Payment Date"), commencing on July 1, 2004. Interest on the Principal Amount will accrue at a fixed rate of 3% per annum for the period from and including January 1, 2004 through December 31, 2004, 4% per annum for the period from and including January 1, 2005 through December 31, 2005, 5% per annum for the period from and including January 1, 2006 through December 31, 2006, 6% per annum for the period from and including January 1, 2007 through December 31, 2007 and 7% per annum thereafter until the Maturity Date. Interest on this Notes will be paid to holders of record at the close of business on
Exhibit A-1
December 15 or June 15, as the case may be, immediately preceding the Interest Payment Date (each a "Record Date").
Exhibit A-1
Additional provisions of this Note are set forth on the other side of this Note.
BANCO DE GALICIA Y BUENOS AIRES
S.A.
Title:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
Exhibit A-1
FORM OF REVERSE SIDE OF NOTE
This Note is an obligacion negociable under Argentine Law No. 23,576, as amended (the "Negotiable Obligations Law"), and is one of a duly authorized issue of notes of Banco de Galicia y Buenos Aires S.A., an Argentine corporation (the "Company"), with a term of duration elapsing on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, 2 degrees Piso, (C1038AAI) Buenos Aires, Argentina. This Note is issuable in one or more Classes and limited in aggregate principal amount to US$[__] issued and to be issued under an indenture, dated as of May 18, 2004 (the "Indenture"), among the Company, The Bank of New York, as trustee (the "Trustee"), as co-registrar (the "Co-Registrar"), as a transfer agent (a "Transfer Agent") and as a paying agent (a "Paying Agent"), and Banco Rio de la Plata S.A., as registrar (the "Registrar"), and as Paying Agent and Transfer Agent in Argentina. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to them in the Indenture.
1. Interest
The Company promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually in arrears on each Interest Payment Date of each year commencing on July 1, 2004. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from January 1, 2004. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and, to the extent such payments are lawful, interest on overdue installments of interest ("Defaulted Interest") without regard to any applicable grace periods at the rate of 2.0% per annum in excess of the rate shown on this Note, as provided in the Indenture.
All payments by the Company in respect of the Notes will be made without withholding or deduction for or on account of any present or future taxes, duties, levies, withholdings or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or established in the future by or on behalf of Argentina or any political subdivision or authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, the Company will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which any principal of or interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of Notes at the
Exhibit A-1
close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by DTC. The Company will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each Holder thereof provided, however, that payments on the Notes may also be made, in the case of a Holder of at least US$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. Dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Registrar, Paying Agent and Transfer Agent
Initially, Banco Rio de la Plata S.A. will act as Registrar, Paying Agent and Transfer Agent in Argentina, The Bank of New York will act as Trustee, Paying Agent and Co-Registrar and Kredietbank S.A. Luxembourgeoise will act as Luxembourg Paying Agent and Transfer Agent. The Company may appoint and change any Paying Agent, Registrar or Co-Registrar without notice to any Holder. The Company may act as Paying Agent, Registrar or Co-Registrar.
4. Indenture
The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms. Each Holder by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture.
The Notes are general unsecured obligations of the Company.
According to section 49 e) of the Financial Institutions Law, as amended by Law No. 25,780 dated September 5, 2003 (published on September 8, 2003), in case of judicial liquidation or bankruptcy of a financial entity, holders of deposits in pesos and foreign currency and creditors extending commercial lines of credit directly related to international trade benefit from a general priority right to obtain repayment as set forth below, with priority rank over all other creditors, with the exception of the following credits: (i) credits secured by mortgage or pledge, (ii) credits from rediscounts and overdrafts granted to financial entities by the Argentine Central Bank, according to section 17 subsections b), c) and f) of the Argentine Central Bank Charter, (iii) credits granted by the Banking Liquidity Fund (Fondo de Liquidez Bancaria) created by Decree No. 32 of December 26, 2001, secured by mortgage or pledge and (iv) certain labor credits, including accrued interest until its total cancellation. Pursuant to section 16 of Law 25,780 during the term of emergency set forth under the Public Emergency Law No. 25,561, the Argentine Central Bank can grant rediscounts and overdrafts to financial entities with liquidity
Exhibit A-1
and solvency problems, including entities undergoing a restructuring as contemplated in section 35 bis of the Financial Institutions Law.
The holders of the following deposits are entitled to the general preferential right established by the Financial Institutions Law (following this order of preference),
(i) deposits of individuals or legal entities up to Ps.50,000 or the equivalent thereof in foreign currency, enjoying this preference only one person per deposit. For the determination of this preference, all deposits of the same person registered by the entity shall be computed;
(ii) deposits in excess of Ps.50,000 or the equivalent thereof in foreign currency, referred to above;
(iii) liabilities originated on commercial credit lines granted to the financial entity, which are directly in connection with international trade.
According to the Financial Institutions Law, the preferences set forth in previous paragraphs (i) and (ii) above, are not applicable to deposits held by persons who are affiliates of the financial entity, either directly or indirectly, as determined by procedures that the Argentine Central Bank will establish.
In addition, under section 53 of the Financial Institutions Law, the Argentine Central Bank has an absolute priority right over all other creditors of the entity except for the ones mentioned above.
This Note is not entitled to a lien on any of the assets of the Company ("garantia flotante" or "especial" as defined under Argentine law) nor is it secured by any other means guaranteed by any other financial institution. This Note is excluded from the deposit insurance system established by Law No. 24,485. Additionally, this Note has no general priority right of payment in the case of bankruptcy or liquidation of the Company as the provisions of section 49(e) of the Financial Institutions Law are not applicable to this Note.
The Indenture imposes certain limitations on, among other things, the incurrence of indebtedness, the maintenance of insurance, the payment of dividends, the purchase and or redemption of the Company's capital stock, the Company's transactions with its Affiliates and the sale, transfer, lease or disposition of the Company's assets.
5. Redemption
The Notes are subject to redemption, at the option of the Company, and in certain cases, upon the occurrence of certain events, as otherwise described in Article V of the Indenture. On and after the redemption date, interest will cease to accrue on Notes or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
Exhibit A-1
6. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and in any denominations in integral multiple of US$1.00 of principal amount. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar or Co-Registrar, as the case may be, may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar and the Co-Registrar need not register the transfer or exchange of (i) any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) for a period beginning 15 days before the mailing of a notice of Notes to be redeemed and ending on the date of such mailing or (ii) any Notes for a period beginning 15 days before an Interest Payment Date and ending on such Interest Payment Date.
7. Persons Deemed Owners
The registered holder of this Note shall be treated as the owner of it for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall return the money to the Company at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
9. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
10. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes of each Class and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of two-thirds in principal amount of the then Outstanding Notes of each Class. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with Article IV of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Company, or to comply with any request of the SEC in connection with qualifying the Indenture under the TIA, or to make any change that does not adversely affect the rights of any Holder.
Exhibit A-1
11. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes of each Class may declare all the Notes of such Class to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the Notes being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes of each Class may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
12. Trustee and Agent Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee and each Agent under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee or Agent, as the case may be.
13. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
14. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
15. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
Exhibit A-1
16. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17. ISIN Numbers
The Company has caused ISIN numbers to be printed on the Notes and has directed the Trustee to use ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
18. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York, provided that all issues related to the due authorization, execution, issuance and delivery of this Note by the Company, the approval of the CNV for the public offering of this Note in Argentina and all issues related to the legal requirements necessary for this Note to qualify as a "negotiable obligation" under Argentine law shall be governed by the Negotiable Obligations Law, and other applicable Argentine laws and regulations.
19. Currency of Account; Conversion of Currency
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Company under or in connection with the Notes or the Indenture, including damages. The Company will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
20. Agent for Service; Submission to Jurisdiction; Waiver of Immunities
The Company has agreed that any suit, action or proceeding against the Company brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal court in The City of New York, New York. The Company has irrevocably submitted to the non-exclusive jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Company has appointed CT Corporation System as its authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in The City of New York, New York. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or
Exhibit A-1
otherwise) with respect to itself or any of its property, the Company has irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
Exhibit A-1
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Banco de Galicia y Buenos Aires S.A.
Tte. Gral. Juan D. Peron 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Argentina
Attention: Dra. Matilde Hoenig
Tel. +(5411) 6 329-6000
Fax +(5411) 6 329-6429
Exhibit A-1
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:____________________ Your Signature:_________________________
Signature Guarantee:_______________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule l7Ad-15.
Exhibit A-1
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of Amount of decrease Amount of increase in this Global Note authorized signatory Date of in Principal Amount Principal Amount of following such of Trustee or Note Exchange of this Global Note this Global Note decrease or increase Custodian -------- ------------------- --------------------- --------------------- -------------------- |
EXHIBIT A-2
FORM OF MEDIUM TERM NOTE
BANCO DE GALICIA Y BUENOS AIRES S.A.
(incorporated in Buenos Aires, Argentina as a sociedad anonima under the laws of the Republic of Argentina, with a term of duration expiring on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, (C1038AAI) Buenos Aires, Argentina)
IT IS EXPECTED THAT THIS NOTE WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR PURPOSES OF SECTIONS 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS NOTE IS MAY 18, 2004. FOR INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF OID PER US$1,000 OF PRINCIPAL AMOUNT AND YIELD TO MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE OFFICE OF THE GENERAL COUNSEL AT BANCO DE GALICIA Y BUENOS AIRES S.A., TTE. GRAL. JUAN D. PERON 407, 2 degrees PISO, (C1038AAI) BUENOS AIRES ARGENTINA.
[Include the following legend for Global Notes only:
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.]
[Include the following Private Placement Legend on all Notes that are Restricted Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
EXHIBIT A-2
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[Include the following legend on all Certificated Notes that are Restricted Notes:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE COMPANY, NOTES CUSTODIAN AND CO-REGISTRAR SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE RESTRICTIONS APPLICABLE TO SUCH TRANSFER UNDER THE SECURITIES ACT AS PROVIDED FOR IN THE INDENTURE.]
[Include the following legend on all AI Notes:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF BANCO DE GALICIA Y
BUENOS AIRES S.A. (THE "COMPANY") THAT (A) THIS NOTE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY TO THE COMPANY OR ANY SUBSIDIARY THEREOF
OR (I) IN THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) IN THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT) IN A MINIMUM AMOUNT OF
US$250,000, AND WHO, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE AND THE
COMPANY A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE COMPANY) AND, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO ANY EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
Exhibit A-2
ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE AND THE COMPANY SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE.]
This Note is excluded from the Argentine Deposit Guarantee Insurance System (Argentine Law No. 24,485). In addition, this Note has neither a special priority right of payment (privilegio especial, exclusivo y excluyente) nor a general priority right of payment (privilegio general y absoluto) granted to depositors in case of the liquidation or bankruptcy of Banco de Galicia y Buenos Aires S. A. pursuant to section 49(e) of Argentine Law No. 21,526, as amended (the "Financial Institutions Law"). Furthermore, this Note is not entitled to any liens on the assets of Banco de Galicia y Buenos Aires S.A. (garantia flotante or especial, under Argentine law), nor is it secured by any other means or guaranteed by any other financial institution.
Exhibit A-2
FORM OF FACE OF NOTE
No. [___] Principal Amount US$[_______________] [If the Note is a Global Note include the following two lines: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] CUSIP NO.__________ ISIN NO.__________ Banco de Galicia y Buenos Aires S.A., an Argentine corporation, |
promises to pay to [__________], or registered assigns, the principal sum of
[________________] U.S. Dollars (the "Principal Amount") [If the Note is a
Global Note, add the following, , as revised by the Schedule of Increases and
Decreases in Global Note attached hereto, semi-annually on January 1 and July 1
(each, a "Payment Date"), commencing on July 1, 2006, in installments each equal
to an amount equal to the product of (x)(i) the aggregate amount of Medium-Term
Notes outstanding as of the Issue Date divided by (ii) eight multiplied by (y)
an amount equal to the product of (i) the Principal Amount of this Note
outstanding on such Payment Date (prior to giving effect to any repayment of
principal hereof required to be made on such date) divided by (ii) the aggregate
amount of Medium-Term Notes outstanding as of such Payment Date (prior to giving
effect to any repayment hereof required to be made on such date), until January
1, 2010 (the "Maturity Date"), when the remaining outstanding Principal Amount
will be due and payable (as such installments may be reduced from time to time
pursuant to optional or mandatory repayments made in accordance with Article V
of the Indenture).][If the Note is a Certificated Note, add the following,
semi-annually on January 1 and July 1 (each, a "Payment Date"), commencing on
July 1, 2006, in installments each equal to 12.5% of the Principal Amount of
this Note outstanding as of the date hereof, until January 1, 2010 (the
"Maturity Date") (as such installments may be reduced from time to time pursuant
to optional or mandatory repayments made in accordance with Article V of the
Indenture).]
Interest on this Note will be payable in cash semi-annually in arrears on January 1 and July 1 of each year (each an "Interest Payment Date"), commencing on July 1, 2004. Interest on the Principal Amount will accrue at a floating rate equal to LIBOR plus 3.5% per annum beginning on January 1, 2004 through but not including the Maturity Date. Interest on this Notes will be paid to holders of record at the close of business on December 15 or June 15, as the case may be, immediately preceding the Interest Payment Date (each a "Record Date").
For purposes of this Note, the following terms shall have the following meaning:
"Eurodollar Business Day" means any Business Day (as defined in the Indenture) which commercial banks are open in London for the transaction of international business, including dealings in U.S. Dollar deposits in the international interbank markets.
Exhibit A-2
"Interest Period" means each period of six (6) months from but not including each Interest Payment Date to and including the next following Interest Payment Date commencing on July 1, 2004.
"LIBOR", applicable to any Interest Period, means the rate per annum for deposits in U.S. Dollars for a period equal to such Interest Period quoted on the second Eurodollar Business Day prior to the first day of such Interest Period, as such rate appears on the Telerate Page 3750 as of 11:00 a.m. (London time) on such date in each case as determined by the Trustee and notified to the Company on such second prior Eurodollar Business Day. If LIBOR cannot be determined based on the Telerate Page 3750, LIBOR means the rate per annum, as supplied to the Trustee, quoted by The Bank of New York's London Branch to prime banks in the London interbank market for deposits in U.S. Dollars at approximately 11:00 a.m. (London time) two Eurodollar Business Days prior to the first day of such Interest Period in an amount approximately equal to the Principal Amount to which such Interest Period is to apply and for a period of time comparable to such Interest Period.
Exhibit A-2
Additional provisions of this Note are set forth on the other side of this Note.
BANCO DE GALICIA Y BUENOS AIRES
S.A.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:___________________________
Authorized Signatory Date:_______________________________________
Exhibit A-2
FORM OF REVERSE SIDE OF NOTE
This Note is an obligacion negociable under Argentine Law No. 23,576, as amended (the "Negotiable Obligations Law"), and is one of a duly authorized issue of notes of Banco de Galicia y Buenos Aires S.A., an Argentine corporation (the "Company"), with a term of duration elapsing on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, 2 degrees Piso, (C1038AAI) Buenos Aires, Argentina. This Note is issuable in one or more Classes and limited in aggregate principal amount to US$[__] issued and to be issued under an indenture, dated as of May 18, 2004 (the "Indenture"), among the Company, The Bank of New York, as trustee (the "Trustee"), as co-registrar (the "Co-Registrar"), as a transfer agent (a "Transfer Agent") and as a paying agent (a "Paying Agent"), and Banco Rio de la Plata S.A., as registrar (the "Registrar"), and as Paying Agent and Transfer Agent in Argentina. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to them in the Indenture.
1. Interest
The Company promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually in arrears on each Interest Payment Date of each year commencing July 1, 2004. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from January 1, 2004. Interest will be computed at an annual floating interest rate equal to the six-month LIBOR-based floating rate plus 3.50% per annum.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and, to the extent such payments are lawful, interest on overdue installments of interest ("Defaulted Interest") without regard to any applicable grace periods at the rate of 2.0% per annum in excess of the rate shown on this Note, as provided in the Indenture.
All payments by the Company in respect of the Notes will be made without withholding or deduction for or on account of any present or future taxes, duties, levies, withholdings or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or established in the future by or on behalf of Argentina or any political subdivision or authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, the Company will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which any principal of or interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of Notes at the
Exhibit A-2
close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by DTC. The Company will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each Holder thereof provided, however, that payments on the Notes may also be made, in the case of a Holder of at least US$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. Dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Registrar, Paying Agent and Transfer Agent
Initially, Banco Rio de la Plata S.A. will act as Registrar, Paying Agent and Transfer Agent in Argentina, The Bank of New York will act as Trustee, Paying Agent and Co-Registrar and Kredietbank S.A. Luxembourgeoise will act as Luxembourg Paying Agent and Transfer Agent. The Company may appoint and change any Paying Agent, Registrar or co-registrar without notice to any Holder. The Company may act as Paying Agent, Registrar or co-registrar.
4. Indenture
The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms. Each Holder by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture.
The Notes are general unsecured obligations of the Company.
According to section 49 e) of the Financial Institutions Law, as amended by Law No. 25,780 dated September 5, 2003 (published on September 8, 2003), in case of judicial liquidation or bankruptcy of a financial entity, holders of deposits in pesos and foreign currency and creditors extending commercial lines of credit directly related to international trade benefit from a general priority right to obtain repayment as set forth below, with priority rank over all other creditors, with the exception of the following credits: (i) credits secured by mortgage or pledge, (ii) credits from rediscounts and overdrafts granted to financial entities by the Argentine Central Bank, according to section 17 subsections b), c) and f) of the Argentine Central Bank Charter, (iii) credits granted by the Banking Liquidity Fund (Fondo de Liquidez Bancaria) created by Decree No. 32 of December 26, 2001, secured by mortgage or pledge and (iv) certain labor credits, including accrued interest until its total cancellation. Pursuant to section 16 of Law 25,780 during the term of emergency set forth under the Public Emergency Law No. 25,561, the Argentine Central Bank can grant rediscounts and overdrafts to financial entities with liquidity
Exhibit A-2
and solvency problems, including entities undergoing a restructuring as contemplated in section 35 bis of the Financial Institutions Law.
The holders of the following deposits are entitled to the general preferential right established by the Financial Institutions Law (following this order of preference),
(i) deposits of individuals or legal entities up to Ps.50,000 or the equivalent thereof in foreign currency, enjoying this preference only one person per deposit. For the determination of this preference, all deposits of the same person registered by the entity shall be computed;
(ii) deposits in excess of Ps.50,000 or the equivalent thereof in foreign currency, referred to above;
(iii) liabilities originated on commercial credit lines granted to the financial entity, which are directly in connection with international trade.
According to the Financial Institutions Law, the preferences set forth in previous paragraphs (i) and (ii) above, are not applicable to deposits held by persons who are affiliates of the financial entity, either directly or indirectly, as determined by procedures that the Argentine Central Bank will establish.
In addition, under section 53 of the Financial Institutions Law, the Argentine Central Bank has an absolute priority right over all other creditors of the entity except for the ones mentioned above.
This Note is not entitled to a lien on any of the assets of the Company ("garantia flotante" or "especial" as defined under Argentine law) nor is it secured by any other means guaranteed by any other financial institution.
This Note is excluded from the deposit insurance system established by Law No. 24,485. Additionally, this Note has no general priority right of payment in the case of bankruptcy or liquidation of the Company as the provisions of section 49(e) of the Financial Institutions Law are not applicable to this Note.
The Indenture imposes certain limitations on, among other things, the incurrence of indebtedness, the maintenance of insurance, the payment of dividends, the purchase and or redemption of the Company's capital stock, the Company's transactions with its Affiliates and the sale, transfer, lease or disposition of the Company's assets.
5. Redemption
The Notes are subject to redemption, at the option of the Company, and in certain cases, upon the occurrence of certain events, as otherwise described in Article V of the Indenture. On and after the redemption date, interest will cease to accrue on Notes or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
Exhibit A-2
6. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and in any denomination of principal amount and in integral multiple of US$1.0 thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar or the Co-Registrar, as the case may be, may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar and the Co-Registrar need not register the transfer or exchange of (i) any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) for a period beginning 15 days before the mailing of a notice of Notes to be redeemed and ending on the date of such mailing or (ii) any Notes for a period beginning 15 days before an Interest Payment Date and ending on such Interest Payment Date.
7. Persons Deemed Owners
The registered holder of this Note shall be treated as the owner of it for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall return the money to the Company at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
9. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
10. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes of each Class and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of two-thirds in principal amount of the then Outstanding Notes of each Class. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with Article IV of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Company, or to comply with any request of the SEC in connection with qualifying the Indenture under the TIA, or to make any change that does not adversely affect the rights of any Holder.
Exhibit A-2
11. Defaults and Remedies
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes of each Class may declare all the Notes to be due and payable immediately. Certain events of bankruptcy or insolvency are Events of Default which will result in the Notes being due and payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes of each Class may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
12. Trustee and Agent Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee and each Agent under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee or Agent, as the case may be.
13. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
14. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
15. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
Exhibit A-2
16. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
17. ISIN Numbers
The Company has caused ISIN numbers to be printed on the Notes and has directed the Trustee to use ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
18. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York, provided that all issues related to the due authorization, execution, issuance and delivery of this Note by the Company, the approval of the CNV for the public offering of this Note in Argentina and all issues related to the legal requirements necessary for this Note to qualify as a "negotiable obligation" under Argentine law shall be governed by the Negotiable Obligations Law, and other applicable Argentine laws and regulations.
19. Currency of Account; Conversion of Currency
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Company under or in connection with the Notes or the Indenture, including damages. The Company will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
20. Agent for Service; Submission to Jurisdiction; Waiver of Immunities
The Company has agreed that any suit, action or proceeding against the Company brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal court in The City of New York, New York. The Company has irrevocably submitted to the non-exclusive jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Company has appointed CT Corporation System as its authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in The City of New York, New York. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or
Exhibit A-2
otherwise) with respect to itself or any of its property, the Company has irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Banco de Galicia y Buenos Aires S.A.
Tte. Gral. Juan D. Peron 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Argentina
Attention: Dra. Matilde Hoenig
Tel. +(5411) 6 329-6000
Fax +(5411) 6 329-6429
Exhibit A-2
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:_______________________ Your Signature:______________________
Signature Guarantee:_________________________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15.
Exhibit A-2
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of Amount of decrease Amount of increase in this Global Note authorized signatory Date of in Principal Amount Principal Amount of following such of Trustee or Note Exchange of this Global Note this Global Note decrease or increase Custodian -------- ------------------- ---------------------- -------------------- -------------------- |
EXHIBIT A-3
FORM OF SUBORDINATED NOTE
BANCO DE GALICIA Y BUENOS AIRES S.A.
(incorporated in Buenos Aires, Argentina as a sociedad anonima under the laws of the Republic of Argentina, with a term of duration expiring on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, (C1038AAI) Buenos Aires, Argentina)
IT IS EXPECTED THAT THIS NOTE WILL BE ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR PURPOSES OF SECTIONS 1271 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS NOTE IS MAY 18, 2004. FOR INFORMATION REGARDING THE ISSUE PRICE, AMOUNT OF OID PER US$1,000 OF PRINCIPAL AMOUNT AND YIELD TO MATURITY FOR PURPOSES OF THE OID RULES, PLEASE CONTACT THE OFFICE OF THE GENERAL COUNSEL AT BANCO DE GALICIA Y BUENOS AIRES S.A., TTE. GRAL. JUAN D. PERON 407, 2 degrees PISO, CAPITAL FEDERAL (C1038AAI) BUENOS AIRES ARGENTINA.
[Include the following legend for Global Notes only:
THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE.]
[Include the following Private Placement Legend on all Notes that are Restricted Notes:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THESE SECURITIES NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
Exhibit A-3
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]
[Include the following legend on all Certificated Notes that are Restricted Notes:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE COMPANY, NOTES CUSTODIAN AND CO-REGISTRAR SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE RESTRICTIONS APPLICABLE TO SUCH TRANSFER UNDER THE SECURITIES ACT AS PROVIDED FOR IN THE INDENTURE.]
[Include the following legend on all AI Notes:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF BANCO DE GALICIA Y
BUENOS AIRES S.A. (THE "COMPANY") THAT (A) THIS NOTE MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED, ONLY TO THE COMPANY OR ANY SUBSIDIARY THEREOF
OR (I) IN THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) IN THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT) IN A MINIMUM AMOUNT OF
US$250,000, AND WHO, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE AND THE
COMPANY A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH MAY BE OBTAINED FROM
THE COMPANY) AND, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO ANY EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
Exhibit A-3
ANY PURCHASER OF THIS
NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE AND THE COMPANY SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE.]
This Note is excluded from the Argentine Deposit Guarantee Insurance System (Argentine Law No. 24,485). In addition, this Note has neither a special priority right of payment (privilegio especial, exclusivo y excluyente) nor a general priority right of payment (privilegio general y absoluto) granted to depositors in case of liquidation or bankruptcy of Banco de Galicia y Buenos Aires S.A. pursuant to section 49(e) of Argentine Law No. 21,526, as amended (the "Financial Institutions Law"). Furthermore, the Note is not entitled to any liens on the assets of Banco de Galicia y Buenos Aires S.A. (garantia flotante or especial, under Argentine law), nor is it secured by any other means or guaranteed by any other financial institution.
Exhibit A-3
FORM OF FACE OF NOTE
No. [___] Principal Amount US$[____________] [If the Note is a Global Note include the following two lines: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] CUSIP NO.__________ ISIN NO.__________ Banco de Galicia y Buenos Aires S.A., an Argentine corporation, |
promises to pay to [____________], or registered assigns, the principal sum of
[_______________] U.S. Dollars, as the same may be increased from time to time
after giving effect to any Capitalized Interest (as defined below) or decreased
as a result of the repayment of any such Capitalized Interest (the "Principal
Amount") [If the Note is a Global Note, add the following, as revised by the
Schedule of Increases and Decreases in Global Note attached hereto], on January
1, 2019 (the "Maturity Date"), unless previously redeemed.
Interest on the Principal Amount will be payable (i) in cash and
(ii) in the form of capitalized interest ("Capitalized Interest") (accrued as of
the relevant date, which will be added to the Principal Amount hereof as of such
date, semi-annually in arrears on January 1 and July 1 of each year (each an
"Interest Payment Date"), commencing on July 1, 2004. Interest on the principal
amount paid in cash ("Cash Interest") will accrue at a fixed rate of 6% per
annum beginning January 1, 2004 through but not including January 1, 2014 and,
unless previously redeemed, will increase to 11% per annum beginning January 1,
2014 through but not including the Maturity Date. Interest on the Principal
Amount paid in the form of Capitalized Interest will accrue at a fixed rate of
5% per annum beginning on January 1, 2004 and be payable in full in cash on
January 1, 2014 and the Maturity Date.
Cash Interest and Notes Interest will be paid to holders of record at the close of business on December 15 or June 15, as the case maybe, immediately preceding the Interest Payment Date (each a "Record Date").
Exhibit A-3
Additional provisions of this Note are set forth on the other side of this Note.
BANCO DE GALICIA Y BUENOS AIRES
S.A.
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
The Bank of New York,
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.
By:________________________________
Authorized Signatory Date:__________________________________
Exhibit A-3
FORM OF REVERSE SIDE OF NOTE
This Note is an obligacion negociable under Argentine Law No. 23,576, as amended (the "Negotiable Obligations Law"), and is one of a duly authorized issue of notes of Banco de Galicia y Buenos Aires S.A., an Argentine corporation (the "Company"), with a term of duration elapsing on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, 2 degrees Piso, (C1038AAI) Buenos Aires, Argentina. This Note is issuable in one or more Classes and limited in aggregate principal amount to US$[__] issued and to be issued under an indenture, dated as of May 18, 2004 (the "Indenture"), among the Company, The Bank of New York, as trustee (the "Trustee"), as co-registrar (the "Co-Registrar"), as a transfer agent (a "Transfer Agent") and as a paying agent (a "Paying Agent"), and Banco Rio de la Plata S.A., as registrar (the "Registrar"), and as Paying Agent and Transfer Agent in Argentina. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to them in the Indenture.
1. Interest
The Company promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semiannually in arrears on each Interest Payment Date in cash or in the form of additional Notes on January 1 and July 1 of each year, commencing on July 1, 2004. Cash Interest and Notes Interest will accrue and be payable in the manner provided for on the face of this Note. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and, to the extent such payments are lawful, interest on overdue installments of interest ("Defaulted Interest") without regard to any applicable grace periods at the rate of 2.0% per annum in excess of the rate shown on this Note, as provided in the Indenture.
All payments by the Company in respect of the Notes will be made without withholding or deduction for or on account of any present or future taxes, duties, levies, withholdings or other governmental charges of whatever nature in effect on the date of the Indenture or imposed or established in the future by or on behalf of Argentina or any political subdivision or authority thereof or therein having power to tax, unless such withholding or deduction is required by law. In that event, the Company will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
2. Method of Payment
Prior to 10:00 a.m. New York City time on the date on which any principal of or Cash Interest or Notes Interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or Cash Interest or Notes Interest. The Company will pay Cash Interest and Notes Interest (except
Exhibit A-3
Defaulted Interest) to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Cash Interest Payment Date and/or Notes Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Cash Interest Payment Date and/or Notes Interest Payment Date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by DTC. The Company will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each Holder thereof; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least US$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. Dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
3. Registrar, Paying Agent and Transfer Agent
Initially, Banco Rio de la Plata S.A. will act as Registrar, Paying Agent and Transfer Agent in Argentina, The Bank of New York will act as Trustee, Paying Agent and Co-Registrar and Kredietbank S.A. Luxembourgeoise will act as Luxembourg Paying Agent and Transfer Agent. The Company may appoint and change any Paying Agent, Registrar or Co-Registrar without notice to any Holder. The Company may act as Paying Agent, Registrar or Co-Registrar.
4. Indenture
The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the Indenture and the TIA for a statement of those terms. Each Holder by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture.
The Notes are general unsecured obligations of the Company.
According to section 49 e) of the Financial Institutions Law, as amended by Law No. 25,780 dated September 5, 2003 (published on September 8, 2003), in case of judicial liquidation or bankruptcy of a financial entity, holders of deposits in pesos and foreign currency and creditors extending commercial lines of credit directly related to international trade benefit from a general priority right to obtain repayment as set forth below, with priority rank over all other creditors, with the exception of the following credits: (i) credits secured by mortgage or pledge, (ii) credits from rediscounts and overdrafts granted to financial entities by the Argentine Central Bank, according to section 17 subsections b), c) and f) of the Argentine Central Bank Charter, (iii) credits granted by the Banking Liquidity Fund (Fondo de Liquidez Bancaria) created by Decree No. 32 of December 26, 2001, secured by mortgage or pledge and (iv) certain labor credits, including accrued interest until its total cancellation. Pursuant to section 16 of Law
Exhibit A-3
25,780 during the term of emergency set forth under the Public Emergency Law No. 25,561, the Argentine Central Bank can grant rediscounts and overdrafts to financial entities with liquidity and solvency problems, including entities undergoing a restructuring as contemplated in section 35 bis of the Financial Institutions Law.
The holders of the following deposits are entitled to the general preferential right established by the Financial Institutions Law (following this order of preference),
(i) deposits of individuals or legal entities up to Ps.50,000 or the equivalent thereof in foreign currency, enjoying this preference only one person per deposit. For the determination of this preference, all deposits of the same person registered by the entity shall be computed;
(ii) deposits in excess of Ps.50,000 or the equivalent thereof in foreign currency, referred to above;
(iii) liabilities originated on commercial credit lines granted to the financial entity, which are directly in connection with international trade.
According to the Financial Institutions Law, the preferences set forth in previous paragraphs (i) and (ii) above, are not applicable to deposits held by persons who are affiliates of the financial entity, either directly or indirectly, as determined by procedures that the Argentine Central Bank will establish.
In addition, under section 53 of the Financial Institutions Law, the Argentine Central Bank has an absolute priority right over all other creditors of the entity except for the ones mentioned above.
This Note is not entitled to a lien on any of the assets of the Company ("garantia flotante" or "especial" as defined under Argentine law) nor is it secured by any other means guaranteed by any other financial institution.
This Note is excluded from the deposit insurance system established by Law No. 24,485. Additionally, this Note has no general priority right of payment in the case of bankruptcy or liquidation of the Company as the provisions of section 49(e) of the Financial Institutions Law are not applicable to this Note.
The Indenture imposes certain limitations on, among other things, the incurrence of indebtedness, the maintenance of insurance, the payment of dividends, the purchase and or redemption of the Company's capital stock, the Company's transactions with its Affiliates and the sale, transfer, lease or disposition of the Company's assets.
5. Redemption
The Notes are subject to redemption, at the option of the Company in whole but not in part at the option of the Company at any time on or after the Senior Notes have been repaid in full, subject to the prior authorization of the Superintendency of Financial Entities (Superintendencia de Entidades Financieras y Cambiarias) and provided that upon redemption our paid-in capital (responsabilidad patrimonial computable) is at least equal to or greater than
Exhibit A-3
the minimum capital requirements set forth by the Argentine Central Bank. On and after the redemption date, interest will cease to accrue on Notes or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
6. Denominations; Transfer; Exchange
The Notes are in fully registered form without coupons, and in any denomination of principal amount and in integral multiple of US$1.00 thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar or the Co-Registrar, as the case may be, may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar and the Co-Registrar need not register the transfer or exchange of (i) any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) for a period beginning 15 days before the mailing of a notice of Notes to be redeemed and ending on the date of such mailing or (ii) any Notes for a period beginning 15 days before an Interest Payment date and ending on such Interest Payment Date.
7. Subordination
This Note is subordinated to the Senior Indebtedness, as defined in the Indenture. To the extent permitted in the Indenture, the Senior Indebtedness must be paid before this Note is paid. The Company agrees, and each Holder by accepting this Note agrees, to the subordination provisions contained in the Indenture and authorizes the Trustee to give them effect and appoints the Trustee as attorney in fact for such purpose.
8. Persons Deemed Owners
The registered holder of this Note shall be treated as the owner of it for all purposes.
9. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall return the money to the Company at its written request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
10. Discharge Prior to Redemption or Maturity
Subject to certain conditions set forth in the Indenture, the Company at any time may terminate some or all of its obligations under the Notes and the Indenture if the Company deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
Exhibit A-3
11. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes of each Class and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of two-thirds in principal amount of the then Outstanding Notes of each Class. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Company and the Trustee may amend the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with Article IV of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Company, or to comply with any request of the SEC in connection with qualifying the Indenture under the TIA, or to make any change that does not adversely affect the rights of any Holder.
12. Defaults and Remedies
For Argentine regulatory purposes as set forth in Communique "A" 2970 only, holders of Subordinated Notes shall have no right to accelerate repayment of the Subordinated Notes except under a Subordinated Note Event of Acceleration that has occurred and is continuing. In such situation, all Subordinated Notes shall, without any notice to the Company or any other act by any holder of any Subordinated Note, become immediately due and payable. Upon any such declaration of acceleration, the principal of the Subordinated Notes and the interest accrued thereon and all other amounts (including Additional Amounts) payable with respect to the Subordinated Notes of the affected Class shall become and be immediately due and payable once all other non-subordinated liabilities of the Company have been fully paid. Holders of the Subordinated Notes shall have no right to accelerate repayment of Subordinated Notes in the case of any Event of Default except in the case of an Event of Default which would constitute a Subordinated Note Event of Acceleration.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes of each Class may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
13. Trustee and Agents Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee and each Agent under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee or Agent, as the case may be.
Exhibit A-3
14. No Recourse Against Others
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company shall not have any liability for any obligations of the Company under the Notes or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
15. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
16. Abbreviations
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
18. ISIN Numbers
The Company has caused ISIN numbers to be printed on the Notes and has directed the Trustee to use ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
19. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York, provided that all issues related to the due authorization, execution, issuance and delivery of this Note by the Company, the approval of the CNV for the public offering of this Note in Argentina and all issues related to the legal requirements necessary for this Note to qualify as a "negotiable obligation" under Argentine law shall be governed by the Negotiable Obligations Law, and other applicable Argentine laws and regulations.
Exhibit A-3
20. Currency of Account Conversion of Currency
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Company under or in connection with the Notes or the Indenture, including damages. The Company will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
21. Agent for Service; Submission to Jurisdiction; Waiver of Immunities
The Company has agreed that any suit, action or proceeding against the Company brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal court in The City of New York, New York. The Company has irrevocably submitted to the non-exclusive jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Company has appointed CT Corporation System as its authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in The City of New York, New York. To the extent that the Company has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Company has irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
The Company will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture. Requests may be made to:
Banco de Galicia y Buenos Aires S.A.
Tte. Gral. Juan D. Peron 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Argentina
Attention: Dra. Matilde Hoenig
Tel. +(5411) 6 329-6000
Fax +(5411) 6 329-6429
Exhibit A-3
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's Social Security or Tax I.D. Number)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:______________________ Your Signature:_____________________
Signature Guarantee:_______________________________
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad- 15.
Exhibit A-3
[To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Principal Amount of Signature of Amount of decrease Amount of increase in this Global Note authorized signatory Date of in Principal Amount Principal Amount of following such of Trustee or Note Exchange of this Global Note this Global Note decrease or increase Custodian -------- ------------------- --------------------- -------------------- -------------------- |
EXHIBIT B
FORM OF CERTIFICATE FOR TRANSFERS TO QIBS
[Date]
The Bank of New York
101 Barclay Street, Floor 21W
New York, New York 10286
Attention: Corporate Trust Administration
Re: [Notes due 2014][Notes due 2019][Notes due 2010] (the "Notes") of Banco de Galicia y Buenos Aires S.A. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 18, 2004 (as amended and supplemented from time to time, the "Indenture"), between the Company and The Bank of New York, as Trustee. Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to them in the Indenture.
This letter relates to US$____________ aggregate principal amount of
Notes [in the case of a transfer of an interest in a Regulation S Global Note:
which represents an interest in a Regulation S Global Note beneficially owned
by] [in the case of a transfer of an AI Note: which are held in the name of] the
undersigned (the "Transferor") to effect the transfer of such Notes in exchange
for an equivalent beneficial interest in the Rule 144A Global Note.
In connection with such request, and with respect to such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with Rule 144A under the Securities Act of 1933, as amended ("Rule 144A"), to a transferee that the Transferor reasonably believes is purchasing the Notes for its own account or an account with respect to which the transferee exercises sole investment discretion, and the transferee, as well as any such account, is a "qualified institutional buyer" within the meaning of Rule 144A, in a transaction meeting the requirements of Rule 144A and in accordance with applicable securities laws of any state of the United States or any other jurisdiction.
Exhibit B
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
Exhibit C
FORM OF CERTIFICATE FOR TRANSFERS
TO ACCREDITED INVESTORS
Banco de Galicia y Buenos Aires S.A.
Tte. Gral. Juan D. Peron 407, 2 degrees Piso
C1038AAI Buenos Aires, Argentina
The Bank of New York
101 Barclay Street, Floor 21W
New York, NY 10286
Attention: Corporate Trust Administration
Re: [Notes due 2014][Notes due 2019][Notes due 2010] (the "Notes") of Banco de Galicia y Buenos Aires S.A.
Reference is hereby made to the (i) Indenture, dated as of May 18, 2004 (the "Indenture"), among Banco de Galicia y Buenos Aires S.A., an Argentine corporation (the "Company"), The Bank of New York (the "Trustee"), as Trustee, Co-Registrar, Transfer Agent and Paying Agent, and Banco Rio de la Plata S.A. (the "Registrar"), as Registrar and as Paying Agent and Transfer Agent in Argentina, as supplemented by the Side Agreement dated as of May 18, 2004 among the Company and Kredietbank S.A. Luxembourgeoise, as Transfer Agent and Paying Agent in Luxembourg and (ii) the pricing supplement, dated December 23, 2003, as supplemented by the supplement thereto, dated March 18, 2004, and the second supplement thereto, dated April 6, 2004 and the offering memorandum, dated November 5, 2003 (together, the "Offering Documents"). Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to them in the Indenture.
[IN CONNECTION WITH OUR PURCHASE OF US$________ PRINCIPAL AMOUNT OF THE
NOTES, THE NOTES SHOULD BE REGISTERED AS FOLLOWS:] [THIS CERTIFICATE IS DELIVERED TO REQUEST A TRANSFER OF US$________ PRINCIPAL AMOUNT OF THE NOTES (THE "NOTES") TO THE UNDERSIGNED (THE "TRANSFEREE"). UPON TRANSFER, THE NOTES SHOULD BE REGISTERED IN THE NAME OF THE NEW HOLDER AS FOLLOWS:]
Name: __________________________________ [If applicable, add: as nominee for the transferee]
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an "accredited investor" (as defined in Rule 501 (a) of Regulation D under the Securities Act of 1933, as amended (the "Securities Act")) purchasing for our own account an aggregate amount of not less than US$250,000 principal amount
Exhibit C
of the Notes or we are purchasing for another such "accredited investor" and each account, if any, for which we are purchasing Notes is purchasing an aggregate amount of not less than US$250,000. We are acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act, subject, nevertheless, to the understanding that the disposition of our property will at all times be and remain within our control. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of our investment in the Notes and we invest in or purchase securities similar to the Notes in the normal course of our business. We and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
2. We confirm that (a) we have received and reviewed any information we consider necessary or appropriate to make our investment decision concerning the Company and the Notes or any other matter relevant to our decision to purchase the Notes and (b) we have had an opportunity to ask executive officers of the Company such questions as we consider necessary or appropriate to make our investment decision concerning the Company and the Notes.
3. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act.
4. We understand that the offer and sale of the Notes have not been registered under the Securities Act, are being sold to us in a transaction that is exempt from the registration requirements of the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of each account for which we acquire any Notes, that (a) if at some future time, we decide to resell, pledge or otherwise transfer the Notes except to the Company, we will not do so without the Company's consent other than pursuant to the terms of this investor letter and
(i) in the United States to an "accredited investor" (as defined in Rule 501(a) of Regulation D under the Securities Act) in a minimum amount of US$250,000, and who, prior to such transfer, furnished the Trustee and the Company a signed letter substantially to the same effect as this investor letter and, if requested by the Company, an opinion of counsel, acceptable to the Company, as the case may be, that such transfer is in compliance with the Securities Act, in which case, upon the delivery of the Notes for transfer together with the letter referred to in clause (i)(A), the purchaser of such Notes may only take delivery thereof in the form of a certificated Note;
(ii) (x) in the United States to a qualified institutional
buyer ("QIB") (as defined in Rule 144A under the Securities Act), or
(y) outside the United States in a transaction meeting the
requirements of Regulation S under the Securities Act;
Exhibit C
(iii) pursuant to Rule 144 or another available exemption from registration under the Securities Act; or
(iv) pursuant to an effective registration statement under the Securities Act;
in each case, in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction and subject to the provision to the Company of documentation reasonably acceptable to the Company establishing that such sale, pledge or other transfer is exempt from the registration requirements of the Securities Act; and (b) we will be, and acknowledge that each subsequent holder will be, required to notify any purchaser of Notes of the restrictions referred to herein and in the Offering Documents and will deliver to the transferee prior to the sale a copy of the transfer restrictions applicable hereto (copies of which may be obtained from the Company) until such time as the Notes are no longer "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act.
5. We understand that, on any proposed resale of the Notes or beneficial interest therein, we will be required to furnish to you such certifications, legal opinions and other information as you may reasonably require to confirm that the proposed sale complies with the foregoing restrictions. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.
6. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts (each of which is an "accredited investor") as to each of which we exercise sole investment discretion and have authority to make and do make, the statements contained in this investor letter.
7. We understand that the Notes will be delivered to us in definitive, fully registered form only and that the certificates delivered to us in respect of the Notes will bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF BANCO DE GALICIA Y BUENOS AIRES S.A. (THE "COMPANY") THAT (A) THIS NOTE MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY TO THE COMPANY OR ANY SUBSIDIARY THEREOF OR (I) IN THE UNITED STATES TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
Exhibit C
RULE 144A, (II) IN THE UNITED STATES TO AN "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(A) OF REGULATION D UNDER THE SECURITIES ACT) IN
A MINIMUM AMOUNT OF US$250,000, AND WHO, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE AND THE COMPANY A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS NOTE (THE FORM OF WHICH MAY BE OBTAINED FROM THE COMPANY) AND,
IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO
ANY EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (V) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE AND THE COMPANY SUCH OPINIONS OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE IN FORM REASONABLY SATISFACTORY TO THE COMPANY AS PROVIDED FOR IN THE INDENTURE TO CONFIRM THAT SUCH TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS AS PROVIDED FOR IN THE INDENTURE."
We acknowledge that you and others will rely upon our confirmations, acknowledgements and agreements set forth herein, and we agreed to notify you promptly in writing if any of our representations or warranties herein cease to be accurate and complete.
You are entitled to rely upon this investor letter and are irrevocably authorized to produce this investor letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
THIS INVESTOR LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
Exhibit C
Name of [Signatory][Transferee]:
By:
Title:
Date:
Address:
EXHIBIT D
FORM OF CERTIFICATE FOR TRANSFERS
TO NON-U.S. PERSONS PURSUANT TO REGULATION S
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street, Floor 21W
New York, New York 10286
Re: [Notes due 2014][Notes due 2019][Notes due 2010] (the "Notes") of Banco de Galicia y Buenos Aires S.A. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 18, 2004 (as amended and supplemented from time to time, the "Indenture"), between the Company and The Bank of New York, as Trustee. Capitalized terms used herein but not otherwise defined herein shall have the meanings given them in the Indenture.
In connection with our proposed sale of US$________ aggregate principal amount of the Notes [in the case of a transfer of an interest in a 144A Global Note: , which represent an interest in a 144A Global Note beneficially owned by] [in the case of a transfer of an AI Note: held in the name of] the undersigned ("Transferor"), we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States or
(ii) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on
our behalf knows that the transaction has been pre-arranged with a buyer in the
United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
Exhibit D
In addition, if the sale is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this letter have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
EXHIBIT E
FORM OF RULE 144 CERTIFICATION
[Date]
The Bank of New York
Corporate Trust Administration
101 Barclay Street, Floor 21W
New York, New York 10286
Re: [Notes due 2014][Notes due 2019][Notes due 2010] (the "Notes") of Banco de Galicia y Buenos Aires S.A. (the "Company")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of May 18, 2004 (as amended and supplemented from time to time, the "Indenture"), between the Company and The Bank of New York, as Trustee. Capitalized terms used herein but not otherwise defined herein shall have the meanings given them in the Indenture.
In connection with our proposed sale of US$________ aggregate principal amount of the Notes [in the case of a transfer of an interest in a 144A Global Note: , which represent an interest in a 144A Global Note beneficially owned by] [in the case of a transfer of an AI Note: held in the name of] the undersigned ("Transferor"), we confirm that such sale has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:____________________________
EXHIBIT F
TERMS AND CONDITIONS OF THE NOTES
The following are the terms and conditions of the Notes (the "Conditions") will be applicable to each Tranche of Notes, provided that the applicable pricing supplement in relation to any Tranche of Notes may specify other Conditions that shall, to the extent so specified or to the extent inconsistent with these Conditions, replace the following Conditions for the purposes of such Tranche of Notes. The Conditions, as modified by the applicable pricing supplement, shall be attached to and incorporated by reference into each Note in global form and endorsed upon each Note in definitive form.
1. GENERAL
The creation of the Program and issue of the Notes thereunder were authorized by the shareholders meeting of the Issuer held on September 30, 2003 and will be authorized by resolutions of the Board of Directors of the Issuer on or prior to the date of issuance of the first Class of Notes. The Notes will be issued pursuant to the Fiscal and Paying Agency Agreement and, to the extent applicable, a particular Class or Tranche may be issued pursuant to a supplement to the Fiscal and Paying Agency Agreement or an indenture or other relevant document, among the Issuer, The Bank of New York, as Fiscal Agent, Co-Registrar, Transfer Agent, Principal Paying Agent, Kredietbank S.A. Luxembourgeoise, as Luxembourg Paying Agent and a Transfer Agent, respectively (the Principal Paying Agent, the Luxembourg Paying Agent and all other paying agents, including any successor or additional paying agents, are collectively referred to herein as Paying Agents), and Banco Rio de la Plata S.A., as Registrar. The Issuer will act as Paying Agent in Argentina. No Note will become valid or enforceable for any purpose unless and until such Note has been authenticated by or on behalf of the Fiscal Agent.
The terms of the Notes are those stated in the Fiscal and Paying Agency Agreement and the Notes. The following summary of the terms and conditions of the Notes and the Fiscal and Paying Agency Agreement are subject to, and qualified in their entirety by reference to, the applicable provisions of the Notes and the Fiscal and Paying Agency Agreement. Wherever particular sections, articles or defined terms of the Fiscal and Paying Agency Agreement are referred to herein, such sections, articles or defined terms shall be as specified in the Fiscal and Paying Agency Agreement. Capitalized terms not otherwise defined below or elsewhere in the Notes shall have the respective meanings given such terms in the Fiscal and Paying Agency Agreement. The holders of the Notes will be entitled to the benefits of, be bound by, and be deemed to have notice of, all of the provisions of the Fiscal and Paying Agency Agreement and the Notes. Copies of the Fiscal and Paying Agency Agreement will be available for inspection and copying during normal business hours at the offices of the Issuer, the Fiscal Agent, the Registrar, the Co-Registrar and the Paying Agents.
The Notes will be issued in Classes. Each Class may be issued in Tranches and each Tranche will be the subject of a pricing supplement prepared by or on behalf of the Issuer, a copy of which may be obtained at the offices of the Issuer and at the specified office of the Fiscal Agent and each of the Paying Agents and, in the case of a Class in relation to which application has been made for listing on the Luxembourg Stock Exchange, a copy of which will be delivered to the Luxembourg Stock Exchange and the Luxembourg Paying Agent.
The aggregate principal amount at maturity of the Notes to be issued, when added to the aggregate principal amount at maturity of all Notes outstanding (as defined in the Fiscal and Paying Agency Agreement) on the proposed Issue Date of the Notes proposed to be issued, will not exceed U.S.$2,000,000,000. For purposes of determining the aggregate principal amount at maturity of all Notes outstanding (i) the U.S. Dollar equivalent of Notes denominated in a currency other than US dollars shall be calculated as at the Issue Date of such Notes by reference to the rate of exchange that is the spot rate for the sale of US dollars against the purchase of the relevant currency in the New York foreign exchange market as quoted by any leading bank agreed to by the Issuer and the relevant Dealer(s), or if such Issue Date is not a day on which banks and foreign exchange markets are open for business in New York (a "New York Business Day"), the preceding New York Business Day (the "Exchange Rate"); (ii) the U.S. Dollar equivalent of Index Notes and Dual Currency Notes shall be calculated by reference to the Exchange Rate and the original principal amount at maturity of the relevant Notes on the Issue Date of such Notes; and (iii) the U.S. Dollar equivalent of Zero Coupon Notes and other Notes issued at a discount or premium shall be calculated by reference to the Exchange Rate and the principal amount of such Notes issued at a discount or premium on the Issue Date of such Notes.
Exhibit F
Words and expressions defined in the Fiscal and Paying Agency Agreement or
used in the applicable pricing supplement shall have the same meanings where
used in these Conditions unless the context otherwise requires or unless
otherwise stated. In these Conditions, Notes that are identical in all respects
(including as to Issue Date) shall constitute a Tranche, and any Tranche of
Notes that (i) are expressed to be consolidated and form a single series and
(ii) are identical in all respects (except for their respective Issue Dates,
Interest Commencement Dates, Maturity Dates and/or Issue Prices) shall
constitute a Class.
The pricing supplement for each Tranche of Notes will contain such of the following information as is applicable in respect of such Notes (all references to numbered Conditions being to the terms and conditions of the relevant Notes):
(i) the Class number and the Tranche number;
(ii) the date on which the Notes will be issued (the "Issue Date");
(iii) the aggregate principal amount of the Notes (the "Principal Amount") and the price (generally expressed as a percentage of the Principal Amount) at which the Notes will be issued (the "Issue Price");
(iv) the denominations of the Notes (the "Authorized Denomination(s)");
(v) the specified currency (which shall include Argentine pesos, Australian dollars, Canadian dollars, Danish kroner, euros, Hong Kong dollars, New Zealand dollars, Norwegian kroner, English pound sterling, Swedish kronor, Swiss francs, US dollars, Japanese yen or such other currency or currencies as may be agreed between the Issuer and the relevant Dealer(s)) in which the Notes will be denominated and, in the case of Dual Currency Notes (as defined below), the currency or currencies in which payment of interest and/or repayment or redemption in respect of the Notes is to be made (each a "Specified Currency");
(vi) the interest and/or payment basis (the "Interest/Payment Basis") of the Notes, which may be one or more of the following:
(a) Notes bearing interest on a fixed rate basis ("Fixed Rate Notes");
(b) Notes bearing interest on a floating rate basis ("Floating Rate Notes");
(c) Notes issued on a non-interest bearing basis ("Zero Coupon Notes");
(d) Notes in respect of which principal and/or interest is calculated by reference to an index and/or a formula ("Index Linked Notes"); or
(e) Notes in respect of which principal and/or interest is or may be payable in one or more Specified Currencies other than the Specified Currency in which they are denominated ("Dual Currency Notes");
(vii) in the case of interest-bearing Notes, the date, if other than the Issue Date, from which such Notes bear interest (the "Interest Commencement Date");
(viii) in the case of Notes other than Floating Rate Notes, the date on which such Notes (unless previously redeemed or purchased and canceled) will be redeemed (the "Maturity Date");
(ix) in the case of Floating Rate Notes, the month and year in which such Notes (unless previously redeemed or purchased and canceled) will be redeemed (the "Redemption Month");
Exhibit F
(x) the amount at which each Note will be redeemed (the "Final Redemption Amount"), generally expressed as a percentage of the Principal Amount and/or in the case of Index Linked Notes, as specified in accordance with (xv) below;
(xi) in the case of Notes redeemable in installments:
(a) the date on which each installment is payable (each an "Installment Date"); and
(b) the amount, generally expressed as a percentage of the Principal Amount, of each such installment (each an "Installment Amount");
(xii) in the case of Fixed Rate Notes:
(a) the rate, generally expressed as a percentage rate per annum, at which the Notes bear interest (the "Fixed Rate of Interest"), which may remain the same throughout the life of the Notes or increase and/or decrease;
(b) the date(s) in each year on which interest is payable throughout the life of the Notes (each a "Fixed Interest Payment Date");
(c) where the period from the Interest Commencement Date to the first Fixed Interest Payment Date differs from the period between subsequent Fixed Interest Payment Dates, the amount of the first payment of interest (the "Initial Broken Amount");
(d) where the Maturity Date is not a Fixed Interest Payment Date, the amount of the final payment of interest (the "Final Broken Amount"); and
(e) any other terms relating to the particular method of computing interest for such Notes;
(xiii) in the case of Floating Rate Notes:
(a) the number of months or other period from (and including) the
Interest Commencement Date to (but excluding) the first
Floating Interest Payment Date (as defined in Condition
5(b)(i)) and from (and including) that and each successive
Floating Interest Payment Date thereafter to (but excluding)
the next following Floating Interest Payment Date (each an
"Interest Period"), which may or may not be the same number of
months or other period throughout the life of the Notes;
(b) whether the applicable rate of interest (the "Rate of Interest") will be calculated by reference to the Screen Rate Determination pursuant to Condition 5(b)(ii) or the ISDA Rate pursuant to Condition 5(b)(iii);
(c) the reference rate (the "Reference Rate"), being a variable rate, which may be LIBOR, EURIBOR, a rate determined by reference to Argentine financial instruments or some other rate and the method of computing the variable rate of interest for such Reference Rate (the "Reference Basis") by which the Rate of Interest will be determined, in each case, if different from that set out in Condition 5(b);
(d) the margin(s) (the "Margin(s)"), if any (expressed as a percentage per annum), over or under the Reference Rate by which the Rate of Interest is determined (which Margin may remain the same throughout the life of the Notes or increase and/or decrease), specifying whether any such Margin(s) is/are to be added to, or subtracted from, the Reference Rate;
(e) the appropriate pages of the screen (if applicable) for the purpose of Condition 5(b)(ii)(E)(1);
Exhibit F
(f) the dates on which the Rate of Interest is to be determined (each an "Interest Determination Date") for the purposes of Condition 5(b)(ii)(E)(2) which, if not specified in the applicable pricing supplement, will be the second Business Day prior to the commencement of the relevant Interest Period;
(g) the Minimum Rate of Interest, if any, at which the Notes will bear interest, which may remain the same through the life of the Notes or increase and/or decrease;
(h) the Maximum Rate of Interest, if any, at which the Notes will bear interest, which may remain the same throughout the life of the Notes or increase and/or decrease;
(i) the relevant Business Day Convention (as defined in Condition
5(b)); and/or
(j) the Reference Banks (if any) designated as such for purposes of Condition 5(b);
(xiv) in the case of Zero Coupon Notes:
(a) the accrual yield in respect of such Notes (the "Accrual Yield") expressed as a percentage rate per annum;
(b) the reference price attributed to the Notes on issue (the "Reference Price"); and
(c) any other formula or basis of determining the amount payable;
(xv) in the case of Index Linked Notes:
(a) the index (the "Index") to which amounts payable in respect of principal and/or interest are linked and/or the formula (the "Formula") to be used in determining the amounts of principal and/or interest due;
(b) the party responsible for calculating the amount of principal and/or interest due (if not the Fiscal Agent) (the "Calculation Agent"); and
(c) the provisions regarding calculation of principal and/or interest in circumstances where such calculation by reference to the Index and/or the Formula is impossible and/or impracticable;
(xvi) in the case of Dual Currency Notes:
(a) the exchange rate(s) or basis of calculating the exchange rate(s) to be used in determining the amounts of principal and/or interest due (the "Rate of Exchange");
(b) the party responsible for calculating the amount of principal and/or interest due (if not the Fiscal Agent) (the "Calculation Agent");
(c) the provisions regarding calculating of principal and/or interest in circumstances where such calculation by reference to the Rate of Exchange is impossible and/or impracticable; and
(d) the person at whose option any Specified Currency or Currencies is or are to be payable;
(xvii)whether the Notes are to be redeemable at the option of the Issuer (other than for taxation reasons) and/or the holders and, if so:
(a) each date upon which redemption may occur (each an "Optional Redemption Date");
Exhibit F
(b) each redemption amount for the Notes (each an "Optional Redemption Amount") and/or the method, if any, of calculating the same; and
(c) in the case of Notes redeemable by the Issuer in part, (1) the minimum principal amount, if any, of the Notes permitted to be so redeemed at any time (the "Minimum Redemption Amount") and any greater principal amount of the Notes permitted to be so redeemed at any time (each a "Higher Redemption Amount"), if any, and (2) the method of selecting the Notes or portions thereof to be so redeemed (e.g., pro rata, by lot or as otherwise selected by the Fiscal Agent in accordance with applicable law and any applicable stock exchange regulations);
(xviii) the redemption amount (the "Early Redemption Amount") in respect of the Notes payable on redemption for taxation reasons or following an Event of Default and/or the method, if any, of calculating the same if required to be specified by, or if different from that set out in, Condition 7(g);
(xix) details of the relevant stabilizing dealer, if any;
(xx) any additional selling restrictions that are required;
(xxi) details of any other relevant terms of such Notes or special conditions and of any modifications to the Conditions of the Notes;
(xxii) applicable definition of "Business Day" if different from that set out in the Conditions;
(xxiii) as applicable, the relevant Euroclear and Clearstream, Luxembourg common code, ISIN, CINS and/or CUSIP numbers;
(xxiv) details of any additional or alternative clearance system approved by the Issuer and the Fiscal Agent and, if the relevant Notes are listed on the Luxembourg Stock Exchange or any other securities exchange (any such securities exchange being referred to herein as a "Stock Exchange"), details concerning such Stock Exchange;
(xxv) whether the Notes are convertible automatically or at the option of the Issuer and/or the holders into Notes of another Interest/Payment Basis and, if so, the date(s) upon which such conversion will occur or such option(s) may be exercised, and the Interest/Payment Basis and other relevant terms;
(xxvi) whether the Notes are to be listed on the Official List and admitted to trading by the Luxembourg Stock Exchange or listed on any other Stock Exchange;
(xxvii) whether the Notes are to be issued initially as Global Notes or Definitive Notes (as defined below);
(xxviii) the intended use of proceeds of the Notes and the net proceeds amount to be received from the issuance;
(xxix) the method of distribution of the Notes;
(xxx) the name(s) of the Dealer(s) or syndicate of Dealers that are to offer and sell the Notes to be issued;
Exhibit F
(xxxi) confirmation from the Issuer that:
(a) the Program and any previous issues under the Program listed on the same Stock Exchange are in compliance with the listing rules of the Luxembourg Stock Exchange;
(b) in respect of the Notes, the Issuer has complied with or will comply with the listing rules of the Luxembourg Stock Exchange; and
(c) the Issuer has not, since information was last published in compliance with the listing rules of the Luxembourg Stock Exchange and after making all reasonable inquiries, become aware of any change in circumstances which could reasonably be regarded as significantly and adversely affecting its ability to meet its obligations on the Notes as they fall due;
(xxxii) whether the Notes shall be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness as set forth in Section 23 of the Fiscal and Paying Agency Agreement;
(xxxiii) any other payment terms applicable to the Notes; and
(xxxiv) any other information that the Issuer and the Dealers deem necessary or advisable to include in such pricing supplement.
2. FORM, DENOMINATION AND TITLE
GENERAL
Unless otherwise permitted by applicable law and specified in the applicable pricing supplement, Notes may only be issued in registered form, without interest coupons, either (i) outside the United States in reliance on the exemption from registration provided by Regulation S or (ii) within the United States in reliance on Rule 144A or Section 4(2) of the Securities Act. Notwithstanding the foregoing and the provisions set forth below, Notes may be issued in such other form or forms as shall be established by or pursuant to the relevant authorization for a Class and permitted by applicable law. Notes may also have such additional provisions, omissions, variations or substitutions as are not inconsistent with the provisions of the Fiscal and Paying Agency Agreement or with such authorization or pricing supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as specified in the Fiscal and Paying Agency Agreement and as required to comply with any law or regulation or with the rules of any securities exchange or governmental agency or as may be determined by the Bank. All Notes of a particular Class shall be otherwise substantially identical except as to denomination and as provided in the Fiscal and Paying Agency Agreement or in the authorization or pricing supplement.
Notes may be issued in the form of one or more global registered notes in an aggregate principal amount equal to the principal amount of the Notes of such Class (a "Global Note"), which shall be exchangeable in the limited circumstances described below for Notes in the form of definitive registered notes ("Definitive Notes"); or Notes may be issued initially in the form of Definitive Notes, which shall be exchangeable in certain circumstances for beneficial interests in a Global Note.
Notes will be issued in such denominations as specified herein under "Transfer Restrictions" and in the applicable pricing supplement in compliance with the applicable Argentine Central Bank regulations, including Communique "A" 3046 and 2170, as amended. Unless otherwise specified in the applicable pricing supplement, Notes sold upon initial issuance in the United States shall be issued only in minimum denominations of US$250,000 (or the approximate equivalent thereof in a Specified Currency, rounded down to a multiple of 1,000 units of such Specified Currency) and integral multiples of US$50,000 (or 1,000 units of such Specified Currency) in excess thereof, except for Notes sold in reliance on Rule 144A under the Securities Act, which may be in minimum denominations of US$100,000 (or the approximate equivalent thereof in a Specified Currency, rounded down to a
Exhibit F
multiple of 1,000 units of such Specified Currency) and integral multiples of US$50,000 (or 1,000 units of such Specified Currency) in excess thereof.
The Registrar shall maintain the definitive record (the "Register") in which shall be recorded the names and addresses of holders of any Notes, the Note numbers and other details with respect to the issuance, transfer and exchange of the Notes. No service charge will be made for any registration of transfer or exchange of the Notes, but the Fiscal Agent, Registrar or any transfer agent may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
GLOBAL NOTES
Unless otherwise specified in the applicable pricing supplement, Notes of each Tranche of each Class sold in transactions outside the United States in reliance on Regulation S will be represented initially by interests in a Regulation S Global Note, without interest coupons, which will be deposited on or prior to the date of issue of the Tranche with the Fiscal Agent as custodian for DTC and registered in the name of Cede & Co. ("Cede"), as nominee of DTC, for the accounts of Euroclear and Clearstream, Luxembourg. On or prior to the 40th day (or such other time period as may be required under Regulation S, as amended from time to time) after the completion of the distribution (as determined by the Issuer (based solely on information certified by the relevant Dealer(s))) of a Tranche of a Class, beneficial interests in a Regulation S Global Note may be held only through Euroclear and/or Clearstream, Luxembourg.
Any reference herein to Euroclear and/or Clearstream, Luxembourg will, whenever the context so permits, be deemed to include a reference to any additional or alternative clearance system approved by the Issuer, the relevant Dealer(s) and the Fiscal Agent.
Unless otherwise specified in the applicable pricing supplement, Notes of each Tranche of each Class sold in transactions in the United States in reliance on Rule 144A will be represented by a Restricted Global Note, without interest coupons, which will be deposited on or prior to the date of issue with the Fiscal Agent as custodian for DTC and registered in the name of Cede as nominee of DTC. Restricted Global Notes will be subject to certain restrictions on transfer set forth therein and in the Fiscal and Paying Agency Agreement and will bear the legend regarding such restrictions set forth under "Transfer Restrictions."
TRANSFERS OF INTERESTS IN GLOBAL NOTES
On or prior to the date 40 days (or such other time period as may be required under Regulation S, as amended from time to time) after the completion of the distribution (as determined by the Issuer (based solely on information certified by the relevant Dealer(s))) of a Tranche represented by a Regulation S Global Note, a beneficial interest in such Regulation S Global Note may be transferred to a person who takes delivery in the form of an interest in a Restricted Global Note of the same Class of which such Tranche forms a part only upon receipt by the Fiscal Agent of a written certification from the transferor (in the form provided in the Fiscal and Paying Agency Agreement) to the effect that such transfer is being made to a person whom the transferor reasonably believes is a "qualified institutional buyer" within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction. On or after such 40th day (or such other time period as may be required under Regulation S, as amended from time to time), such certification requirement will no longer apply to such transfers and such Regulation S Global Notes will thereafter be referred to as "Unrestricted Global Notes."
Beneficial interests in a Restricted Global Note of a Class may be transferred to a person who takes delivery in the form of an interest in a Regulation S Global Note or an Unrestricted Global Note of the same Class and Tranche only upon receipt by the Fiscal Agent of a written certification from the transferor (in the applicable form provided in the Fiscal and Paying Agency Agreement) to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 under the Securities Act ("Rule 144"), and that, if such transfer occurs on or prior to such 40th day (or such other time period as may be required under Regulation S, as amended from time to time), the interest will be held immediately thereafter only through Euroclear or Clearstream, Luxembourg. See "Subscription and Sale" and "Transfer Restrictions."
Exhibit F
Any beneficial interest in a Global Note that is transferred to a person who takes delivery in the form of an interest in another Global Note of the same Class and Tranche will, upon transfer, cease to be an interest in such Global Note and become an interest in the other Global Note and, accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to a beneficial interest in such other Global Note for as long as it remains such an interest.
Transfer by a holder (as such term is used and defined in "Terms and Conditions of the Notes") of an interest in a Global Note to a transferee who wishes to take delivery of such interest through the same Global Note may be made at any time without certification, subject to applicable transfer restrictions.
Transfers of interests in a Global Note within DTC, Euroclear and Clearstream, Luxembourg will be in accordance with the rules and procedures of the relevant system.
OWNERSHIP OF GLOBAL NOTES AND PAYMENTS
For as long as DTC, or its nominee, is the registered owner or holder of a Global Note, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the Notes represented by such Note for all purposes under the Fiscal and Paying Agency Agreement and the Notes. Payments of principal of and interest (including Additional Amounts, if any (as defined in and pursuant to Condition 9)) on Global Notes will be made to DTC, or Cede as its nominee, as the registered owner thereof. In addition, no beneficial owner of an interest in a Global Note will be able to transfer that interest except in accordance with DTC's applicable procedures (and, if applicable, those of Euroclear and Clearstream, Luxembourg). None of the Issuer, the Fiscal Agent or any Paying Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership of interests in such Notes or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
CLEARING AND SETTLEMENT FOR BOOK-ENTRY OWNERSHIP
The Issuer and the Fiscal Agent will make applications to DTC for acceptance in its book-entry settlement system of the Notes represented by the Global Notes. The Issuer also will make application to Euroclear and Clearstream, Luxembourg for acceptance in their respective book-entry systems in respect of the Notes represented by the Regulation S Global Notes. Each Global Note will have, as applicable, a different common code, ISIN, CINS and/or CUSIP number. Furthermore, pursuant to the Fiscal and Paying Agency Agreement, the Fiscal Agent shall arrange that, where a further Tranche of Notes is issued, the Notes of such Tranche will be assigned, as applicable, a common code, ISIN, CINS and/or CUSIP number that is or are different from the common code, ISIN, CINS and/or CUSIP number assigned to the Notes of any other Tranche of the same Class until at least the date 40 days (or such other time period as may be required under Regulation S, as amended from time to time) after the completion of the distribution (as determined by the Issuer (based solely on information certified by the relevant Dealer(s))) of the Notes of such Tranche.
Until the date 40 days (or such other time period as may be required under Regulation S, as amended from time to time) after the completion of the distribution (as determined by the Issuer (based solely on information certified by the relevant Dealer(s))) of a Tranche represented by a Regulation S Global Note, investors may hold their interests in such Regulation S Global Note only through agent members of Euroclear and/or Clearstream, Luxembourg. Thereafter, investors having a beneficial interest in such Regulation S Global Note may hold such interests through DTC, Euroclear or Clearstream, Luxembourg if they are participants in such systems, or indirectly through organizations that are participants in such systems. Euroclear and Clearstream, Luxembourg will hold interests in the relevant Regulation S Global Note on behalf of their participants through customers' securities accounts in Euroclear's or Clearstream, Luxembourg's respective names on the books of the respective depositaries, which in turn will hold such interests in the relevant Regulation S Global Note in customers' securities accounts in the depositaries' names on the books of DTC. Beneficial owners will not receive certificates representing their ownership interests in Global Notes, except in the event that the use of the book-entry system for Global Notes is discontinued or the Issuer determines that the Global Note with respect to any Class of Notes shall be exchanged in full for definitive registered Notes or an Event of Default (as defined in Condition 11) shall occur and be continuing.
Exhibit F
Upon issuance of the relevant Global Note, DTC or its custodian will credit, on its internal system, the respective principal amounts of the individual beneficial interests represented by such Global Note to the accounts of persons who have accounts with DTC ("DTC Participants"). Ownership of beneficial interests in a Global Note will be limited to DTC Participants and persons who hold interests through DTC Participants. Ownership of beneficial interests in Global Notes will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominee and the records of DTC Participants.
Payments of the principal of, and interest on, each Global Note registered in the name of DTC or its nominee will be to or to the order of its nominee, Cede, as the registered owner of such Global Note. The Issuer expects that the nominee, upon receipt of any such payment, will immediately credit DTC Participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of the relevant Global Note as shown on the records of DTC or the nominee. The Issuer also expects that payments by DTC Participants to owners of beneficial interests in such Global Note held through such DTC Participants will be governed by standing instructions and customary practices, as is now the case with securities registered in "street name" for the accounts of customers. Such payments will be the responsibility of such DTC Participants. None of the Issuer, the Fiscal Agent, the Registrar, the Co-Registrar, any Transfer Agent or any Paying Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of ownership interests in Global Notes or for maintaining, supervising or reviewing any records relating to such ownership interests.
TRANSFERS OF INTERESTS IN NOTES BETWEEN CLEARING SYSTEMS
Transfers of interests in Global Notes within DTC, Euroclear and Clearstream, Luxembourg will be in accordance with the usual rules and operating procedures of the relevant system. The laws of some states in the United States require that certain persons take delivery of securities in definitive form. Consequently, the ability to transfer interests in a Global Note to such persons may be limited. Because DTC can only act on behalf of DTC Participants, who in turn act on behalf of indirect participants and certain banks, the ability of a person having an interest in a Global Note to pledge such interests to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interest, may be affected by the lack of a physical certificate of such interest.
Subject to compliance with the transfer restrictions applicable to the Notes described above and under "Transfer Restrictions," cross-market transfers between DTC, on the one hand, and directly or indirectly through Euroclear or Clearstream, Luxembourg participants, on the other, will be effected in DTC in accordance with the rules and procedures of DTC on behalf of Euroclear or Clearstream, Luxembourg, as the case may be, by their respective depositaries. However, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, Luxembourg, as the case may be, by the counterparty in such system in accordance with its rules and procedures and within its established deadlines. Euroclear or Clearstream, Luxembourg, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear and Clearstream, Luxembourg participants may not deliver instructions directly to the depositaries for Euroclear or Clearstream, Luxembourg.
Because of time-zone differences, credits of securities received in Euroclear or Clearstream, Luxembourg as a result of a transaction with a DTC Participant will be made during the securities settlement processing day dated the business day following the DTC settlement date and such credits of any transactions in such securities settled during such processing will be reported to the relevant Euroclear or Clearstream, Luxembourg participant on such business day. Cash received in Euroclear or Clearstream, Luxembourg as a result of sales of securities by or through a Euroclear participant or a Clearstream, Luxembourg participant to a DTC Participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream, Luxembourg cash account only as of the business day following settlement in DTC.
OTHER INFORMATION CONCERNING DTC, EUROCLEAR AND CLEARSTREAM, LUXEMBOURG
DTC has advised the Issuer that it will take any action permitted to be taken by a holder (including, without limitation, the presentation of Global Notes for exchange as described below) only at the direction of one or more
Exhibit F
DTC Participants in whose account with DTC interests in the relevant Global Note are credited and only in respect of such portion of the aggregate principal amount of such Global Note as to which such DTC Participant or Participants has or have given such direction. However, in the circumstances described under "Exchanges of Interests in Global Notes for Definitive Notes; Transfers of Definitive Notes," DTC will surrender the relevant Global Note for exchange for Definitive Notes (which will, in the case of Restricted Global Notes, bear the legends applicable to transfers pursuant to Rule 144A).
DTC has advised the Issuer as follows: (i) DTC is a limited-purpose trust company organized under the law of the State of New York, a "banking organization" within the meaning of the New York Banking Law, a member of the U.S. Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act; (ii) DTC holds securities that its participants deposit with DTC and facilitates the settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of certificates; (iii) participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations; (iv) indirect access to the DTC system is available to others, such as banks, brokers, dealers and trust companies, that clear through or maintain a custodial relationship with a DTC Participant, either directly or indirectly; and (v) the rules applicable to DTC and its participants are on file with the U.S. Securities and Exchange Commission.
Although DTC, Euroclear and Clearstream, Luxembourg have agreed to certain procedures, including the procedures discussed above, in order to facilitate transfers of beneficial interests in the Global Notes among participants of DTC, Euroclear and Clearstream, Luxembourg, they are under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued after reasonable notice. Neither the Issuer nor any Paying Agent will have any responsibility for the performance by DTC, Euroclear or Clearstream, Luxembourg, or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
Definitive Notes will not be eligible for clearing or settlement through DTC, Euroclear or Clearstream, Luxembourg.
FOREIGN CURRENCY DENOMINATED NOTES
The Notes may be denominated in US dollars or in one or more Specified Currencies. Purchasers of Notes denominated in a Specified Currency are required to pay for such Notes in the Specified Currency. The Issuer's obligation on Notes denominated in a Specified Currency is to make payment of principal of and interest on such Notes in such Specified Currency. For a discussion of the methods of payment with respect to Notes denominated in a Specified Currency, see "6. Currency of Notes" below.
3. ISSUANCE OF DEFINITIVE NOTES; TRANSFER OF NOTES
Notes initially sold in the United States to institutional accredited investors will be issued in fully registered definitive form (a "Definitive Note"), without coupons in amounts of US$250,000 (or the approximate equivalent thereof in a Specified Currency, rounded down to a multiple of 1,000 units of such Specified Currency) and integral multiples of US$50,000 (or 1,000 units of such Specified Currency) in excess thereof. In addition, if (i) DTC notifies the Issuer that it is unwilling or unable to continue as a depositary or at any time ceases to be a "clearing agency" registered under the United States Securities Exchange Act of 1934, as amended (the "Exchange Act"), and a successor depositary so registered is not appointed by the Issuer within 90 days of such notice, (ii) the Issuer determines that the Global Note shall be exchanged for Notes in definitive registered form or (iii) an Event of Default (as defined in Condition 11) shall occur and be continuing, interests in Global Notes will be issued as Definitive Notes. A Definitive Note will be issued to each holder in respect of its registered holding or holdings of Notes.
In such circumstances, the Issuer will cause sufficient Definitive Notes to be executed and delivered to the Fiscal Agent for completion, authentication and dispatch to the relevant holders. Such Definitive Notes will be completed in such authorized denominations, registered in such names and delivered to such persons as DTC shall
Exhibit F
direct in writing. Definitive Notes issued in exchange for a Restricted Global Note shall bear, and be subject to, the legend referred to under "Transfer Restrictions."
A Definitive Note may be transferred in whole or in part in an authorized denomination upon the surrender of the Note, together with the form of transfer endorsed on it duly completed and executed, at the specified office of the Co-Registrar or any Transfer Agent, subject to certification requirements set forth in the Fiscal and Paying Agency Agreement. Upon the transfer, exchange or replacement of any Definitive Note which bears an appropriate legend, the Issuer will deliver only Definitive Notes that bear such a legend, or will refuse to remove such legend, as the case may be, unless there is delivered to the Issuer and the Fiscal Agent such satisfactory evidence, which may include an Opinion of Counsel, as may reasonably be required by the Issuer that neither such legend nor the restrictions on transfer set forth therein are required to ensure compliance with the provisions of the Securities Act. In the case of a transfer of only part of a Definitive Note, a new Definitive Note in respect of the balance not transferred will be issued to the transferor. Each new Definitive Note to be issued upon transfer of Notes will, within ten Business Days (as defined) of receipt of such form of transfer by the Co-Registrar with the Note to be so transferred, be delivered to the transferee at the office of the Co-Registrar or any Transfer Agent or mailed at the risk of the holder entitled to the Note in respect of which the relevant Definitive Note is issued to such address as may be specified in such form of transfer.
Transfers of Notes will be effected without charge by or on behalf of the Issuer, the Fiscal Agent, the Registrar, the Co-Registrar or the Transfer Agents, but upon payment (or the giving of such indemnity as the Fiscal Agent, the Registrar, the Co-Registrar or the relevant Transfer Agent may require) in respect of any tax or other governmental charges that may be imposed in relation to it. All transfers and exchanges of Notes will be made subject to the provisions concerning transfer and exchanges of Notes set forth in the Fiscal and Paying Agency Agreement. At the option of a holder on written request and subject to applicable laws and regulations, Definitive Notes of a Class may be exchanged for Definitive Notes of the same Class of any authorized denominations and of equal aggregate principal amount upon surrender to the Co-Registrar or any Transfer Agent of the relevant Notes with the form of transfer endorsed thereon duly executed.
No holder may require the exchange of interests in a Global Note for a Definitive Note or the transfer of a Note to be registered during the period commencing on the 15th day prior to the due date for any payment of principal or interest on that Note and ending on such due date (such 15th day being the "Record Date"). Unless otherwise specified in the applicable pricing supplement, the first payment of interest on any Note of a Tranche issued between a Record Date and the Due Date for any payment of interest will be made on the Payment Date next succeeding the Payment Date related to such Record Date.
4. STATUS OF THE NOTES
Except as provided in the next succeeding sentence and unless otherwise stated in the pricing supplement, the Notes will constitute (subject to the negative pledge provision described herein) direct, unsecured and unconditional obligations of the Issuer and will rank pari passu without any preference among themselves. In the case of Subordinated Notes, the Issuer will ensure that its obligations under each Subordinated Note will at all times constitute general, direct, unsecured and subordinated obligations of the Issuer and subject in right to the prior payment of all Senior Indebtedness to the extent provided in the Fiscal and Paying Agency Agreement. The Notes will constitute obligaciones negociables under the Negotiable Obligations Law, and are entitled to the benefits set forth therein and are subject to the procedural requirements thereof. In particular, in the event of a default by the Issuer in the payment of any amount due under any Note, the holder of such Note will be entitled upon the receipt by such Holder of a Definitive Note or the certificate issued by the applicable clearing system in accordance with the provisions of Decree No. 677/01, to take summary judicial proceedings (accion ejecutiva) to recover the payment of any such amount.
Pursuant to the provisions of Decree No. 677/01, certificates may be issued by the applicable clearing system in accordance with such Decree to represent an interest in a Global Note in the name of whoever holds an interest therein, so that the holder can file legal or arbitration proceedings, as the case may be, including summary judicial proceedings if applicable, submit proof of claims and participate in bankruptcy proceedings, for which purpose such certificate shall be sufficient evidence, without any further authentications or actions. Issuance of any such certificate shall cause the relevant account to be blocked, only for the purpose of recording acts of disposition
Exhibit F
by the holder, for a term of 30 days, unless the holder shall return the certificate or an order shall be received from the court or arbitration tribunal where the certificate was submitted, ordering an extension of the time during which the account should be blocked. Certificates will bear a legend describing these limitations. Blocking of the account shall only affect the securities evidenced by the certificate in question. Certificates shall be issued by the manager of the deposit system where the relevant Global Note is recorded.
Certificates representing an interest in a Global Note may be issued in favor of the relevant holder, so that holders may attend meetings of holders of Notes and exercise their voting rights. Issuance of any such certificate shall cause the relevant account to be blocked until the day immediately following the day when the meeting is held. If the meeting is adjourned or held on a different day or time, new certificates shall be issued in the name of the persons authorized through the original certificates.
The payment obligations of the Issuer under the Notes (other than Subordinated Notes) will, except as is or may be provided by Argentine or United States law, at all times rank at least equally in priority of payment with all other present and future unsecured and unsubordinated obligations of the Issuer from time to time outstanding. Under Argentine law, depositors in the Issuer have certain priority rights over all other unsecured creditors (including holders and beneficial owners of the Notes) to the extent described below.
According to section 49 e) of the Financial Institutions Law, as amended by Law No. 25,780 dated September 8, 2003, in case of judicial liquidation or bankruptcy of a financial entity, holders of deposits in pesos and foreign currency benefit from a general priority right to obtain repayment of their deposits up to the amount set forth below, with priority rank over all other creditors, with the exception of the following credits: (i) credits secured by mortgage or pledge, (ii) credits from rediscounts and overdrafts granted to financial entities by the Argentine Central Bank, according to section 17 subsections b), c) and f) of the Argentine Central Bank Charter, (iii) credits granted by the Banking Liquidity Fund created by Decree No. 32 of December 26, 2001, secured by mortgage or pledge and (iv) certain labor credits, including accrued interest until its total cancellation. Pursuant to section 16 of Law No. 25,780 during the term of emergency set forth under the Public Emergency Law No. 25,561 the Argentine Central Bank can grant rediscounts and overdrafts to financial entities with liquidity and solvency problems, included those entities under a restructuring process as contemplated in section 35 bis of the Financial Institutions Law.
The holders of the following deposits are entitled to the general preferential right established by the Financial Institutions Law (following this order of preference),
(i) deposits of individuals or legal entities up to Ps.50,000 or the equivalent thereof in foreign currency, enjoying this preference only one person per deposit. For the determination of this preference, all deposits of the same person registered by the entity shall be computed;
(ii) deposits in excess of Ps.50,000 or the equivalent thereof in foreign currency, referred to above;
(iii) liabilities originated on commercial credit lines granted to the financial entity, which are directly in connection with international trade.
According to the Financial Institutions Law, the preferences set forth in previous paragraphs (i) and (ii) above, are not applicable to deposits held by persons who are affiliates of the financial entity, either directly or indirectly, as determined by procedures that the Argentine Central Bank will establish in the future.
In addition, under section 53 of the Financial Institutions Law, the Argentine Central Bank has an absolute priority right over all other creditors of the entity except for the ones mentioned above.
The Notes are not entitled to a lien on any of the assets of the Issuer ("garantia flotante" or "especial" as defined under Argentine law) nor are they secured by any other means guaranteed by any other financial institution.
Exhibit F
The Notes are excluded from the deposit insurance system established by Law No. 24,485. Additionally, the Notes have no general priority right of payment in the case of bankruptcy or liquidation of the Issuer as the provisions of section 49(e) of the Financial Institutions Law are not applicable to the Notes.
5. INTEREST
(a) INTEREST ON FIXED RATE NOTES
(i) Each Fixed Rate Note bears interest from and including the Issue Date or the Interest Commencement Date, if different from the Issue Date, at the Fixed Interest Rate(s) per annum specified in the applicable pricing supplement, payable in arrears on the Fixed Interest Payment Date(s) in each year and on the Maturity Date so specified if such Maturity Date does not fall on a Fixed Interest Payment Date. If any Fixed Interest Payment Date (or Maturity Date upon which a payment of interest is due) would otherwise fall on a day that is not a Business Day (as defined), the interest otherwise payable on such day shall be paid on the Business Day immediately following such day and no additional interest shall accrue as a result of such postponement of payment. The first payment of interest will be made on the Fixed Interest Payment Date immediately following the Issue Date or the Interest Commencement Date, as the case may be, and, if the first anniversary of the Issue Date or the Interest Commencement Date, as the case may be, is not a Fixed Interest Payment Date, will be in an amount equal to the Initial Broken Amount specified in the applicable pricing supplement. If the Maturity Date is not a Fixed Interest Payment Date, interest from and including the preceding Fixed Interest Payment Date (or the Interest Commencement Date, as the case may be) to but excluding the Maturity Date will amount to the Final Broken Amount specified in the applicable pricing supplement.
(ii) Interest shall be computed on the basis of a 360-day year consisting of 12 months of 30 days each (or such other basis as may be specified in the applicable pricing supplement) and, in the case of an incomplete month, the number of days elapsed.
(b) INTEREST ON FLOATING RATE NOTES
(i) Floating Interest Payment Date. Each Floating Rate Note bears interest from the Issue Date or the Interest Commencement Date, if different from the Issue Date, and such interest will be payable on each interest payment date (each, a "Floating Interest Payment Date"), or if no Floating Interest Payment Date(s) is/are specified in the applicable pricing supplement, on each date that (except as otherwise mentioned in these Conditions) falls the number of months (or such period(s) specified as the Interest Period(s) in the applicable pricing supplement) after the preceding Floating Interest Payment Date or, in the case of the first Floating Interest Payment Date, after the Issue Date or the Interest Commencement Date, as the case may be. Interest will be reset monthly, quarterly, semi-annually, annually or with such other frequency, so specified in the applicable pricing supplement. If any Floating Interest Payment Date (or other date) which is specified in the applicable pricing supplement to be subject to adjustment in accordance with a business day convention would otherwise fall on a day that is not a Business Day, then, if the business day convention specified is (each a "Business Day Convention"):
(1) in any case where Interest Periods are specified in accordance with Condition 3(b)(i) above, "the floating rate convention," such Floating Interest Payment Date (or other date) shall be postponed to the next day which is a Business Day (and interest will accrue to but excluding such Business Day) unless it would thereby fall into the next calendar month, in which event A) such Floating Interest Payment Date (or other date) shall be brought forward to the immediately preceding Business Day and, (B) each subsequent Floating Interest Payment Date (or other date) shall be the last Business Day in the month which falls the number of months or other period specified as the Interest Period in the applicable pricing supplement after the preceding applicable Floating Interest Payment Date (or other date) occurred; or
(2) "the following business day convention," such Floating Interest Payment Date (or other date) shall be postponed to the next day which is a Business Day; or
(3) "the modified following business day convention," such Floating Interest Payment Date (or other date) shall be postponed to the next day which is a Business Day unless it would thereby fall into
Exhibit F
the next calendar month, in which event such Floating Interest Payment Date (or other such date) shall be brought forward to the immediately preceding Business Day; or
(4) "the preceding business day convention," such Floating Interest Payment Date (or other date) shall be brought forward to the immediately preceding Business Day.
In this Condition 5, "Business Day" means (unless otherwise provided in the applicable pricing supplement) a day which is:
(A) a day (other than a Saturday or a Sunday) on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in London, Luxembourg and New York; and
(B) either (1) in relation to Notes denominated or payable in a Specified Currency other than euros, a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in the principal financial center of the country of the relevant Specified Currency (if other than London) or (2) in relation to Notes denominated or payable in euros, a day on which the Target System (as defined below) is open. "Target System" means the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System or any successor thereto. Unless otherwise provided in the applicable pricing supplement, the principal financial center of any country for the purpose of these Terms and Conditions shall be as provided in the 2000 ISDA Definitions and the Annex to the 2000 ISDA Definitions (June 2000 Version), each as published by the International Swaps and Derivatives Association, Inc. ("ISDA"), and as amended, updated or replaced as of the Issue Date of the first Tranche of Notes of the relevant Class (the "ISDA Definitions"), except that the principal financial center of Australia shall be Melbourne and Sydney, the principal financial center of Canada shall be Toronto and the principal financial center of New Zealand shall be Wellington.
(ii) Screen Rate Determination. Where Screen Rate Determination is specified in the applicable pricing supplement, the rate of interest (the "Rate of Interest") payable from time to time in respect of the relevant Tranche of Floating Rate Notes denominated in any currency (the "Specified Currency") will be determined on the basis of the following provisions:
(A) The Rate of Interest for each Interest Period shall, subject as provided below, be:
(1) the rate, or
(2) if at least two rates appear, the arithmetic mean (rounded, if
necessary, to the nearest fourth decimal place (0.00005 being rounded
upwards)) of the offered rates, for deposits in the Specified Currency for
a period equal to the Interest Period that appears or appear, as the case
may be, on the appropriate page of the screen (as defined) as at 11:00
a.m. London time, in the case of LIBOR, or 11:00 a.m. Brussels time, in
the case of EURIBOR, on the relevant Interest Determination Date (as
defined) plus or minus (as appropriate) the Margin, if any, all as
determined by the Fiscal Agent.
(B) If, on any Interest Determination Date, no such offered rate
appears, or, in the case of a screen that normally displays at least two
rates for any relevant period, fewer than two of such offered rates appear
at such time or if the offered rate or rates which appears or appear, as
the case may be, as at such time do not apply to a period equal to the
relevant Interest Period, the Rate of Interest for such Interest Period
shall, subject as provided below, be the arithmetic mean (rounded, if
necessary, to the nearest fourth decimal place (0.00005 being rounded
upwards)) of the rates for deposits in the Specified Currency for a period
equal to such Interest Period of which the Fiscal Agent is advised by, if
the Reference Rate is LIBOR, the London offices or, if the Reference Rate
is EURIBOR, the principal Euro-zone (as defined below) offices, of all
Reference Banks (as defined herein), if the Reference Rate is LIBOR, as at
11:00 a.m. London time, or, if the Reference Rate is EURIBOR, as at 11:00
a.m. Brussels time, on the Interest
Exhibit F
Determination Date plus or minus (as appropriate) the Margin, if any, all as determined by the Fiscal Agent.
(C) If on any such Interest Determination Date to which subparagraph (B) above applies, two or three of the Reference Banks advise the Fiscal Agent of such rates, the Rate of Interest for the next Interest Period shall, subject as provided below, be determined as in subparagraph (B) above on the basis of the rates of those Reference Banks advising such rates.
(D) If on any such Interest Determination Date to which subparagraph (B) above applies only one or none of the Reference Banks advises the Fiscal Agent of such rates, the Rate of Interest for the next Interest Period shall, subject as provided below, be the Reserve Interest Rate. The "Reserve Interest Rate" shall be the rate per annum that the Fiscal Agent determines to be either (x) the arithmetic mean (rounded, if necessary, to the nearest fourth decimal place (0.00005 being rounded upwards)) of the lending rates for the Specified Currency that banks selected by the Fiscal Agent in the principal financial center of the country of the Specified Currency or, in the case of Notes payable in euros, in the Euro-zone, are quoting on the relevant Interest Determination Date for the next Interest Period to the Reference Banks or those of them (being at least two in number) to which such quotations are, in the opinion of the Fiscal Agent, being so made plus or minus (as appropriate) the Margin, if any, or (y) in the event that the Fiscal Agent can determine no such arithmetic mean, the lowest lending rate for the Specified Currency that banks selected by the Fiscal Agent in the principal financial center of the country of the Specified Currency or, in the case of Notes payable in euros, in the Euro-zone, are quoting on such Interest Determination Date to leading European banks for the next Interest Period plus or minus (as appropriate) the Margin, if any; provided that if the banks selected as aforesaid by the Fiscal Agent are not quoting as mentioned above, the Rate of Interest shall be the Rate of Interest in effect for the last preceding Interest Period to which subparagraphs (A), (B) and (C) above shall have applied (minus or plus (as appropriate), where a different Margin is to be applied to the next Interest Period from that which applied to the last preceding Interest Period, the Margin relating to that last preceding Interest Period, plus or minus (as appropriate) the Margin for the next Interest Period).
(E) (1) The expression "the appropriate page of the screen" means such page, whatever its designation, on which if the Reference Rate is LIBOR, London interbank offered rates or, if the Reference Rate is EURIBOR, the Euro-zone interbank offered rates, in each case for deposits in the Specified Currency offered by prime banks are for the time being displayed on the Reuters Monitor Money Rates Service or Telerate, or any successor service or such other service, as specified in the applicable pricing supplement.
(2) Unless otherwise specified in the applicable pricing supplement, the expression "the Interest Determination Date" means (x) other than in the case of Condition 5(b)(ii)(D), with respect to Notes denominated in any Specified Currency other than English pound sterling, the second Banking Day in London prior to the commencement of the relevant Interest Period and, in the case of Condition 5(b)(ii)(D), the second Banking Day in the principal financial center of the country of the Specified Currency prior to the commencement of the relevant Interest Period and (y) with respect to Notes denominated in English pound sterling, the first Banking Day in London of the relevant Interest Period.
(3) The expression "Banking Day" means, in respect of any place, any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in that place or, as the case may be, as indicated in the applicable pricing supplement.
(4) The expression "Euro-zone" means the region comprised of member states of the European Union that adopt the single currency in accordance with the Treaty establishing the European Community, as amended by the Treaty on European Union.
(iii) ISDA Determination. Where ISDA Determination is specified in the applicable pricing supplement, the Rate of Interest payable for the relevant Tranche of Floating Rate Notes for each Interest Period will be the relevant rate (the "ISDA Rate") determined on the same basis as the floating rate under a notional interest rate swap transaction in the relevant Specified Currency governed by an agreement incorporating the ISDA Definitions
Exhibit F
as published by the ISDA plus or minus (as appropriate) the Margin, if any, as determined by the Fiscal Agent. The ISDA Rate shall be determined by the Fiscal Agent in accordance with the following provisions:
(x) On the second Market Day or such other day that is the convention for a Specified Currency prior to the Issue Date (an "ISDA Rate Determination Date"), the Fiscal Agent will determine the ISDA Rate by reference to the Floating Rate (as defined in the ISDA Definitions) in accordance with clause (y) below.
(y) The ISDA Rate will be the equivalent of the rate determined if the Issuer had entered into an interest rate swap transaction governed by an agreement in the form of the Interest Rate and Currency Exchange Agreement (an "ISDA Agreement") published by ISDA and evidenced by a Confirmation (as defined in the ISDA Agreement) incorporating the ISDA Definitions with the holder of the relevant Note under which:
(a) the Issuer was the Floating Rate Payer;
(b) the Fiscal Agent was the Calculation Agent;
(c) the Issue Date or the Interest Commencement Date was the Effective Date;
(d) the aggregate principal amount of the Notes of the Tranche of which such Note is a part was the Notional Amount;
(e) the applicable Interest Period for such Note was the Designated Maturity;
(f) the Floating Interest Payment Dates for such Note were the Floating Rate Payer Payment Dates; and
(g) all other items were as specified in the applicable pricing supplement.
For purposes of this Condition 5(b)(iii), "Floating Rate Payer," "Calculation Agent," "Effective Date," "Notional Amount," Designated Maturity," "Floating Rate Payer Payment Dates" and "Market Day" have the meanings given to those terms in the ISDA Definitions, and the definition of "Banking Day" in the ISDA Definitions shall be deemed to have been amended by the addition of the word "general" after the words "are open for" in the second line thereof.
(iv) Determination of Rate of Interest and Computation of Interest Amount. The Fiscal Agent will, as soon as practicable after, if the Reference Rate is LIBOR, 11:00 a.m. London time or, if the Reference Rate is EURIBOR, 11:00 a.m. Brussels time (or, if appropriate, such other time as is customary in the principal financial center of the country of the Specified Currency) on each Interest Determination Date, determine the Rate of Interest and compute the amount of interest payable in respect of each Authorized Denomination (each, an "Interest Amount") for the relevant Interest Period. Each Interest Amount shall be computed by applying the Rate of Interest to an Authorized Denomination, multiplying such sum by the applicable Floating Day Count Fraction (as defined below), and rounding the resultant figure to the nearest sub-unit of the relevant Specified Currency, half of any such sub-unit being rounded upwards or otherwise in accordance with applicable market convention.
"Floating Day Count Fraction" means, in respect of the calculation of an amount of interest for any Interest Period:
(1) if "Actual/365" or "Actual/Actual" is specified in the applicable pricing supplement, the actual number of days in the Interest Period divided by 365 (or, if any portion of that Interest Period falls in a leap year, the sum of (A) the actual number of days in that portion of the Interest Period falling in a leap year divided by 366 and (B) the actual number of days in that portion of the Interest Period falling in a non-leap year divided by 365);
Exhibit F
(2) if "Actual/365 (Fixed)" is specified in the applicable pricing supplement, the actual number of days in the Interest Period divided by 365;
(3) if "Actual/360" is specified in the applicable pricing supplement, the actual number of days in the Interest Period divided by 360;
(4) if "30/360", "360/360" or "Bond Basis" is specified in the applicable pricing supplement, the number of days in the Interest Period divided by 360 (the number of days to be calculated on the basis of a year of 360 days with 12 30-day months (unless (a) the last day of the Interest Period is the 31st day of a month but the first day of the Interest Period is a day other than the 30th or 31st day of a month, in which case the month that includes that last day shall not be considered to be shortened to a 30-day month, or (b) the last day of the Interest Period is the last day of the month of February, in which case the month of February shall not be considered to be lengthened to a 30-day month)); and
(5) If "30E/360" or "Eurobond Basis" is specified in the applicable
pricing supplement, the number of days in the Interest Period divided by
360 (the number of days to be calculated on the basis of a year of 360
days with 12 30-day months, without regard to the date of the first day or
last day of the Interest Period unless, in the case of an Interest Period
ending on the Maturity Date, the Maturity Date is the last day of the
month of February, in which case the month of February shall not be
considered to be lengthened to a 30-day month).
The determination of the Rate of Interest and computation of each Interest Amount by the Fiscal Agent shall (in the absence of manifest error) be final and binding upon all parties.
(v) Minimum Interest Rate and Maximum Interest Rate. If the applicable pricing supplement specifies a Minimum Interest Rate, then the Rate of Interest shall in no event be less than such minimum, and if a Maximum Interest Rate is specified, then the Rate of Interest shall in no event exceed such maximum.
(vi) Notification of Rate of Interest and Interest Amount. The Fiscal Agent will cause the Rate of Interest and the Interest Amount for each Interest Period and the relevant Floating Interest Payment Date to be notified to the Issuer and to the relevant stock exchange (in the case of Notes listed on a stock exchange), and to be notified to the holder and published in accordance with the provisions of Condition 16, as soon as possible but in any event not later than the fourth London Business Day after their determination. Each Interest Amount and the Floating Interest Payment Date so notified may subsequently be amended (or appropriate alternative arrangements made by way of adjustment) without publication as aforesaid in the event of an extension or shortening of the Interest Period. Any such amendment will be promptly notified by the Fiscal Agent to the relevant stock exchange. For the purposes of this subparagraph (vi) and Condition 6(d), the expression "London Business Day" means a day (other than a Saturday or a Sunday) on which banks and foreign exchange markets settle payments in London.
(vii) Reference Banks. The initial Reference Banks (four or more) will be the banks specified in the applicable pricing supplement. The Issuer reserves the right to change any of the Reference Banks. The Issuer has agreed that, as long as any Floating Rate Note remains outstanding, in the event that any bank is unable or unwilling to continue to act as a Reference Bank or the designation of a Reference Bank is terminated, the Issuer shall designate some other prime bank engaged in transactions in the Eurodollar market to act as such in its place.
(c) ZERO COUPON NOTES
Where a Zero Coupon Note becomes due and payable prior to the Maturity Date, the amount due and payable shall be the Amortized Face Amount of such Note as determined in accordance with the provisions of Condition 7(h)(iii). Any outstanding principal amount of such Note not paid when due shall bear interest from the Maturity Date at a rate per annum equal to the Accrual Yield set forth in the applicable pricing supplement. Such interest shall continue to accrue (to the extent permitted by applicable law as well after as before judgment) until the earlier of (i) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the holder of such Note, and (ii) the day on which the Fiscal Agent has notified the holder thereof (either in accordance with the provisions of Condition 16 or individually) of receipt of all sums due in respect thereof up to that date.
Exhibit F
(d) INDEX NOTES AND DUAL CURRENCY NOTES
In the case of Index Notes or Dual Currency Notes, if the Rate of Interest or amount of interest or payment in respect of principal (at maturity or otherwise) is to be determined by reference to an index and/or formula or, as the case may be, an exchange rate, the Rate of Interest or amount of interest or payment in respect of principal (at maturity or otherwise) payable shall be determined by the Calculation Agent specified in the applicable pricing supplement in the manner specified in the applicable pricing supplement.
(e) ACCRUAL OF INTEREST
Interest will be paid subject to and in accordance with the provisions of Condition 8. Interest will cease to accrue on each Note (or, in the case of the redemption of only part of a Note, that part of such Note) on the due date for redemption thereof unless, upon due presentation thereof, payment of principal is improperly withheld or refused, in which event interest will continue to accrue (to the extent permitted by law as well after as before any judgment) until whichever is the earlier of (a) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the holder of such Note, and (b) the day on which the Fiscal Agent has notified the holder thereof (either in accordance with the provisions of Condition 16 or individually) of receipt of all sums due in respect thereof up to that date.
6. CURRENCY OF NOTES
(a) GENERAL
Notes may be denominated in any currency including, without limitation, Argentine pesos, Australian dollars, Canadian dollars, Danish kroner, euros, Hong Kong dollars, New Zealand dollars, Norwegian kroner, English pound sterling, Swedish kronor, Swiss francs, US dollars, Japanese yen or such other currency or currencies as may be agreed between the Issuer and the relevant Dealer(s)), subject to compliance with all applicable legal or regulatory requirements.
(b) PAYMENT IN OTHER SPECIFIED CURRENCIES
Payments in respect of Notes denominated in a Specified Currency other than US dollars will be made in accordance with Condition 8 except as otherwise expressly provided herein and therein. A holder shall receive payments on such Notes in US dollars unless such holder elects to receive payment in the relevant Specified Currency. On or prior to 10:00 a.m. New York City time, two Business Days, prior to each date on which a payment of principal or interest (if any) in respect of any Notes denominated in a Specified Currency other than US dollars is due (each date on which such a payment is due, a "Payment Date"), the Issuer will make available to the Fiscal Agent in the relevant Specified Currency the aggregate amount of principal and interest due on such Payment Date on the relevant Notes.
Upon notification by the Fiscal Agent (prior to 2:00 p.m., New York City time on the third Business Day preceding any Payment Date) of the aggregate amount of principal and interest in the relevant Specified Currency payable to holders of Notes who are to receive payment in US dollars, the Exchange Rate Agent will, as near as practicable to 11:00 a.m. New York City time but no later than 2:00 p.m., New York City time, on the second Business Day prior to each Payment Date, arrange for the conversion of such aggregate amount into US dollars for settlement, and payment to the Fiscal Agent, on the Payment Date. Such conversion shall be based upon the highest firm bid quotation for the purchase of US dollars with such aggregate amount received by the Exchange Rate Agent as near as practicable to 11:00 a.m., but no later than 2:00 p.m., New York City time, on such second Business Day, based on bids solicited from three recognized foreign exchange dealers (one of whom may be the Exchange Rate Agent) in New York City selected by it and approved by the Issuer. If such bid quotations are not available, payment will be made in the relevant Specified Currency. All costs of exchange will be borne by the relevant holders.
If payment in respect of a Note is required to be made in a Specified Currency other than US dollars and such currency is unavailable on the date payment is due as a result of the imposition of exchange controls or other
Exhibit F
circumstances beyond the Issuer's control, then all payments in respect of such Note shall be made by the Issuer in US dollars until such currency is again available or so used. The amounts so payable on any payment date in such currency shall be converted into US dollars on the basis of the Market Exchange Rate on the second Business Day prior to such payment date. The "Market Exchange Rate" shall mean (i) the noon buying rate in New York for cable transfers in such currency as certified for customs purposes by the Federal Reserve Bank of New York, or (ii) in the event the Federal Reserve Bank of New York does not certify a noon buying rate for such currency, on the basis of the rate quoted or published by the relevant central bank as the rate for buying such currency in US dollars or (iii) if no such rate is quoted or published, the rate determined by the Fiscal Agent based on a quotation or an average of quotations given to the Fiscal Agent by commercial banks that conduct foreign exchange operations or by the Exchange Rate Agent or based on such other method as the Fiscal Agent may reasonably determine to calculate such Market Exchange Rate. In the event that the Market Exchange Rate is not available on the second Business Day prior to the payment date, the rate at which the amount due shall be converted into US dollars shall be such rate as may be agreed to at such time by the Issuer and Fiscal Agent. The making of any payment in respect of any Note in US dollars under the foregoing circumstances will not, unless otherwise provided in the applicable pricing supplement, constitute an Event of Default under such Note.
A beneficial owner of Notes held in the book-entry settlement system of DTC denominated in a Specified Currency other than US dollars electing to receive payments of principal or interest in such Specified Currency must notify the DTC Participant through which its interest is held on or prior to the applicable Record Date, in the case of a payment of interest, and on or prior to the 16th day prior to the Maturity Date (in the case of Fixed Rate Notes or Zero Coupon Notes) or the final Floating Interest Payment Date (in the case of Floating Rate Notes), in the case of a payment of principal or premium (if any), of such beneficial owner's election to receive all or a portion of such payment in such currency. Such DTC Participant must notify DTC of such election prior to the third Business Day after such Record Date. DTC will notify the Fiscal Agent of such election on or prior to the fifth Business Day after such Record Date. If complete instructions are received by a DTC Participant from the relevant holder and forwarded by the DTC Participant to DTC, and by DTC to the Fiscal Agent, on or prior to such dates, the beneficial owner will receive payments in the Specified Currency directly from the Fiscal Agent on or before the payment date. Notwithstanding the foregoing, in the case of a beneficial owner of interests in a Regulation S Global Note, such beneficial owner electing to receive payments of principal or any premium or interest in such Specified Currency must notify Euroclear or Clearstream, Luxembourg, as the case may be, at least seven days prior to the Record Date, in the case of a payment of interest, and at least seven days prior to the Maturity Date or the final Floating Interest Payment Date, in the case of a payment of principal or premium (if any), and payments will be made by the Fiscal Agent directly to Euroclear or Clearstream, Luxembourg, as the case may be.
(c) FOREIGN EXCHANGE RESTRICTIONS
In the event that on any payment date in respect of any Notes denominated in a Specified Currency other than the Argentine peso, any restrictions or prohibition of access to the Argentine foreign exchange market exists, the Issuer agrees to pay all amounts payable under the Notes in the Specified Currency either (i) by purchasing with Argentine pesos, any public securities, denominated and paid in U.S. Dollars, issued by the Argentine Government, that may be purchased in the United States of America, and transferring and selling such instruments outside Argentina in order to obtain all amounts payable under the Specified Currency, or (ii) by means of any other legal procedure existing in Argentina, on any due date for payment under the Notes, for the purchase of the Specified Currency of such Notes. All costs and taxes payable in connection with the procedures referred to in (i) and (ii) above shall be borne by the Issuer.
7. REDEMPTION AND PURCHASE
The Notes shall not be subject to redemption by the Issuer or the holder of a Note except as specified in the applicable pricing supplement, and as provided in this Condition 7, and subject to compliance with all applicable laws and regulations.
(a) AT MATURITY
Unless otherwise specified in the applicable pricing supplement and unless previously redeemed, or purchased and canceled, each Note shall be redeemed by the Issuer at its final redemption amount specified in the
Exhibit F
applicable pricing supplement in the relevant Specified Currency (subject to the provisions of Condition 6) on the Maturity Date (in case of a Note other than a Floating Rate Note) or on the Floating Interest Payment Date falling in the Redemption Month specified in the applicable pricing supplement (in the case of a Floating Rate Note).
(b) REDEMPTION FOR TAX REASONS
The Notes may be redeemed at the option of the Issuer in whole, but not in part, at any time (in the case of a Note other than a Floating Rate Note) or on any Floating Interest Payment Date (in the case of a Floating Rate Note), on giving not less than 30 nor more than 60 days' notice to the Fiscal Agent and, in accordance with Condition 16, not less than 15 nor more than 60 days' notice to the holders (which notice shall be irrevocable), if on the occasion of the next payment due under the Notes, the Issuer has or will become obliged to pay Additional Amounts (as defined in Condition 9) as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated thereunder) of Argentina or any political subdivision or any authority thereof or therein having power to tax, or any change in the application, administration or official interpretation of such laws, regulations or rulings, including the holding of a court of competent jurisdiction, which change or amendment becomes effective on or after the Issue Date of the applicable Tranche of Notes under the Program; provided that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on which the Issuer would be obliged to pay such Additional Amounts were a payment in respect of the Notes then due. Prior to the distribution of any notice of redemption pursuant to this Condition, the Issuer shall deliver to the Fiscal Agent a certificate signed by an authorized officer of the Issuer stating that the Issuer is entitled to effect such redemption and setting forth a statement of facts showing that the condition precedent to the right of the Issuer so to redeem have occurred, and an opinion of independent legal advisers of recognized standing to the effect that the Issuer has or will become obliged to pay such Additional Amounts as a result of such change or amendment.
Notes redeemed pursuant to this Condition 7(b) will be redeemed at their
Early Redemption Amount (as defined in Condition 7(h) below), together with any
accrued but unpaid interest and any Additional Amounts (as defined in Condition
9) to the date fixed for redemption.
(c) REDEMPTION RELATED TO PERSONAL ASSETS TAX
If (i) the Issuer becomes responsible for the payment of the Argentine
personal assets tax established by Law No. 23,996 (the "Personal Assets Tax
Law"), as amended and implemented (the "Personal Assets Tax") in respect of
Notes of any Class as a result of any change in, or amendment to, the laws (or
any regulations or rulings promulgated thereunder) of Argentina or any political
subdivision or any authority thereof or therein having the power to tax, or any
change in the application, administration or official interpretation of such
laws, regulations or rulings, including the holding of a court of competent
jurisdiction, which change or amendment becomes effective on or after the date
of the Issue Date of the applicable Tranche of Notes under the Program and (ii)
such obligation cannot be avoided by the Issuer taking reasonable measures
available to it, then such Notes will be redeemable as a whole (but not in
part), at the option of the Issuer, at any time upon not less than 30 nor more
than 60 days' notice given to the holders thereof as provided in the Fiscal and
Paying Agency Agreement at their principal amount together with accrued interest
thereon to the Redemption Date and any Additional Amounts then payable with
respect thereto. In order to effect a redemption of Notes under this Condition
7(c), the Issuer is required to deliver to the Fiscal Agent immediately prior to
the filing of the redemption notice (i) an officer's certificate stating that
the obligation to pay such Personal Assets Tax with respect to such Notes cannot
be avoided by the Issuer taking reasonable measures available to it and (ii) an
Opinion of Counsel to the effect that the Issuer has or will become obligated to
pay such Personal Assets Tax; provided, however, that (i) no notice of
redemption may be given earlier than 60 days prior to the earliest date on which
the Issuer would be obligated to pay such Personal Assets Tax and (ii) at the
time such notice of redemption with respect to any Notes is given, such
obligation to pay such Personal Assets Tax with respect to such Notes remains in
effect. Such notice, once delivered by the Issuer to the Fiscal Agent, will be
irrevocable.
In order to comply with the certification requirements of the Personal Assets Tax Law, the Issuer may from time to time request each holder of Notes to provide the Issuer with the documents required by Argentine laws and regulations to prove to the relevant Argentine authorities as to whether it is an offshore foreign entity, whether it has a permanent establishment in Argentina and whether it is an exempt foreign entity, all as prescribed by applicable
Exhibit F
Argentine law and regulations, and therefore subject to the Personal Assets Tax. However, the failure by a holder to comply with any such request will not affect any of the obligations of the Issuer hereunder.
(d) PRICING SUPPLEMENT
The pricing supplement applicable to each Note will indicate that either:
(i) such Note cannot be redeemed prior to its Maturity Date or, in the case of a Floating Rate Note, the Floating Interest Payment Date falling in the relevant Redemption Month (in each case except as otherwise provided in paragraph (b) above and in Condition 11); or
(ii) such Note will be redeemable at the option of the Issuer and/or the holder of such Note prior to such Maturity Date or, as the case may be, the Floating Interest Payment Date falling in the relevant Redemption Month in accordance with the provisions of paragraphs (e) and/or (f) below on the date or dates and at the amount or amounts specified in the applicable pricing supplement.
(e) REDEMPTION AT THE OPTION OF THE ISSUER
If so specified in the applicable pricing supplement, the Issuer may, on giving (unless otherwise specified in the applicable pricing supplement) not more than 60 nor less than 30 days' notice to the Fiscal Agent (which notice shall be irrevocable), redeem all or only some of the Notes then outstanding on the Optional Redemption Date(s) and at the Optional Redemption Amount(s) specified in the applicable pricing supplement together, if applicable, with accrued interest. The Fiscal Agent will notify the holders at least 15 days prior to the Optional Redemption Date. In the case of a partial redemption of Definitive Notes, the Notes to be repaid will be selected by the Fiscal Agent pro rata, individually by lot or as otherwise selected by the Fiscal Agent in accordance with applicable law and any applicable stock exchange regulations not more than 60 days prior to the date fixed for redemption and a list of the Notes called for redemption shall be provided to the holders of such Notes, not less than 15 days prior to such date. In the case of a partial redemption of Notes that are represented by a Global Note, the relevant Notes will be redeemed in accordance with the rules of DTC, Euroclear and/or Clearstream, Luxembourg, as applicable.
(f) AT THE OPTION OF THE HOLDERS
If so specified in the applicable pricing supplement, upon the holder of any Note giving to the Fiscal Agent in accordance with the provisions of Condition 17 not more than 60 nor less than 30 days' notice (or as otherwise specified in the pricing supplement and as agreed to by the Fiscal Agent) (which notice shall be irrevocable) the Issuer will redeem subject to, and in accordance with, the terms specified in the applicable pricing supplement in whole, but not in part, the Note on the Optional Redemption Date and at the Optional Redemption Amount specified in the applicable pricing supplement together, if applicable, with accrued interest. To the extent applicable, the relevant redemption notice shall be made in a newspaper having general circulation in Luxembourg (which is expected to be the Luxemburger Wort) and in any other country (including Argentina) where the Notes are listed on a stock exchange and the rules of such exchange requires such notice, and a subsequent notice announcing the aggregate amount of Notes not redeemed shall be published.
(g) NOTICES TO REDEEM
Notices to redeem Notes shall be sent in accordance with the provisions of Condition 17 and shall specify the dates fixed for redemption, the applicable redemption price, the place or places of payment, that payment will be made, in the case of any Definitive Notes, upon presentation and surrender of the Notes to be redeemed (or portion thereof in the case of a partial redemption, for which the non-redeemed portion will be represented by a new Definitive Note) and, in the case of any Global Notes, upon presentation for endorsement or surrender, and that on and after such date interest thereon will cease to accrue. If the redemption is pursuant to Condition 7(b) hereof, such notice shall also state that the Issuer has confirmed that the conditions precedent to such redemption have occurred and state that the Issuer has elected to redeem all the Notes subject to the conditions of Condition 7(b). To the extent applicable, the relevant redemption notice shall be made in a newspaper having general circulation in
Exhibit F
Luxembourg (which is expected to be the Luxemburger Wort) and in any other country (including Argentina) where the Notes are listed on a stock exchange and the rules of such exchange requires such notice, and a subsequent notice announcing the aggregate amount of Notes not redeemed shall be published.
(h) EARLY REDEMPTION AMOUNTS
For the purposes of Condition 7(b), and unless otherwise specified in the applicable pricing supplement, Notes (other than Index Notes) shall be redeemed at an amount (the "Early Redemption Amount") computed as follows:
(i) in the case of Notes issued at an Issue Price of 100 percent of their principal amount, at their principal amount in the relevant Specified Currency, together with, in the case of Fixed Rate Notes, interest accrued to the date fixed for redemption;
(ii) in the case of Notes (other than Zero Coupon Notes) issued with an Issue Price greater or less than 100 percent of their principal amount, at the amount set forth in the applicable pricing supplement; or
(iii) in the case of Zero Coupon Notes, at an amount (the "Amortized Face Amount") equal to:
(A) the sum of (x) the Reference Price specified in the applicable pricing supplement and (y) the product of the Accrual Yield specified in the applicable pricing supplement (compounded annually) being applied to the Reference Price from (and including) the Issue Date to (but excluding) the date fixed for redemption pursuant to Condition 7(b), (d) or (e) above or (as the case may be) the date upon which such Note becomes due and repayable as provided in Condition 11; or
(B) if the amount payable in respect of any Zero Coupon Note upon redemption of such Note pursuant to Condition 7(b), (e) or (f) above or upon its becoming due and repayable as provided in Condition 11 is not paid when due, the amount due and repayable in respect of such Note shall be the Amortized Face Amount of such Note computed as provided above, except that subparagraph (A) shall have effect as though the references in subparagraph (A) to the date fixed for redemption or the date upon which the Zero Coupon Note becomes due and repayable were replaced by references to the date (the "Reference Date") that is the earlier of:
(1) the day on which all sums due in respect of such Note up to that day are received by or on behalf of the holder of such Note; and
(2) the date on which the full amount of the moneys repayable has been received by the Fiscal Agent and notice to that effect has been given (either in accordance with the provisions of Condition 17 or individually).
The computation of the Amortized Face Amount in accordance with subparagraph (B) will continue to be made, to the extent permitted by applicable law after as well as before judgment, until the Reference Date unless the Reference Date falls on or after the Maturity Date, in which case the amount due and repayable shall be the principal amount of such Note together with interest at a rate per annum equal to the Accrual Yield and computed in accordance with the provisions of Condition 5(c).
(i) INDEX NOTES
Where the amount payable in respect of principal of an Index Linked Note upon redemption (the "Redemption Amount") is determined by reference to an index and/or a formula, the Redemption Amount shall be determined in accordance with the index and/or the formula specified in the applicable pricing supplement, and each such Index Linked Note shall, unless previously redeemed or purchased and canceled as provided below, be
Exhibit F
redeemed at the applicable Redemption Amount on the Maturity Date or the Floating Interest Payment Date in the relevant Redemption Month, as the case may be. Where the amount payable on an Index Linked Note on early redemption in respect of principal only, principal and interest or interest only (the "Early Redemption Amount") is to be determined in whole or in part by reference to an index and/or a formula, the applicable pricing supplement will set out details of the computation of the Early Redemption Amount.
(j) PURCHASE OF NOTES BY THE ISSUER
The Issuer may, to the extent permitted by applicable law and the applicable Argentine Central Bank regulations, at any time or from time to time purchase Notes in the open market, on an exchange, or by tender or by private agreement at any price. Any purchase of Notes of a Class by tender shall be made available to all holders of Notes of such Class alike. Any Note so purchased may be held by or for the account of the Issuer and may be canceled by the Issuer; provided, however, that for purposes of determining whether the holders of the requisite principal amount of Outstanding Notes are present at a meeting of holders for quorum purposes or have consented to or voted in favor of any request, demand, authorization, direction, notice, consent, waiver, amendment or modification under the Fiscal and Paying Agency Agreement, Notes known by a Responsible Officer of the Fiscal Agent to be owned by the Issuer or any Affiliate of the Issuer shall be disregarded and deemed not to be Outstanding.
8. PAYMENTS AND PAYING AGENTS
Payments of principal and interest, if any, payable at maturity or upon redemption in respect of Notes will be made in the currency in which such Notes are denominated (subject to Condition 6) by check drawn on, or, to the extent permitted by this Condition 8, by wire transfer to an account (which, in the case of a payment in yen to a non-resident of Japan, shall be a non-resident account) maintained by the holder with, a bank in the principal financial center of the country issuing the relevant currency (and in the case of euros, to a euro account) against presentation and surrender of such Note at the specified office of any of the Paying Agents. Payments of interest in respect of Notes (other than interest payable at maturity or upon redemption) will be made in the currency in which such Notes are denominated (subject to Condition 6) to the persons shown on the Register at the close of business on the applicable Record Date by check (and in the case of euros, a Eurocheque) drawn on a bank in the principal financial center of the country issuing the relevant currency (in the case of Euros, in any member country of the European Monetary Union) and mailed to each holder (or to the first named of joint holders) thereof at such holder's address appearing in the Register. Upon written application by any holder of at least U.S.$1,000,000 principal amount of Notes (or in the case of Notes not denominated in US dollars, the U.S. Dollar equivalent thereof rounded to the nearest 1,000 units of such currency as at the payment date) to the specified office of the Fiscal Agent or, in the case of any payment of principal, to the Paying Agent to whom such Note shall be presented and surrendered for payment, with appropriate wire transfer instructions, not later than the Record Date immediately preceding the relevant payment date, such payment of interest or principal, as the case may be, may be made in the currency in which the Notes are denominated (subject to Condition 6) by wire transfer to an account maintained by the holder with a bank in the principal financial center of the country issuing the relevant currency. Notwithstanding anything contained herein, while the Notes are in (i) the form of a global security, the Luxembourg Paying Agent shall not be required to make payments of either principal or interest in respect of the Notes, rather, payments of principal and interest will be made by the Principal Paying Agent, and (ii) the form of a definitive security, the Luxembourg Paying Agent shall only be required to make payments of principal and such payments will only be made upon presentation of such definitive security upon maturity thereof at the office of the Luxembourg Paying Agent as specified in the Fiscal and Paying Agency Agreement or an indenture or other relevant document (payments of interest shall be made by the Principal Paying Agent).
Except in the case of Notes denominated in a Specified Currency other than US dollars where the beneficial owner thereof has elected to receive payment in such Specified Currency, payments of principal and interest, if any, in respect of a Global Note shall be made to DTC or its nominee as the registered holder of such Note. None of the Issuer, the Fiscal Agent, the Registrar, the Co-Registrar, any Paying Agent or any Transfer Agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership of interests in such Notes or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Exhibit F
Subject to Condition 9, all payments are subject in all cases to any applicable tax or other laws and regulations. No commissions or expenses shall be charged to the holders in respect of such payments.
If the due date for payment of any amount in respect of any Note is not a business day at any place of payment, then the holder will not be entitled to payment at such place of the amount due until the next following business day at such place and, except as provided in Condition 5(b)(i), will not be entitled to any further interest or other payment in respect of any such delay.
The initial Paying Agents and Transfer Agents and their respective initial specified offices are set forth herein. The Issuer reserves the right at any time to vary or terminate the appointment of any Paying Agent and to appoint additional or other Paying Agents; provided, however, that while Notes are outstanding or until monies for the payment of all principal of and interest (and any Additional Amounts) on all outstanding Notes shall have been made available at the offices of the Fiscal Agent, it will at all times maintain (i) a Fiscal Agent, (ii) a Co-Registrar, Paying Agent and Transfer Agent in New York City (which may be the Fiscal Agent), (iii) a Registrar, Transfer Agent and Paying Agent in Buenos Aires, Argentina, (iv) a Transfer Agent and Paying Agent with a specified office in a European city, (v) so long as any Notes are listed on the Luxembourg Stock Exchange, the Luxembourg Paying Agent and a Transfer Agent with a specified office in Luxembourg and (vi) so long as any Notes are listed on any other stock exchange, a Paying Agent with a specified office for such place as may be required by the rules and regulations of such stock exchange.
In acting under the Fiscal and Paying Agency Agreement and in connection with the Notes, each of the Paying Agents is acting solely as agent of the Issuer and does not assume any obligation toward or relationship of agency or trust for or with the beneficial owner or holder of any Note, except that any funds held by any such agent for payment of principal of or interest (or any Additional Amounts) on the Notes shall be held in trust by it and applied as set forth herein, but need not be segregated from other funds held by it, except as required by law. For a description of the duties and the immunities and rights of each of the Paying Agents under the Fiscal and Paying Agency Agreement, reference is made to the Fiscal and Paying Agency Agreement, and the obligations of each of the Paying Agents to the beneficial owners or holders of Notes are subject to such immunities and rights.
All moneys paid by or on behalf of the Issuer to any Paying Agent for the payment of the principal of or interest on, as applicable, any Note that remain unclaimed at the end of two years after such principal or interest shall have become due and payable will be repaid to the Issuer and the holder of such Note will thereafter look only to the Issuer for payment. Upon such repayment, all liability of any Paying Agent with respect thereto shall cease, without, however, limiting in any way the obligation of the Issuer in respect of the amount so repaid.
9. ADDITIONAL AMOUNTS
All payments by the Issuer in respect of the Notes will be made without withholding or deduction for or on account of any present or future taxes, duties, levies, withholdings or other governmental charges of whatever nature in effect on the date of the Fiscal and Paying Agency Agreement or imposed or established in the future by or on behalf of Argentina or any political subdivision or authority thereof or therein having power to tax ("Argentine Taxes"), unless such withholding or deduction is required by law. In such event, the Issuer will pay such additional amounts ("Additional Amounts") as shall be necessary in order that the net amounts received by the holders of the Notes after such withholding or deduction shall equal the amounts which would otherwise have been receivable by them in respect of payments on such Notes in the absence of such withholding or deduction, except that no such Additional Amounts shall be payable:
(i) to or on behalf of a holder or beneficial owner of a Note that is liable for Argentine Taxes in respect of such Note by reason of some present or former connection with Argentina by such holder (or a fiduciary, settlor, beneficiary, member or shareholder of such holder if such holder is an estate or trust, a partnership or a corporation) including, without limitation, such holder (or such fiduciary, settlor, beneficiary, member or shareholder) being or having been a citizen or resident thereof or being or having been engaged in a trade or business or present therein, or having or having had, a permanent establishment therein, otherwise than by the mere holding or owning of such Note or by the receipt of income or any payments in respect thereof;
Exhibit F
(ii) in respect of any estate, inheritance, gift, sales, transfer or any similar tax, assessment or governmental charges;
(iii) in respect of any taxes, duties, assessments or other governmental charges that are payable otherwise than by deduction or withholding from payments on the Notes;
(iv) to or on behalf of a holder in respect of Argentine Taxes that would not have been imposed but for the failure of such holder to present a Note for payment (where presentation is required) more than 30 days after the Relevant Date (as defined) except to the extent that payments to the holder would have been subject to withholding or deduction of Argentine Taxes, and the holder would have been entitled to an Additional Amount on presenting the same for payment, in each case, on such 30th day. As used herein, the "Relevant Date" means the date on which such payment first becomes due, except that, if the full amount of the moneys payable has not been duly received by the Fiscal Agent on or prior to such due date, it means the date on which, the full amount of such moneys having been so received, notice to that effect is duly given to the holders in accordance with Condition 16;
(v) in respect of any tax which would not have been imposed but for the failure to comply with certification, information or other reporting requirements promptly upon the reasonable request of the Issuer concerning the nationality, residence or identity of the holder or beneficial owner of such Note, if such compliance is required by statute or by regulation of Argentina or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax;
nor shall Additional Amounts be paid with respect to any payment on a Note to a holder who is a fiduciary or partnership or other than the sole beneficial owner of such payment to the extent such payment would be required to be included in the income, for tax purposes, of a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the holder of the Note.
In addition, the Issuer hereby waives any right it may have under Argentine law to seek reimbursement from the holder or beneficial owner of any Note of any amounts paid by the Issuer in connection with the Argentine Personal Assets Tax, whether by deduction from payment of principal or interest on any such Note or otherwise.
References to payments in respect of the Notes herein shall be deemed also to refer to any Additional Amounts that may be payable as set forth in such Notes and described above.
10. COVENANTS
Under the terms of the Notes, the Issuer shall covenant and agree that as long as any of the Notes remain outstanding:
(a) PAYMENT OF PRINCIPAL AND INTEREST
The Issuer will duly and punctually pay the principal of and interest and any Additional Amounts on the Notes in accordance with the terms of the Notes and the Fiscal and Paying Agency Agreement.
(b) REPORTS TO THE FISCAL AGENT
The Issuer shall furnish or cause to be furnished to the Fiscal Agent and the Luxembourg Stock Exchange, (i) as soon as available but in any event not later than one hundred eighty (180) days after the close of each of its fiscal years, a complete copy of its annual report in the English language (an "Annual Report"), and (ii) as soon as available but in any event not later than seventy-five (75) days after the end of each of the first three quarters of each of its fiscal years, a quarterly report of the Issuer in the English language (a "Quarterly Report"), which Annual Report shall include a consolidated balance sheet, consolidated statement of income, consolidated statement of changes in stockholders' equity and consolidated statement of cash flows and which Quarterly Report shall include an unconsolidated balance sheet, unconsolidated statement of income and unconsolidated statement of changes in
Exhibit F
shareholders' equity for such fiscal year or quarter of the Issuer, as the case may be, and which, in the case of the Annual Report, will be audited by and accompanied by (A) a report thereon of an independent public accountant selected by the Issuer and (B) a reconciliation to U.S. generally accepted accounting principles of net income and shareholders' equity and, in the case of each Quarterly Report, will be subject to limited review by an independent public accountant selected by the Issuer.
In addition to the provision of financial information provided above, at any time the Issuer is not subject to the reporting obligations of Section 13 or 15(d) of the Exchange Act, the Issuer will make available, upon request, to any holder of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
(c) NOTICE OF DEFAULT OR EVENT OF DEFAULT
The Issuer shall give prompt notice to the Fiscal Agent, of the occurrence of any Event of Default (as defined below) or an event that would give rise to an Event of Default upon the giving of notice or the lapse of time or both, accompanied by a certificate specifying the nature of such Event of Default or other such event, the period of existence thereof and the action that the Issuer has taken or proposes to take with respect thereto.
(d) MAINTENANCE OF CORPORATE EXISTENCE
The Issuer shall, and shall cause each of its Subsidiaries to, (i)
maintain in effect its corporate existence (including, the authorization from
the Argentine Central Bank to engage in the business of banking) and all
registrations necessary therefor and (ii) take all reasonable actions to
maintain all rights, privileges, titles to Property, franchises and the like
necessary or desirable in the normal conduct of its business, activities or
operations and (iii) keep all its Property in good working order or condition;
(iv) obtain and maintain in full force and effect all governmental or other
regulatory approvals and consents (including the approval of the CNV) so that it
may lawfully comply with its obligations under the Notes and the Fiscal and
Paying Agency Agreement, and in such connection, the Issuer will at all times
comply with any applicable laws, regulations and directives applicable to it
from time to time promulgated by any governmental and regulatory authorities
applicable to any issue of Notes and ensure that all necessary action is taken
so that is may lawfully comply with its obligation under the Notes and the
Fiscal and Paying Agency Agreement; provided, however, that this covenant shall
not prohibit any transaction by the Issuer or any of its Subsidiaries otherwise
permitted under Covenant 10(f) "Mergers, Consolidations, Sales and Leases" and
this covenant shall not require the Issuer to maintain any such right,
privilege, title to Property or franchise or to preserve the corporate existence
of any Subsidiary, if the Board of Directors of the Issuer shall determine that
the maintenance or preservation thereof is no longer desirable in the conduct of
the business of the Issuer and its Subsidiaries taken as a whole and that the
loss thereof is not, and will not be, adverse in any material respect to the
holders.
(e) NEGATIVE PLEDGE
The Issuer shall not, and shall not permit any of its Subsidiaries (as defined below) to, create or suffer to exist any Encumbrance (defined to mean any mortgage, pledge, lien, security interest or other charge or encumbrance including, without limitation, any equivalent created or arising under the laws of Argentina or New York) upon or with respect to any of their present or future Property (defined to include any asset, revenue or any other property, whether tangible or intangible, real or personal, including, without limitation, any right to receive income), in each case to secure Indebtedness (as defined below), unless the Notes are equally and ratably secured, except:
(i) any Encumbrance on any Property existing on the date of the Fiscal and Paying Agency Agreement;
(ii) any Encumbrance on any asset securing Indebtedness incurred or assumed solely for the purpose of financing all or any part of the cost of acquiring such asset ("Purchase Money Financing"), which Encumbrance attached to such asset concurrently with or within ninety days after the acquisition thereof;
Exhibit F
(iii) any Encumbrance required to be created in connection with special lines of credit (lineas especiales de credito) or rediscount loans (redescuentos) obtained in accordance with applicable rules and regulations of the Argentine Central Bank or such other applicable rules and regulations governing such special lines of credit or rediscount loans. "Lineas especiales de credito" means those lines of credit which are granted to the Issuer by or through local or foreign governmental entities (including, without limitation, the Argentine Central Bank, Banco de Inversion y Comerico Exterior S.A. ("BICE"), Fondo Fiduciario para la Reconstrucion de Empresas S.A. ("FFRE"), Sedesa, the Banking Liquidity Fund, development banks and export credit agencies) or international multilateral lending organizations (including, without limitation, the International Bank for Reconstruction and Development and the Inter-American Development Bank), directly or indirectly, in order to promote or develop the Argentine economy; "redescuentos" means those rediscount loans (including but not limited to loans granted in response to circumstances of short-term, extraordinary illiquidity) which are granted by the Argentine Central Bank, BICE, FFRE, Sedesa, the Banking Liquidity Fund, and by other Argentine government entities, including the ones granted pursuant to section 16 of Law No. 25,780 during the emergency period set forth under the Public Emergency Law, those rediscount loans and overdrafts which are granted by the Argentine Central Bank to financial entities going through liquidity and solvency problems, included those entities subject to a restructuring process as contemplated in section 35 bis of the Financial Institutions Law;
(iv) any Encumbrance on any Property existing thereon at the time of acquisition of such Property and not created in connection with such acquisition;
(v) any Encumbrance on any Property securing an extension, renewal
or refunding of Indebtedness secured by an Encumbrance referred to in (i),
(ii) or (iv) above provided that such new Encumbrance is limited to the
Property which was subject to the prior Encumbrance immediately before
such extension, renewal or refunding and provided that the principal
amount of Indebtedness secured by the prior Encumbrance immediately before
such extension, renewal or refunding is not increased;
(vi) any Encumbrance in the form of a tax or other statutory lien, provided that any such lien shall be discharged within thirty (30) days after the date it is created or arises (unless contested in good faith by the Issuer, in which case it shall be discharged within thirty (30) days after final adjudication);
(vii) Encumbrances granted in a Permitted Securitization (defined to mean the sale, assignment, or other transfer to a third-party by the Bank of any of the Bank's present or future revenues or assets where the proceeds of any debt incurred by such third-party is paid (net of expenses and reserves) to the Bank as purchase price for such revenues or assets);
(viii) any other Encumbrance on assets of the Issuer or any of its Subsidiaries, provided that the Indebtedness secured by such Encumbrance, together with all other indebtedness of the Issuer or any of its Subsidiaries secured by any Encumbrance under this clause (vii), shall have an aggregate market value at the time of the creation of such Encumbrance no greater than ten percent of the total assets of the Issuer and its Subsidiaries as set forth in the Issuer's most recent consolidated financial statements.
As used herein, the term "Indebtedness" shall mean, for any Person (defined to mean any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof), (A) all indebtedness of such Person for borrowed money or for the deferred purchase price of any Property or services, (B) all indebtedness created or arising under any conditional sales or other title retention agreement with respect to any Property acquired by such Person (including, without limitation, indebtedness under any such agreement which provides that the rights and remedies of the seller or lender thereunder in the event of default are limited to repossession or sale of such Property), (C) all obligations under leases which shall have been or should be, in accordance with generally accepted accounting principles in Argentina, recorded as capitalized leases in respect of which such Person is liable as lessee, (D) all direct or indirect guaranties (including, without limitation, "avales") of such Person in respect of, and all obligations (contingent or otherwise) of such Person to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, any indebtedness referred to above in clause (A), (B) or (C) of any other Person, and (E) all indebtedness and obligations referred to above in clause (A), (B), (C) or (D) secured by (or for which the holder of such indebtedness or obligation has an existing right, contingent or otherwise, to be secured by) any Encumbrance upon or in any Property of such Person,
Exhibit F
notwithstanding that such Person has not assumed or become liable for the
payment of such indebtedness or obligation; provided, however, that the term
"Indebtedness" shall not include Indebtedness incurred by the Issuer or any of
its Subsidiaries in the "ordinary course of business" (hereinafter defined). As
used herein, the term "Indebtedness incurred by the Issuer or any of its
Subsidiaries in the ordinary course of business" shall mean and include any
liability or obligation of the Issuer or any of its Subsidiaries with respect to
(1) any deposits with or funds collected by it (but not funds borrowed or raised
by it), (2) any check, note, certificate of deposit, draft or bill of exchange,
issued, accepted or endorsed by it in the ordinary course of its business, (3)
any transaction in which it acts solely in a fiduciary or agency capacity, (4)
any banker's acceptance, (5) any agreement, made by it in the ordinary course of
its business, to purchase or repurchase securities or loans or currency or to
participate in loans and (6) letters of credit to the extent they are issued by
the Issuer or any of its Subsidiaries in the ordinary course of business.
As used herein, the term "Subsidiary" shall mean any corporation of which, at the time of determination, the Issuer and/or one or more of its Subsidiaries owns or controls directly or indirectly more than 50.0% of the shares of voting stock; for the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlling" and "controlled" have the meanings correlative to the foregoing, and "voting stock", when used with reference to a Subsidiary, means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or Fiscal Agents of such corporation, provided that, for the purposes hereof, stock which carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
(f) MERGERS, CONSOLIDATIONS, SALES AND LEASES
The Issuer shall not, and shall not permit any of its Subsidiaries to, merge, consolidate or amalgamate with or into, or convey, transfer or lease its Properties and assets substantially as an entirety to, any Person, unless immediately after giving effect to such transaction (i) no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing, (ii) any corporation formed by any such merger, consolidation or amalgamation with the Issuer or the Person which acquires by conveyance or transfer, or which leases, the Properties and assets of the Issuer substantially as an entirety (the "Issuer's successor corporation") shall expressly assume the due and punctual payment of the principal of, premium, if any, and interest on (including Additional Amounts, if any) all the Notes according to their terms, and the due and punctual performance of all of the covenants and obligations of the Issuer under the Notes and the Fiscal and Paying Agency Agreement and (iii) the Issuer's successor corporation (except in the case of leases), if any, succeeds to and becomes substituted for the Issuer with the same effect as if it had been named in the Notes as the Issuer.
(g) COMPLIANCE WITH LAWS AND OTHER AGREEMENTS
The Issuer shall, and shall cause each of its Subsidiaries to, comply with all applicable laws, rules, regulations, orders and directions of any Governmental Agency (as defined) having jurisdiction over it or its business and all covenants and other obligations contained in any agreements to which the Issuer or any such Subsidiary is a party, except where the failure to so comply would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, operations, business affairs or business prospects of the Issuer and its Subsidiaries taken as a whole.
As used herein, the term "Governmental Agency" shall mean, with respect to any jurisdiction, any public legal entity or public agency of such jurisdiction, whether created by federal, state or local government, or any other legal entity now existing or hereafter created, or now or hereafter owned or controlled, directly or indirectly, by any public legal entity or public agency of such jurisdiction (including the Argentine Central Bank).
(h) MAINTENANCE OF BOOKS AND RECORDS
The Issuer shall maintain books, accounts and records in accordance with Argentine Banking GAAP.
Exhibit F
(i) FURTHER ASSURANCES
The Issuer shall, at its own cost and expense, execute and deliver to the Fiscal Agent all such other documents, instruments and agreements and do all such other acts and things as may be reasonably required, in the opinion of the Fiscal Agent, to enable the Fiscal Agent to exercise and enforce its rights under the Fiscal and Paying Agency Agreement and under the documents, instruments and agreements required under the Fiscal and Paying Agency Agreement and to carry out the intent of the Fiscal and Paying Agency Agreement.
11. EVENTS OF DEFAULT
As long as any of the Notes remain outstanding, if any of the following events (each, an "Event of Default") shall occur and be continuing:
(i) default by the Issuer in the payment of any principal due on any Note and such default continues for a period of seven (7) Business Days; or
(ii) default by the Issuer in the payment of any interest, any premium, or any Additional Amounts due on any Note and such default continues for a period of fourteen (14) Business Days; or
(iii) the Issuer shall fail to duly perform or observe any other covenant or obligation applicable to such Class, or the Fiscal and Paying Agency Agreement and such failure shall continue for a period of 30 days after written notice to that effect is received by the Issuer from the Fiscal Agent; or
(iv) the failure of the Issuer or any Significant Subsidiary to pay when due any installment of interest on or principal of indebtedness for borrowed money, other than the Issuer's indebtedness outstanding as at September, 30, 2003 that is payable in a currency other than pesos and is governed by laws of a jurisdiction other than of Argentina that is not restructured in accordance with the terms of the Plan, in an aggregate unpaid amount of US$20.0 million or more after any applicable grace period, or any other event shall occur which results in the acceleration of the maturity of any such indebtedness for borrowed money; or
(v) it becomes unlawful for the Issuer to perform any of its obligations under the Fiscal and Paying Agency Agreement or the Notes, or any of its obligations thereunder ceases to be valid, binding or enforceable; or
(vi) the Fiscal and Paying Agency Agreement for any reason ceases to be in full force and effect in accordance with its terms or the binding effect or enforceability thereof shall be contested by the Issuer, or the Issuer shall deny that it has any further liability or obligation thereunder or in respect thereof; or
(vii) (a) a court having jurisdiction enters a decree or order for
(i) relief in respect of the Issuer or any Significant Subsidiary in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect or (ii) appointment of an
administrator, receiver, trustee, Fiscal Agent or intervener for the
Issuer or any Significant Subsidiary for all or substantially all of the
Property of the Issuer or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of
30 consecutive days other than the controller ("veedor") appointed in the
Bank by the Argentine Central Bank under Section 34 of the Financial
Institutions Law pursuant to the Plan or (b) the Argentine Central Bank
(i) initiates a proceeding under Article 34 of Argentine Law No. 21,526,
as amended, requesting the Issuer to submit a plan under such Article as
of the date hereof (excluding the Issuer's current situation in relation
with the Plan submitted under such Section 34 of the Financial
Institutions Law) or (ii) orders a temporary, total or partial suspension
of the activities of the Issuer pursuant to Article 49 of the charter of
the Argentine Central Bank; or
Exhibit F
(viii) the Issuer or any Significant Subsidiary is declared in bankruptcy by a firm, non-appealable decision dictated by a court of competent jurisdiction under Argentine Law No. 24,522, as amended, or any applicable bankruptcy, insolvency or other similar law or hereinafter in effect; or
(ix) the Issuer or any Significant Subsidiary (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, provided that the institution or consummation of an Acuerdo Preventivo Extrajudicial pursuant to Argentine Law No. 24,522, as amended, and any related proceedings under Section 304 or Chapter 11 of the United States Code in connection with the restructuring of the Bank's foreign debt described in clause (iv) above shall not be an Event of Default, (ii) consents to the appointment of or taking possession by an administrator, receiver, trustee, Fiscal Agent or intervener for itself or any Significant Subsidiary or for all or substantially all of the Property of the Issuer or any Significant Subsidiary, other than the controller ("veedor") appointed in the Bank by the Argentine Central Bank under Section 34 of the Financial Institutions Law pursuant to the Plan or (iii) effects any general assignment for the benefit of creditors under the restructuring process contemplated under section 35 bis of the Financial Institutions Law (other than in connection with the Plan); or
(x) a moratorium is agreed or declared in respect of any indebtedness of the Issuer or of any Significant Subsidiary, or any Governmental Agency condemns, seizes, compulsorily purchases or expropriates five percent or more of the assets of the Issuer and its Subsidiaries considered as one enterprise; or
(xi) any event occurs which under the laws of any relevant jurisdiction has an analogous effect to any of the events referred to in subparagraph (vii) or (x) above;
then, except as otherwise provided in the next succeeding paragraph in respect of the Subordinated Notes, (a) as soon as practicable after a Responsible Officer of the Fiscal Agent obtains knowledge thereof, the Fiscal Agent shall give notice thereof to the holders of Notes and (1) (other than with respect to an Event of Default of the type described in subparagraph (vii) through (ix) above) the holders of at least 25.0% in aggregate principal amount of the Outstanding Notes of any Class may by written notice to the Issuer and to the Fiscal Agent, declare the principal amount (or, if the Notes of such Class are Notes issued at a discount to their nominal value ("Original Issue Discount Notes") or Notes in respect of which principal and/or interest is calculated by reference to an index and/or formula ("Index Notes") such portions of the principal amount as may be specified in the terms of such Class) of all Notes of such Class to be due and payable immediately, and (2) if an Event of Default of the type described in subparagraph (vii) through (ix) above shall occur, the principal of (and premium and Additional Amounts, if any) and any accrued interest on all Outstanding Notes shall become immediately due and payable without the need of any notice to the Issuer or the Fiscal Agent, as the case may be; provided, however, that after any such acceleration of Notes of a Class, the holders of a majority in aggregate principal amount of Notes of that Class at the time outstanding may, under certain circumstances, rescind and annul such acceleration if all Events of Default, other than the non-payment of accelerated principal, have been cured or waived as provided in the Fiscal and Paying Agency Agreement. For information as to waiver of defaults, see Condition 12 "Modifications and Amendments; Meeting of Holders."
For Argentine regulatory purposes as set forth in Communique "A" 2970 only, holders of Subordinated Notes shall have no right to accelerate repayment of the Notes except under an Event of Default with respect to the Issuer described under clause Section (vii)(a)(i) (excluding Significant Subsidiaries) and Section (viii) above (each such "Event of Default" in respect of the Subordinated Notes, shall also be a "Subordinated Note Event of Acceleration") that has occurred and is continuing. In such situation, all Subordinated Notes shall, without any notice to the Issuer or any other act by any holder of any Subordinated Note, become immediately due and payable. Upon any such declaration of acceleration, the principal of the Subordinated Notes of the affected Class and the interest accrued thereon and all other amounts (including Additional Amounts) payable with respect to the Subordinated Notes of the affected Class shall become and be immediately due and payable once all other non-subordinated liabilities of the Issuer have been fully paid. Holders of the Subordinated Notes shall have no right to accelerate repayment of Notes in the case of any Event of Default except in the case of an Event of Default which would constitute a Subordinated Note Event of Acceleration.
Exhibit F
The foregoing provisions shall be without prejudice to the rights of each individual holder to initiate an action against the Issuer for the payment of any principal (and premium and Additional Amounts, if any) and any interest past due on any Note, as the case may be.
12. MODIFICATIONS AND AMENDMENTS; MEETING OF HOLDERS
(a) Meetings of Holders. The Fiscal and Paying Agency Agreement contains provisions for convening meetings of the holders of Notes of a Class. With respect to all matters not contemplated in the Fiscal and Paying Agency Agreement, meetings of the holders of Notes of a Class will be held in accordance with Negotiable Obligations Law. Such a meeting may be called at any time by the Fiscal Agent at its discretion, or shall be called by the Fiscal Agent pursuant to a request made to the Fiscal Agent by the Issuer or the holders of at least 5.0% in principal amount of the Outstanding Notes of such Class within the period of 21 days after receiving the relevant notice from the holders or the Issuer. Notices shall be published by the Fiscal Agent during five days, not less than 20 days nor more than 45 days prior to the date fixed for the meeting, in the Official Gazette of the Republic of Argentina (Boletin Oficial de la Republica Argentina) and in a widely distributed newspaper in Argentina. A meeting may be called by a competent court if the Fiscal Agent shall fail to call a meeting requested by the Issuer or the holders as provided in the Fiscal and Paying Agency Agreement. Except for any consent that must be given by the holder of each Note affected thereby, as described below, any resolution presented at a meeting, or adjourned meeting duly reconvened, at which a quorum is present may be adopted by the affirmative vote of the holders of a majority in principal amount of the Outstanding Notes of that Class present at such meeting; provided, however, that any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that may be made, given or taken by the holders of a specified percentage that is more than a majority in principal amount of the Outstanding Notes of a Class may be adopted at a meeting, or adjourned meeting duly reconvened, at which a quorum is present, by the affirmative vote of the holders of such higher specified percentage in principal amount of the Outstanding Notes of that Class present at such meeting. Any resolution passed or decision taken at any meeting of holders of Notes of any Class duly held in accordance with the Fiscal and Paying Agency Agreement will be binding on all holders of Notes of that Class. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will consist of persons entitled to vote a majority in principal amount of the Outstanding Notes of a Class.
(b) Modification and Amendment. Modification and amendment of the Fiscal and Paying Agency Agreement or the Notes (including the Conditions) may be made by the Issuer and the Fiscal Agent with the consent of the holders of a majority in principal amount of the Outstanding Notes of any Class that are affected by such modification or amendment; provided that no such modification or amendment may, without the consent of the holders of each Outstanding Note of such Class and the CNV: (i) change the Stated Maturity of the principal of (or premium, if any, on) or any installment of principal of or interest on any Note of such Class, (ii) reduce the principal amount or the rate of interest on or any Additional Amounts payable in respect of, or any premium payable upon the redemption of, any Note of such Class, (iii) change any obligation of the Issuer to pay Additional Amounts in respect of any Note of such Class, (iv) reduce the amount of principal of a Note of such Class that is an Original Issue Discount Note that would be due and payable upon a declaration of acceleration of the maturity thereof, (v) change the redemption provisions of any Note, (vi) adversely affect any right of repayment at the option of the holder of any Note of such Class, (vii) change the place or currency of payment of principal of, or any premium or interest on, any Note of such Class, (viii) impair the right to institute suit for the enforcement of any such payment on or after the maturity thereof or any Optional Redemption Date therefor, (ix) reduce the above-stated percentage of holders of Notes of such Class necessary to modify or amend the Fiscal and Paying Agency Agreement or to consent to any waiver thereunder or reduce the requirements for voting or quorum described above, or (x) modify the foregoing requirements or reduce the percentage of Notes of such Class necessary to waive any past default.
Modification and amendment of the Fiscal and Paying Agency Agreement or the Notes (including the Conditions) may be made by the Issuer and the Fiscal Agent without the consent of any holder, for any of the following purposes: (i) to evidence the succession of another Person to the Issuer as obligor under the Fiscal and Paying Agency Agreement (as contemplated in Section 10(f)); (ii) to add to the covenants of the Issuer for the benefit of the holders of all or any Class of Notes; (iii) to add Events of Default for the benefit of the holders of all or any Class of Notes; (iv) to change or eliminate any provisions of the Fiscal and Paying Agency Agreement, provided that any such change or elimination shall become effective only when there are no Outstanding Notes of any Class created prior thereto that are entitled to the benefit of such provision; (v) to establish the form or terms of
Exhibit F
Notes of any Class; (vi) to secure the Notes; (vii) to provide for the acceptance of appointment by a successor Fiscal Agent, Registrar, Co-Registrar, Paying Agent or Transfer Agent; (viii) to close the Fiscal and Paying Agency Agreement with respect to the authentication and delivery of additional Class of Notes; (ix) to cure any ambiguity, defect or inconsistency in the Fiscal and Paying Agency Agreement or the Notes (including the Conditions); (x) to amend or supplement any provision contained in the Fiscal and Paying Agency Agreement or the Notes (including the Conditions) or in any amendment thereto; or (xi) for any other purpose that the parties thereto may mutually deem necessary or desirable; provided in each such case that any such modification or amendment does not adversely affect the interests of holders of Notes of any Class in any material respect.
13. DEFEASANCE
Unless otherwise set forth in the applicable pricing supplement, subject to the satisfaction of certain conditions, the Bank may elect either (i) to defease and be discharged from any and all obligations with respect to the Notes (which must be denominated in US dollars and have a fixed rate of interest), including any obligation to redeem such Notes and the obligations described above under "Covenants" (except for certain obligations specified in the Fiscal and Paying Agency Agreement, including, but not limited to, the rights of holders of outstanding Notes to receive payments in respect of the principal of, premium, if any, and interest on such Notes where such payments are due, to pay Additional Amounts, to register the transfer or exchange of such Notes, to replace temporary or mutilated, destroyed, lost or stolen Notes, to submit to jurisdiction as set forth in the Fiscal and Paying Agency Agreement, or to maintain a Fiscal Agent and paying agent with respect to such Notes) ("total defeasance") or (ii) to defease and be discharged from such obligations with respect to Notes (which must be denominated in US dollars and bear a fixed rate of interest) as are described under "Covenants -- Negative Pledge" and "Covenants -- Further Actions" and to have the occurrence of any event specified in clause (2) under " -- Events of Default" not constitute an Event of Default (but only insofar as such clause relates to obligations described under "Covenants -- Negative Pledge" and "Covenants -- Further Actions" from which the Bank has been released as described in this clause (ii)) ("partial defeasance").
The Bank may exercise its election for total defeasance or partial defeasance with respect to Notes only upon satisfaction of the conditions precedent set forth in the Fiscal and Paying Agency Agreement which include, among others, (a) the deposit in trust with the Fiscal Agent, in trust for such purpose, of money and/or U.S. government obligations in an amount, specifically pledged as security for, and dedicated solely to, the benefit of the holders of such Notes, sufficient to pay the principal of and interest on the Notes to maturity or redemption, as the case may be, (b) the delivery to the Fiscal Agent of a certificate from a nationally recognized firm of U.S. independent certified public accountants expressing their opinion that the payments of principal and interest when due and without reinvestment of the deposited U.S. government obligations plus any deposited money without investment will provide cash at such times and in such amounts as will be sufficient to pay principal and interest when due on all the Notes to maturity or redemption, as the case may be, (c) the delivery to the Fiscal Agent of opinions of independent Argentine and U.S. counsel to the effect that the holders of such Notes will not recognize income, gain or loss for Argentine or U.S. federal income tax purposes as a result of such total or partial defeasance and will be subject to Argentine or U.S. federal income tax on the same amount, in the same manner and at the same times as would have been the case if such total defeasance or partial defeasance had not occurred, (d) the absence of any Event of Default, or event which with notice or lapse of time or both would become an Event of Default, on the day of deposit or at any time on or prior to the 123rd day after the date of such deposit or (e) the absence of any breach or violation of, or constitute a default under, any agreement to which the Bank is a party as a result of such total or partial defeasance.
14. REPLACEMENT OF NOTES
If any Note shall become mutilated or defaced or be destroyed, lost or stolen, then, in the absence of notice to the Issuer, the Fiscal Agent or the Replacement Agent (including the Luxembourg Paying Agent and Transfer Agent) that such Note has been acquired by a Protected Purchaser (as defined under section 8-303 of the New York Uniform Commercial Code, as amended) the Issuer, shall execute and, the Fiscal Agent may, authenticate and deliver a new Note on such terms as the Issuer and the Fiscal Agent may require, in exchange and substitution for the mutilated or defaced Note or in lieu of and in substitution for the destroyed, lost or stolen Note. In every case of mutilation, defacement, destruction, loss or theft, the applicant for a substitute Note shall furnish to the Issuer and the Fiscal Agent and the Replacement Agent (including the Luxembourg Paying Agent and Transfer Agent) such
Exhibit F
indemnity as the Issuer and the Fiscal Agent may require and evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership thereof. In every case of mutilation or defacement of a Note, the holder shall surrender to the Fiscal Agent or the Replacement Agent (including the Luxembourg Paying Agent and Transfer Agent) the Note so mutilated or defaced. In addition, prior to the issuance of any substitute Note, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the reasonable fees and expenses of the Fiscal Agent and its counsel and counsel to the Issuer) connected therewith. If any Note that has matured or will mature within 30 days shall become mutilated or defaced or be apparently destroyed, lost or stolen, the Issuer may pay, in its sole discretion, or authorize payment of the same without issuing a substitute Note.
Upon the issuance of any substitute Note, the holder of such Note, if so requested by the Issuer, will pay a sum sufficient to cover any stamp duty, tax or other governmental charge that may be imposed in relation thereto and any other expense (including without limitation the fees and expenses of the Fiscal Agent and any agent of the Fiscal Agent) connected with the preparation and issuance of the substitute Note or the taking of any such action.
15. GOVERNING LAW
The requirements for the Notes to qualify as obligaciones negociables under Argentine law are governed by the Negotiable Obligations Law.
Argentine Law No. 19,550, as amended, the Negotiable Obligations Law and other applicable Argentine laws and regulations will govern the capacity and corporate authorization of the Issuer to execute and deliver the Notes and the authorization of the Program. All other matters in respect of the Notes will be governed by and construed in accordance with the law of the State of New York, United States of America, applicable to agreements made and to be performed wholly within such state.
16. DESCRIPTIVE HEADINGS
The descriptive headings appearing in these Conditions are for convenience of reference only and shall not alter, limit or define the provisions hereof.
17. NOTICES
All notices to holders of Registered Notes will be deemed to have been
duly given upon the mailing by first class mail, postage prepaid, of such
notices to each such holder (or in the case of joint holders, to the first named
in the Register) at its address as it appears in the Register, in each case not
earlier than the earliest date and not later than the latest date prescribed in
the Fiscal and Paying Agency Agreement for the giving of such notice. Any notice
so mailed shall be deemed to have been given on the date of such mailing. In
case, by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause, it shall be impracticable to mail notice of any
event to holders of Notes when such notice is required to be given pursuant to
the Fiscal and Paying Agency Agreement, then any manner of giving such notice as
shall be satisfactory to the Fiscal Agent shall be deemed to be sufficient
giving of such notice for every purpose hereunder. In addition, notices to
holders will be published as follows: (i) as long as any Notes are listed on the
London Stock Exchange, in a leading English language daily newspaper having
general circulation in London (which is expected to be the Financial Times);
(ii) as long as any Notes are listed on the Luxembourg Stock Exchange, in a
leading daily newspaper having general circulation in Luxembourg (which is
expected to be the Luxemburger Wort); (iii) as long as such Notes are listed on
the BASE, upon publication in Buenos Aires in the Bulletin of the Bolsa de
Comercio de Buenos Aires and a widely circulated newspaper in Argentina (which
is expected to be La Nacion); and (iv) as long as any Notes are listed on any
other stock exchange, as required by such stock exchange.
Notice to be given by any holder shall be in writing and given by forwarding the same to the Fiscal Agent or any Paying Agent. While any Notes are represented by a Global Note, such notice may be given by any beneficial owner of an interest in such Global Note to the Fiscal Agent or any such Paying Agent via DTC, Euroclear and/or Clearstream, Luxembourg, as the case may be, in such manner as the Fiscal Agent or Paying
Exhibit F
Agent, as the case may be, and DTC, Euroclear and/or Clearstream, Luxembourg, as the case may be, may approve for such purpose.
The Fiscal Agent, the Registrar, the Co-Registrar, any Paying Agent, any Transfer Agent or any agent of any of such entities may conclusively rely on the records of DTC, Euroclear or Clearstream, Luxembourg, as applicable, as to the identity of owners of beneficial interests in each Global Note and the principal amounts beneficially owned.
In addition, the Bank shall be required to cause all such other publications of such notices as may be required from time to time by applicable Argentine law.
18. PRESCRIPTION
Claims against the Issuer for the payment of principal or interest in respect of the Notes shall be prescribed unless made within a period of 10 years for payments of principal and 4 years for payments of interest from the due day for payment.
19. CONSENT TO SERVICE OF PROCESS; JURISDICTION
The Issuer has submitted to the jurisdiction of the United States District
Court for the Southern District of New York, the Supreme Court of the State of
New York, New York County, and any appellate court from either thereof for
purposes of any legal suit, action or proceeding against it arising out of or
related to the Fiscal and Paying Agency Agreement or the Notes. According to
Section 38 of the Decree No. 677/01, and Argentine CNV Resolution No. 400, the
BASE Arbitration Tribunal, or the tribunal of any other stock exchange of
Argentina where the notes are listed, shall be competent in all matters brought
by investors in connection with the Issuer. The Issuer has appointed CT
Corporation System at 111 Eighth Avenue, New York, New York 10011, as its
authorized agent in the Borough of Manhattan upon which process may be served in
any such suit, action or proceeding. The Issuer has also further submitted to
the jurisdiction of the courts of its corporate domicile in any legal suit,
action or proceeding arising out of or relating to the Fiscal and Paying Agency
Agreement or the Notes.
20. CURRENCY INDEMNITY
The Specified Currency in which Notes of a Tranche or Class are designated as payable is the sole currency of account and payment for all sums payable by the Issuer under or in connection with such Notes, including damages (subject to the provisions of Condition 6). Any amount received or recovered in a currency other than such Specified Currency (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or otherwise) by any holder in respect of any sum expressed to be due to it from the Issuer shall only constitute a discharge of the Issuer to the extent of the Specified Currency amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable, to make that purchase on that date, on the first date on which it is practicable to do so). If that Specified Currency amount is less than the Specified Currency amount expressed to be due to the recipient under any Note, the Issuer shall indemnify such recipient against any loss sustained by it as a result. In any event, the Issuer shall indemnify the recipient against the cost of making any such purchase. For purposes of this paragraph, it will be sufficient for the holder to certify in a satisfactory manner (indicating the sources of information used) that it would have suffered a loss had an actual purchase of the Specified Currency been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of the Specified Currency on such date had not been practicable on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). These indemnities constitute a separate and independent obligation from the Issuer's other obligations, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by any holder and shall continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note or any other judgment or order.
Exhibit F
21. FURTHER ISSUES
The Issuer may from time to time, without the consent of the holders of any Outstanding Notes, create and issue further Notes having the same terms and conditions as such Outstanding Notes or that are the same in all respects except for their Issue Dates, Interest Commencement Dates, Maturity Dates and/or Issue Prices, so that the same shall be consolidated and form a single Class with such Outstanding Notes. Holders should note that additional notes that are treated for non-tax purposes as a single series with the original notes may be treated as a separate series for US federal income tax purposes. In such case, the new notes may be considered to have been issued with "original issue discount" (as defined in the section entitled "Taxation -- Original Issue Discount"), which may affect the market value of the original notes since such additional notes may not be distinguishable from the original notes.
22. FURTHER INFORMATION
The Bank will make available for inspection at the offices of its Listing Agent all such documents and agreements prepared by the Bank in connection with the issuance of Notes, and the Bank shall make available on a going forward basis all of its annual and quarterly consolidated and non-consolidated financial statements as they become available.
EXHIBIT G
[BANCO GALICIA LETTERHEAD]
May 18, 2004
Kredietbank S.A. Luxembourgeoise
43 Boulevard Royal
L-2955, Luxembourg
RE : Banco de Galicia y Buenos Aires S.A.
U.S. Dollar Denominated Notes due 2010
U.S. Dollar Denominated Notes due 2014, and
U.S. Dollar Denominated Notes due 2019 (collectively, the "Notes")
Dear Sirs,
Reference is made to the Indenture (the "Indenture"), dated May 18, 2004, among Banco de Galicia y Buenos Aires S.A., an Argentine corporation, incorporated on July 15, 1905, with a term of duration elapsing on June 30, 2100, and registered with the Public Registry of Commerce on November 21, 1905, under number 4, Folio Number 32 of Book 20, Volume A of Sociedades Anonimas, having its principal offices at Tte. Gral. Juan D. Peron 407, (C1038AAI) Buenos Aires, Argentina, The Bank of New York as trustee, co-registrar, a transfer agent and a paying agent (the "The Bank of New York"), and Banco Rio de la Plata S.A. as registrar and a transfer agent and a paying agent in Argentina (the "Registrar").
We hereby appoint you as Transfer Agent and Paying Agent in Luxembourg in connection with the above-captioned Notes.
Notwithstanding anything to the contrary in the Indenture, it is understood that while the Notes are in the form of a global security, in your capacity (i) as Paying Agent in Luxembourg, you shall not be required to make payments of either principal or interest in respect thereto, rather, payments of principal and interest will be made by The Bank of New York, and (ii) as Transfer Agent in Luxembourg, your responsibility with respect of the Notes is limited to that of forwarding any requests for transfer in respect of the Notes to the Registrar.
Notwithstanding anything to the contrary in the Indenture, it is further understood that if any of the Notes take the form of a definitive security, in your capacity (i) as Paying Agent in Luxembourg, you shall only be required to make payments of principal and such payments will only be made upon presentation of such definitive security upon maturity thereof at the office of the Luxembourg Paying Agent as specified in the Indenture (payments of interest shall be made by The Bank of New York), and (ii) as Transfer Agent in Luxembourg, your responsibility with respect to any Notes in the form of a definitive security is limited to that of forwarding any requests for transfer in respect thereof to the Registrar.
Very truly yours,
BANCO DE GALICIA Y BUENOS AIRES S.A.
By: ____________________________________
Name: Hector E. Arzeno
Title: Executive Vice President
The foregoing is hereby accepted and acknowledged as of the date first written above:
KREDIETBANK S.A. LUXEMBOURGEOISE
as a Paying and Transfer Agent
EXHIBIT G
By: ____________________________________
Name:
Title:
FEES PAYABLE TO TRUSTEE
The Trustee's compensation shall be US$15,000 per annum or such other amount as shall be agreed to in writing with the Company from time to time.
Exhibit 4.1
FORM OF RESTRUCTURED LOAN FACILITY
as evidenced by
NOTE PURCHASE AGREEMENT
DATED AS OF
APRIL 27, 2004
AMONG
BANCO DE GALICIA Y BUENOS AIRES S.A.,
AS ISSUER,
BARCLAYS BANK PLC,
AS DOCUMENTATION AGENT,
THE HOLDERS PARTY HERETO FROM TIME TO TIME,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS AGENT
TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS........................................................................................ 2 Section 1.1. Defined Terms.................................................................... 2 Section 1.2. Terms Generally.................................................................. 26 Section 1.3. Accounting Terms; Accounting Principles.......................................... 26 ARTICLE II THE RESTRUCTURED DOLLAR NOTES...................................................................... 27 Section 2.1. Elections for Exchange of Original Dollar Loans.................................. 27 Section 2.2. The Long-Term Dollar LIBOR Notes................................................. 28 Section 2.3. The Long-Term Dollar Fixed Rate Notes............................................ 29 Section 2.4. The Medium-Term Dollar LIBOR Notes............................................... 29 Section 2.5. The Medium-Term Dollar Fixed Rate Notes.......................................... 29 Section 2.6. The Subordinated Dollar LIBOR Notes.............................................. 29 Section 2.7. The Subordinated Dollar Fixed Rate Notes......................................... 30 Section 2.8. Effect of Effective Date and Exchange............................................ 30 Section 2.9. Repayment of Long-Term Dollar Notes.............................................. 30 Section 2.10. Repayment of Medium-Term Dollar Notes............................................ 31 Section 2.11. Repayment of Subordinated Dollar Notes........................................... 31 Section 2.12. Repayment of Subordinated Dollar PIK Notes....................................... 31 Section 2.13. Evidence of Debt................................................................. 32 Section 2.14. Notes............................................................................ 32 Section 2.15. Subordination.................................................................... 34 ARTICLE III GENERAL PROVISIONS APPLICABLE TO THE RESTRUCTURED DOLLAR NOTES..................................... 32 Section 3.1. Optional Prepayment of Restructured Dollar Notes................................. 32 Section 3.2. Mandatory Prepayment of Restructured Dollar Notes................................ 35 Section 3.3. Interest......................................................................... 37 Section 3.4. Agent's Fees..................................................................... 39 Section 3.5. Alternate Rate of Interest....................................................... 39 Section 3.6. Increased Costs, Etc............................................................. 40 Section 3.7. Illegality....................................................................... 41 Section 3.8. Taxes............................................................................ 41 Section 3.9. Payments Generally; Pro Rata Treatment........................................... 43 Section 3.10. Sharing of Payments, Etc......................................................... 44 ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................................... 45 Section 4.1. Organization; Powers............................................................. 45 Section 4.2. No Conflicts..................................................................... 45 Section 4.3. Due Authorization; Enforceability................................................ 46 Section 4.4. No Additional Authorization, Etc................................................. 46 Section 4.5. Compliance with Law.............................................................. 46 Section 4.6. Properties....................................................................... 46 Section 4.7. Material Litigation.............................................................. 46 |
TABLE OF CONTENTS
(continued)
PAGE Section 4.8. Civil and Commercial Law; No Immunity............................................ 46 Section 4.9. Taxes............................................................................ 46 Section 4.10. Withholding Taxes................................................................ 47 Section 4.11. Full Disclosure.................................................................. 47 Section 4.12. Proper Legal Form; Immunity...................................................... 47 Section 4.13. Pari Passu Ranking............................................................... 47 Section 4.14. Investment Company Act........................................................... 48 Section 4.15. Financial Statements............................................................. 48 Section 4.16. Transaction Documents............................................................ 48 Section 4.17. Surviving Debt................................................................... 48 Section 4.18. Existing Liens................................................................... 48 Section 4.19. Material Adverse Effect.......................................................... 48 Section 4.20. Insolvency....................................................................... 48 Section 4.21. Insurance........................................................................ 48 Section 4.22. Labor Disputes................................................................... 49 ARTICLE V CONDITIONS TO EFFECTIVENESS........................................................................ 49 Section 5.1. Conditions Precedent to Effectiveness............................................ 49 ARTICLE VI COVENANTS OF THE ISSUER............................................................................ 53 Section 6.1. Affirmative Covenants............................................................ 53 Section 6.2. Reporting Covenants.............................................................. 56 Section 6.3. Financial Covenants.............................................................. 58 Section 6.4. Negative Covenants............................................................... 58 ARTICLE VII EVENTS OF DEFAULT.................................................................................. 63 Section 7.1. Acceleration after Default....................................................... 63 Section 7.2. Events of Default................................................................ 63 ARTICLE VIII THE AGENT AND THE DOCUMENTATION AGENT.............................................................. 68 Section 8.1. Authorization and Action......................................................... 68 Section 8.2. Agents' Reliance, Etc............................................................ 68 Section 8.3. Agent, Documentation Agent and Affiliates........................................ 70 Section 8.4. Holder Credit Decision........................................................... 70 Section 8.5. Indemnification.................................................................. 71 Section 8.6. Successor Agent.................................................................. 72 Section 8.7. Documentation Agent.............................................................. 72 ARTICLE IX MISCELLANEOUS...................................................................................... 72 Section 9.1. Notices.......................................................................... 72 Section 9.2. No Waiver; Remedies; Amendments; Etc............................................. 73 Section 9.3. Costs and Expenses; Indemnity; Damage Waiver..................................... 74 Section 9.4. Assignments; Participations...................................................... 76 Section 9.5. Holders' Representation.......................................................... 79 |
TABLE OF CONTENTS
(continued)
PAGE Section 9.6. Survival......................................................................... 79 Section 9.7. Counterparts; Effectiveness...................................................... 79 Section 9.8. Severability..................................................................... 79 Section 9.9. Right of Setoff.................................................................. 80 Section 9.10. Jurisdiction; Consent to Service of Process...................................... 80 Section 9.11. WAIVER OF JURY TRIAL............................................................. 81 Section 9.12. Judgment Currency................................................................ 81 Section 9.13. Waiver of Sovereign Immunity..................................................... 82 Section 9.14. English Language................................................................. 82 Section 9.15. Headings......................................................................... 83 Section 9.16. Confidentiality.................................................................. 83 Section 9.17. GOVERNING LAW.................................................................... 83 Section 9.18. Actions Consistent with this Agreement........................................... 83 |
SCHEDULES:
I Existing Bonds and Existing Bank Debt II Escasany, Ayerza and Braun Family Members III Holder Addresses IV Original Dollar Loan Agreements V Real Estate 2.1 Proration and Reallocation Procedure 4.17 Surviving Debt 4.18 Existing Liens 5.1(b)(ii) Effective Date Interest Amounts EXHIBITS: A Form of APE B Form of Assignment and Acceptance C Form of Allocation Notice D-1 Form of Argentine Note D-2 Form of U.S. Note E Form of Election Notice F Form of Closing Certificate G Form of Certificate of Incumbency and Authority H Form of Process Agent Letter I Form of Auditor Authorization |
NOTE PURCHASE AGREEMENT, dated as of April 27, 2004 (as amended, supplemented or otherwise modified from time to time, this "Agreement"), among BANCO DE GALICIA Y BUENOS AIRES S.A., a sociedad anonima organized under the laws of the Republic of Argentina (the "Issuer"), the holders from time to time parties hereto (the "Holders"), DEUTSCHE BANK TRUST COMPANY AMERICAS, as agent for the Holders (in such capacity, together with any successor Agent appointed pursuant to Article VIII, the "Agent") and BARCLAYS BANK PLC, as Documentation Agent (in such capacity, the "Documentation Agent").
RECITALS
WHEREAS, the Issuer desires to restructure simultaneously its existing
Debt (as defined below) under (i) the Existing Bonds (as defined below), and
(ii) the Existing Bank Debt (as defined below) including, inter alia, the
Original Dollar Loans (as defined below) (collectively, the "Restructuring");
WHEREAS, as part of the Restructuring, the Issuer and the Holders wish to restructure in their entirety the terms and conditions applicable to the Original Dollar Loans (i) in the form of (A) long-term Dollar-denominated notes, (B) medium-term Dollar-denominated notes, and/or (C) subordinated Dollar-denominated notes, and (ii) in connection therewith, to the extent applicable, to receive (A) BODEN (as defined below), (B) Preferred Shares (as defined below), and/or (C) cash in Dollars, and to terminate all applicable obligations in connection with the Original Dollar Loan Agreements in accordance with Section 2.8 hereof;
WHEREAS, the Issuer is issuing Restructured Dollar Notes (as defined below);
NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree in accordance with the terms hereof and effective as of the Effective Date:
ARTICLE I
Definitions
Section 1.1 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
"Accounting Principles" means the accounting principles generally accepted in the Country, including without limitation the rules and regulations of the Central Bank, in effect from time to time, establishing accounting principles for financial institutions, including without limitation the Issuer, in the Country, applied on a consistent basis.
"Additional Amounts" means any amounts, other than principal and interest, owed by the Issuer to the Holders under the applicable Financing Agreements to which the Holders are a party.
"Adjusted Principal Amount" means with respect to any of the Original Dollar Loans, the sum of (i) the outstanding principal amount of the respective Original Dollar Loans as of April 30, 2002, plus (ii) accrued and unpaid interest on such respective Original Dollar Loans from and including May 1, 2002 to and including December 31, 2003 at a rate per annum equal to four and three-quarters percent (4.75%), without giving effect to any default interest provision provided for in the Original Dollar Agreements, as applicable.
"Affiliate" means a Person who directly or indirectly through one or more intermediaries Controls or is Controlled by, or is under common Control with, the Issuer.
"Affiliate Transactions" means any sale, lease, transfer, charge or other disposition or purchase of any Property, or any contract, loan, advance, other payment or guaranty, in each case made to or by, or entered into with or for the benefit of, any Affiliate, any officer, any director or any employee of the Issuer or any of its Subsidiaries (in any case, other than with any majority-owned, consolidated Subsidiary). In the case of any commercial contract, valuation of such Affiliate Transactions shall be done by calculating the net present value of the net cash payments expected to be paid to the Issuer or the relevant Subsidiary in respect of such transaction, discounted at a rate of fifteen percent (15%) per annum.
"Agent" has the meaning assigned to such term in the preamble hereof.
"Agent's Account" means the account of the Agent maintained by the Agent
with its office at 60 Wall Street, New York, New York 10005, ABA#: 021001033,
Account No. 01419647, Account Name: Banco de Galicia y Buenos Aires, Attention:
Dorothy Robinson, Reference: Banco de Galicia y Buenos Aires, or such other
account as the Agent shall specify in writing to the Holders and the Issuer.
"Agreement" has the meaning assigned to such term in the preamble hereof.
"Allocation Notice" has the meaning assigned to such term in Section 2.1(d) hereof.
"APE" means an out of court creditors' arrangement (Acuerdo Preventivo Extrajudicial) under, and in accordance with, Argentine Law No 24,522, as from time to time amended and/or supplemented.
"Applicable Law" means as to any Person, all applicable constitutions, treaties, laws, statutes, codes, ordinances, orders, decrees, directions, directives, rules and regulations of any Authority binding upon such Person or to which such Person is subject.
"Argentine Note" has the meaning set forth in Section 2.14(a).
"Argentine Taxes" has the meaning assigned to such term in Section 3.8(a) hereof.
"Assignment Agreement" means the assignment agreement to be entered into on or prior to the Effective Date and executed and delivered by and between EBA Holding S.A. and First Trust of New York, National Association, Representacion Permanente en Argentina, as trustee under the Trust Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Holder and an assignee and delivered to the Agent, substantially in the form of Exhibit B.
"Auditors" means Price Waterhouse & Co., or such other "Big Four" firm of internationally recognized independent public accountants, as the Issuer may from time to time appoint as its auditors.
"Authority" means any national, supranational, regional or local government or governmental, administrative, fiscal, judicial, legislative, regulatory, executive, government-owned (directly or indirectly) or government-controlled (directly or indirectly) body, department, commission, authority, tribunal, agency or entity, or central bank (or any Person, whether or not government owned and howsoever constituted or called, that exercises the functions of a central bank).
"Authorization" means any consent, registration, filing, agreement, notarization, certificate, license, approval, permit, authority or exemption from, by or with any Authority, whether given by express action or deemed given by failure to act within any specified time period, and all applicable corporate, creditors' and shareholders' approvals or consents.
"Available Capital" means the Issuer's "Responsabilidad Patrimonial Computable", as defined by the Central Bank in its Comunicacion "A" 2740 and its modifications and as reflected in the Issuer's most recent monthly report titled "Responsabilidad Patrimonial Computable" delivered to the Central Bank.
"B Loan Assignment Agreements" means, collectively, (i) all and each of the B Loan assignment agreements, dated on or prior to the Effective Date, executed and delivered by IFC and any participants of the Original IFC Loans who elect to enter into this Agreement or receive Restructured Bonds rather than be a participant in the Restructured IFC Loans and (ii) all and each of the B loan assignment agreements, dated on or prior to the Effective Date, executed and delivered by IIC and any participants of the Original IIC Loans who elect to enter into this Agreement or receive Restructured Bonds rather than be a participant in the Restructured IIC Loans.
"BODEN" means Dollar-denominated Bonos del Estado Nacional issued by the government of the Country pursuant to Decree 905/02 of the National Executive Branch thereof, which (i) are guaranteed by the full faith and credit of the government of the Country, (ii) bear interest at a floating rate payable semiannually in arrears on February 3 and August 3 of each year, and (iii) have scheduled payment of principal in equal installments, beginning on August 3, 2005 and ending on the final maturity date of August 3, 2012.
"BODEN Tender Offer" means the offering by the Issuer to make BODEN available up to a maximum amount of two hundred and fifty million Dollars ($250,000,000) in connection with the Restructuring, pursuant to which, inter alia, each of the Holders, as part of the Restructuring, may exchange, subject to prorationing as set forth in Schedule 2.1, all or part of the Adjusted Principal Amount of their Existing Bank Debt for BODEN, if any, in an amount specified in the Allocation Notices.
"BODEN Tender Offer Exchange Amount" means the amount of BODEN, if any, received by the Holders on the Effective Date, as specified in the Allocation Notices, in connection with the BODEN Tender Offer.
"Bond Exchange Offer" means the offer of the Issuer to holders of Existing Bonds to, inter alia, exchange Existing Bonds by the respective participating holders for Restructured Bonds.
"Business Day" means a day when banks are open for business in New York, New York and Buenos Aires, Argentina and, solely for the purpose of determining the applicable Interest Rate other than pursuant to clauses (i) and (ii) in the definition of LIBO Rate, London, England.
"Capital Adequacy Guidelines" means capital adequacy guidelines of the Central Bank, for Argentine banks and/or financial institutions in the Country, as they may be modified from time to time.
"Capital Expenditure" means, for any period: (i) any payment that is made during such period by a Person plus (ii) the aggregate amount of any Debt incurred by such Person during such period, in each case for (or in connection with) the rental, lease, purchase, construction or use of any Property the value or cost of which, under the Accounting Principles, should be capitalized or appear on such Person's balance sheet, without regard to the manner in which such payments (or the instrument pursuant to which they are made) are characterized by such Person or any other Person, including any costs in respect of maintenance capital expenditures.
"Capital Stock" means with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
"Cash Tender Offer" means the offering by the Issuer to make cash available up to a maximum amount of fifty-six million Dollars ($56,000,000) in connection with the Restructuring, under which, inter alia, each of the Holders, as part of the Restructuring, may exchange, subject to prorationing as set forth in Schedule 2.1, all or part of the Adjusted Principal Amount of their Existing Bank Debt for cash in the amounts specified in the Allocation Notices.
"Cash Tender Offer Payment Amount" means, with respect to each Holder, the amount payable to such Holder on the Effective Date, as notified by the Agent to each Holder in the Allocation Notice referred to in Section 2.1(d), in connection with such Holder's tendering of Existing Bank Debt in the Cash Tender Offer.
"CCC" means the Commodity Credit Corporation.
"Central Bank" means the Banco Central de la Republica Argentina (the Argentine Central Bank) and any other Authority that may replace or carry out any part of the monetary, regulatory and supervisory functions thereof.
"Certificate of Incumbency and Authority" means a certificate provided to the Agent by the Issuer in the form of Exhibit G.
"Change in Law" means (a) the adoption of any law, rule or regulation after the date of this Agreement or (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Authority after the date of this Agreement.
"Change of Control" means (i) any Person, other than one or more of the Escasany, Ayerza and Braun Family Members, (A) Controls or (B) owns, jointly or severally, directly or indirectly, any of the Capital Stock or any of the Voting Stock of EBA Holding S.A., (ii) the failure of EBA Holding S.A. to (A) Control and (B) own Voting Stock which (except for those matters for which Class "A" shares of Grupo Galicia have the right to only one vote) has the right to at least fifty-nine point forty-two percent (59.42%) of the total votes at shareholders meetings of Grupo Galicia; provided that such percentage may be reduced (without constituting a "Change of Control") to a percentage of Voting Stock which (except for those matters for which class "A" shares of Grupo Galicia have the right to only one vote) has the right to cast a majority of the votes at shareholders meetings of Grupo Galicia in the event that Grupo Galicia issues equity securities by reason of any transaction not prohibited under the terms of the Financing Agreements (including, without limitation, the issuance of equity by the Issuer), and/or (iii) the failure of Grupo Galicia to (A) Control the Issuer and (B) to own at least ninety-three percent (93%) of the Capital Stock and Voting Stock of the Issuer; provided that such percentage may be reduced (without constituting a "Change of Control") to sixty-five percent (65%) of the Capital Stock and Voting Stock of the Issuer in the event that the Issuer issues equity securities by reason of any transaction not prohibited under the terms of the Financing Agreements (including, without limitation, the issuance of equity by the Issuer). For the avoidance of doubt, any Change of Control shall not constitute an Event of Default under this Agreement to the extent that the conditions set forth in Section 7.2(o) hereof shall have been satisfied.
"Charter" means with respect to the Issuer, its "estatutos sociales".
"Communications" has the meaning assigned to such term in Section 9.1(b) hereof.
"Confidential Information" means information that the Issuer furnishes to the Agent or any Holder in a writing designated as confidential, but does not include any such information that is or becomes generally available to the public other than as a result of a breach by the Agent or any Holder of its obligations hereunder or that is or becomes available to the Agent or such Holder from a source other than the Issuer.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of Voting Stock, by contract or otherwise, and the verb "Control" and the terms "Controlling" and "Controlled" have the meanings correlative to the foregoing; provided, that any controller ("veedor") appointed by the Central Bank to oversee the operations of the Issuer shall not be construed as "Controlling" the direction of the management and/or policies of the Issuer.
"Country" means the Republic of Argentina.
"Debt" means for any Person,
(i) all Indebtedness for Borrowed Money of such Person;
(ii) all indebtedness created or arising under any conditional sales or other title retention agreement with respect to any Property acquired by such Person (including, without limitation, indebtedness under any such agreement which provides that the rights and remedies of the seller or lender thereunder in the event of default are limited to repossession or sale of such Property);
(iii) all obligations under leases which shall have been or should be, in accordance with the Accounting Principles, recorded as capitalized leases in respect of which such Person is liable as lessee;
(iv) all direct or indirect guaranties (including, without limitation, "avales") of such Person in respect of, and all obligations (contingent or otherwise) of such Person to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, any indebtedness referred to in clauses (i), (ii) or (iii) above of any other Person; and
(v) all indebtedness and obligations referred to in clauses (i),
(ii), (iii) or (iv) above secured by (or for which the holder
of such indebtedness or obligation has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
any Property of such Person, notwithstanding that such Person
has not assumed or become liable for the payment of such
indebtedness or obligation;
provided, however, that the term "Debt" shall not include (i) "Debt incurred by the Issuer or any of its Subsidiaries in the ordinary course of business" (hereinafter defined) but shall include any debt attributable to any Securitization (as used herein, the term "Debt incurred by the Issuer or any of its Subsidiaries in the ordinary course of business" shall mean and include, without limitation, any liability or obligation of the Issuer or any of its Subsidiaries with respect to, without limitation (A) any deposits with or funds collected by it (but not funds borrowed or raised by it), (B) any check, note, certificate of deposit, draft or bill of exchange, issued, accepted or endorsed by it in the ordinary course of its business, (C) any transaction in which it acts solely in a fiduciary or agency capacity, (D) any banker's acceptance, (E) any agreement, made by it in the ordinary course of its business, to purchase or repurchase securities or loans or currency or to participate in loans and (F) letters of credit to the extent they are issued by the Issuer or any of its Subsidiaries in the ordinary course of business); and (ii) any obligation of the Issuer, existing as of the date hereof, to repay or prepay (as approved by the Central Bank through Resolution 338/03) any amount due to Galicia Uruguay as of the date hereof in connection with any lineas de depositos borrowed by the Issuer through Banco de Galicia Grand Cayman Branch.
"Default" means any event or condition which constitutes an Event of Default or a Potential Event of Default.
"Default Interest Period" means any period during which any principal of
any Restructured Dollar Note that is due, or any other amount that is due under
this Agreement or any Note, is not paid, and each successive period of thirty
(30) days thereafter; provided, however, that such period shall commence as of
the date on which such principal or other amount became due and each succeeding
period thereof shall commence upon the expiration of the immediately preceding
period. For the avoidance of doubt, any such period (or any part thereof) shall
terminate on the date when all such overdue amounts are paid in full.
"Default Interest Rate" means for any Default Interest Period, a rate per annum equal to (i) the relevant Interest Rate, plus (ii) two percent (2%).
"Derivative Transaction" means any swap agreement, cap agreement, collar agreement, futures contract, forward contract or similar arrangement with respect to interest rates, currencies or commodity prices.
"Documentation Agent" has the meaning assigned to such term in the preamble hereof.
"Dollar Equivalent" means, with respect to (i) any monetary amount denominated in Dollars, such amount, (ii) any monetary amount denominated in Pesos, at any time for the determination thereof, the amount of Dollars obtained by converting Pesos into Dollars at the EMTA Rate or, if such rate shall not be available, at the rate publicly quoted by the Agent for the purchase of Dollars with Pesos as reported at the close of business two (2) Business Days prior to the date of determination by any of Banco Rio de la Plata S.A., Deutsche Bank S.A. and the branch of Citibank, N.A. in the Country (or if any of such entities shall not report such quotations, by any of HSBC Bank Argentina S.A., Bankboston N.A. Buenos Aires Branch or JP Morgan Chase Bank Buenos Aires Branch, respectively), and (iii) a currency other than Dollars or Pesos, at any time for the determination thereof, the amount of Dollars obtained by converting such other currency into Dollars at the average of the spot rates for the purchase of Dollars with such other currency, as publicly quoted by the Agent in the normal course of business at approximately 11:00 a.m. (New York City time), on the date of determination thereof specified herein or, if the date of determination thereof is not otherwise specified herein, in each case on the date two (2) Business Days prior to such determination.
"Dollars" or "$" or "US$" means the lawful currency of the United States of America.
"Economic Group" has the same meaning as "Grupo Economico" as defined by the Central Bank in Comunicacion "A" 2140, as it may be modified from time to time.
"Effective Date" has the meaning assigned to such term in Section 5.1 hereof.
"Effective Date Interest Amount" means with respect to any of the Original Dollar Loans, an amount equal to the accrued and unpaid interest through and including April 30, 2002 on the principal amount of such Original Dollar Loans being exchanged for Restructured Dollar Notes on the Effective Date minus any portion thereof due and payable but paid pursuant to the other Restructured Credit Agreements on the Effective Date at a rate per annum determined pursuant to the applicable Original Dollar Loan Agreement, in each case immediately prior to giving effect to any of the Restructured Credit Agreements and without taking into account any default interest provision provided for therein or herein.
"Election Notice" has the meaning assigned to such term in Section 5.1(a)(ii) hereof.
"EMTA" means the Emerging Markets Trading Association.
"EMTA Rate" means the rate of exchange used for the purchase of Dollars with Pesos as quoted by the EMTA on its website at www.emta.org/aservices (or such other worldwide web page of EMTA where the quotation is publicly published if this web address changes) two (2) Business Days prior to the date of determination, at 2:00 p.m. (Buenos Aires time).
"Entitled Person" has the meaning assigned to such term in Section 9.12 hereof.
"Equity Participation Tender Offer" means the offering by the Issuer to make available (i) medium-term notes due 2010 up to a maximum amount of three hundred million Dollars ($300,000,000) and (ii) up to one hundred and forty-nine million (149,000,000) Preferred Shares (or Preferred Shares and the cash equivalent, if any) in connection with the Restructuring, under which each Holder, as part of the Restructuring, may exchange, subject to the prorationing set forth in Schedule 2.1, all or part of the Adjusted Principal Amount of its Existing Bank Debt for (x) Medium-Term Dollar Notes and (y) Preferred Shares (or Preferred Shares and cash equivalent, if any) in the respective amounts specified in the Allocation Notices.
"Escasany, Ayerza and Braun Family Members" means any members of the Escasany, Ayerza and Braun families who are holders of Class "A" Shares of EBA Holding S.A., or their heirs, descendants and spouses who receive shares as a result of dissolution of marriage, which holders of class "A" shares and the Fundacion Banco de Galicia y Buenos Aires S.A. are (to the extent applicable) identified in the shareholders' meeting minutes, Number 1, of EBA Holding S.A., dated October 12, 1999, and registered in the Registro Publico de Comercio under number 18,036, Libro VIII, Tomo de Sociedades por Acciones, Numero Correlativo IGJ 1670663, the names of which are identified in Schedule II.
"Event of Default" has the meaning assigned to such term in Section 7.2.
"Exchange Agent" means Citibank, N.A., a national bank organized and existing under the laws of the United States of America.
"Existing Bank Debt" means the Debt of the Issuer described under "Existing Bank Debt" in Part B of Schedule I.
"Existing Bonds" means all and each of the notes (obligaciones negociables) issued by, and representing Debt of, the Issuer and described under "Existing Bonds" in Part A of Schedule I.
"Existing Liens" means all and each of the Liens on the Property of the Issuer or any of its Subsidiaries outstanding immediately before and on the Effective Date, as set forth on Schedule 4.18 hereto.
"FFRE" means Fondo Fiduciario para la Reconstruccion de Empresas (Fiduciary Fund for the Restructuring of Companies).
"Financial Entities Act" means Argentine Law N(degree) 21,526, as amended and/or supplemented from time to time.
"Financing Agreements" means, collectively, (i) this Agreement; and (ii) the Notes.
"Fiscal Year" means the accounting year of the Issuer commencing each year on January 1 and ending on the following December 31, or such other accounting period of the Issuer as the Issuer may from time to time designate as its accounting year.
"Fitch" means Fitch, Inc. and any successor thereto.
"Fixed Rate" means either (i) the Long-Term Dollar Fixed Rate, (ii) the Medium-Term Dollar Fixed Rate, or (iii) the Subordinated Dollar Fixed Rate, as the case may be.
"Fixed Rate Note" means any Restructured Dollar Note bearing interest at a Fixed Rate.
"Foreign Currency" means any currency other than Pesos.
"Foreign Currency Assets" means all Foreign Currency amounts payable to the Issuer and all rights to receive revenues and other payments that are required to be paid to the Issuer in a Foreign Currency and all liquid assets denominated in a Foreign Currency.
"Foreign Currency Debt" means Debt that is: (i) denominated in a Foreign Currency; or (ii) payable at the option of the payee in a Foreign Currency; and for purposes of this definition, an obligation is deemed to be denominated in a Foreign Currency if the terms thereof or of any Applicable Law of the Country or regulation of the Central Bank requires that payment thereof will be made to the holder thereof in such Foreign Currency by the Issuer.
"Galicia Uruguay" means Banco Galicia Uruguay S.A.
"Grupo Galicia" means Grupo Financiero Galicia S.A.
"Grupo Galicia Agreement" means that certain agreement to be entered into on or prior to the Effective Date among Grupo Galicia and IFC, IIC, CCC and the Agent as the agent under this Agreement and the New Trade Debt Agreement.
"Headquarter Offices" means, to the extent that any of the real estate owned by the Issuer set forth in Part A to Schedule V shall be used as the central headquarters of the Issuer, the real estate used by the Issuer and listed in Part B to Schedule V, and to the extent not so used by the Issuer as its central headquarters, the real estate listed in Part A and Part B thereto.
"Holders" has the meaning assigned to such term in the preamble hereof.
"Holder Address" means, with respect to each Holder, such Holder's address specified on Schedule III hereto or in the Assignment and Acceptance pursuant to which it became a Holder, or such other office of such Holder as such Holder may from time to time specify to the Issuer and the Agent.
"IFC" means the International Finance Corporation.
"IIC" means the Inter - American Investment Corporation.
"Increased Costs" means any of the amounts described in Section 3.6 and certified in an Increased Costs Certificate.
"Increased Costs Certificate" has the meaning assigned to such term in
Section 3.6(c).
"Indebtedness for Borrowed Money" means all obligations of any Person to pay or repay:
(i) borrowed money;
(ii) any bonds, debentures, notes, loan stock, commercial paper, acceptance credits, bills, promissory notes or similar instruments drawn, accepted, endorsed or issued by such Person (including without limitation obligations incurred in connection with the acquisition of Property);
(iii) any credit to such Person from a supplier of Property or services under any installment purchase, deferred purchase price or other similar arrangement with respect to Property or services (except trade accounts that are incurred and payable in the ordinary course of business);
(iv) or reimburse any other Person with respect to amounts paid by such other Person under a letter of credit, bankers' acceptance, surety bond or similar instrument;
(v) amounts raised under any transaction having the financial effect of a borrowing and which would be classified as a borrowing (and not as an off-balance sheet financing) under the Accounting Principles, or as the case may be other accounting principles applicable to such Person including, without limitation, under leases or similar arrangements entered into primarily as a means of financing the acquisition of the asset leased;
(vi) the amount of such Person's obligations due and payable pursuant to Derivative Transactions entered into in connection with other Debt of such Person; provided, however, that for the avoidance of double accounting and for so long as any such Derivative Transaction is in effect, that Debt will be computed as Indebtedness for Borrowed Money in accordance with the terms of the relevant Derivative Transaction and not the terms of the agreement providing for that Debt when it was incurred; and
(vii) any premium payable on a mandatory redemption or replacement of the foregoing obligations, when and as applicable.
"Indemnitee" has the meaning assigned to such term in Section 9.3(b).
"Indemnified Costs" has the meaning assigned to such term in Section 8.5(a).
"Interest Determination Date" means, except as otherwise provided in
Section 3.5, the second (2nd) Business Day before the first (1st) day of each
Interest Period
"Interest Payment Date" means January 1 and July 1 of each year.
"Interest Period" means each period of six (6) months from and including each Interest Payment Date to but not including the next following Interest Payment Date; provided that the first (1st) Interest Period shall be the period from and including January 1, 2004 to but not including July 1, 2004.
"Interest Rate" means, collectively, (i) the Long-Term Dollar Fixed Rate,
(ii) the Long-Term Dollar LIBOR Note Interest Rate, (iii) the Medium-Term Dollar
Fixed Rate, (iv) the Medium-Term Dollar LIBOR Note Interest Rate, (v) the
Subordinated Dollar Fixed Rate, and (vi) the Subordinated Dollar LIBOR Note
Interest Rate.
"Investment" means any loan or advance to any Person other than in the ordinary course of business in accordance with past banking practices, any purchase or other acquisition of any Capital Stock (other than acquisitions pursuant to the exercise of preemptive rights or accretion rights in order to prevent dilution of the Issuer's equity ownership percentage in Permitted Businesses) or Debt or the assets comprising a division or business unit or a substantial part or all of the business of such Person, any capital contribution to such Person or any other direct or indirect investment in such Person, including, without limitation, any acquisition by way of a merger or consolidation and any arrangement pursuant to which the investor incurs Debt, but excluding the obligation of the Issuer to transfer BODEN (or any other instrument permitted under Decree 2167/02 as of the date hereof) to Galicia Uruguay (such BODEN having been received by the Issuer from the Central Bank as compensation for assets of the Issuer converted into Pesos and booked at Galicia Uruguay pursuant to Article 6 of Decree 2167/02) and any obligation of the Issuer, existing as of the date hereof, to repay or prepay (as approved by the Central Bank through Resolution 338/03) any amount due to Galicia Uruguay as of the date hereof in connection with any lineas de depositos borrowed by the Issuer through Banco de Galicia Grand Cayman Branch.
"Issuer" has the meaning assigned to such term in the preamble hereof.
"Issuer's Successor Corporation" has the meaning assigned to such term in
Section 6.4(b) hereof.
"LIBO Rate" means, with respect to any Interest Period pertaining to a LIBOR Note, the British Bankers' Association ("BBA") interbank offered rates for deposits in Dollars which appears on the relevant page of Telerate Service (currently 3750 or, if not available, on the relevant page of any other services (such as Reuters Service or Bloomberg Financial Markets) that displays BBA rates at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period), as the rate for Dollar deposits with a maturity comparable to such Interest Period. If for any Interest Period, the Agent cannot determine the LIBO Rate by reference to Telerate Service or any other service that displays BBA rates, the Agent shall notify the Issuer and the Holders and the Agent shall instead determine the "LIBO Rate" as follows: (i) on the second Business Day before the beginning of the relevant Interest
Period by calculating the arithmetic mean (rounded upward to the nearest three
(3) decimal places) of the offered rates advised to the Agent on or around 11:00
a.m., London time, for deposits in Dollars by any four (4) major banks active in
Dollars in the London interbank market, selected by the Agent; provided that if
less than four (4) quotations of such offered rates are received, the Agent may
rely on the quotations of such offered rates so received if not less than two
(2) thereof have been received; or (ii) if less than two (2) quotations are
received from the banks in London in accordance with subsection (i) above, on
the first (1st) day of the relevant Interest Period by calculating the
arithmetic mean (rounded upward to the nearest three (3) decimal places) of the
offered rates advised to the Agent on or around 11:00 a.m., New York time, for
loans in Dollars by a major bank or banks in New York, New York selected by the
Agent.
"LIBOR Note" means any Restructured Dollar Note bearing interest at the LIBO Rate.
"Lien" means any lien, mortgage, charge, security interest, pledge, collateral trust agreement, repurchase agreement, hypothecation, encumbrance of any kind, fiduciary transfer or assignment by way of collateral, including without limitation any equivalent created or arising under the laws of the Country or the laws of the State of New York and any transfer in a securitization transaction.
"Long-Term Bonds" means the Dollar-denominated notes (obligaciones negociables) due 2014 to be issued by the Issuer under, and pursuant to the terms and conditions applicable to, the Restructuring.
"Long-Term Debt" means, collectively, (i) the Long-Term Loans and (ii) the Long-Term Bonds.
"Long-Term Dollar Applicable Margin" has the meaning assigned to such term in Section 2.1(e).
"Long-Term Dollar Fixed Rate" means, for any Interest Period (i) three percent (3%) per annum for the period from and including January 1, 2004 through December 31, 2004, (ii) four percent (4%) per annum for the period from and including January 1, 2005 through December 31, 2005, (iii) five percent (5%) per annum for the period from and including January 1, 2006 through December 31, 2006, (iv) six percent (6%) per annum for the period from and including January 1, 2007 through December 31, 2007, and (v) seven percent (7%) per annum thereafter.
"Long-Term Dollar Fixed Rate Holder" means, at any time, any Holder holding any of the Long-Term Dollar Fixed Rate Notes.
"Long-Term Dollar Fixed Rate Note" means any long-term Dollar denominated note under this Agreement bearing interest at the Long-Term Dollar Fixed Rate or, as the context requires, the principal amount of such note outstanding from time to time.
"Long-Term Dollar Fixed Rate Tranche" means the tranche of Long-Term Dollar Fixed Rate Notes.
"Long-Term Dollar Holders" means, collectively, (i) the Long-Term Dollar Fixed Rate Holders and (ii) the Long-Term Dollar LIBOR Holders.
"Long-Term Dollar LIBOR Holder" means, at any time, any Holder holding any of the Long-Term Dollar LIBOR Notes.
"Long-Term Dollar LIBOR Note" means any long-term Dollar denominated note under this Agreement bearing interest at the Long-Term Dollar LIBOR Note Interest Rate or, as the context requires, the principal amount of such note outstanding from time to time.
"Long-Term Dollar LIBOR Note Interest Rate" for any Interest Period, the rate at which interest is payable on the Long-Term Dollar LIBOR Notes during that Interest Period, determined in accordance with Section 3.3.
"Long-Term Dollar LIBOR Tranche" means the tranche of Long-Term Dollar LIBOR Notes.
"Long-Term Dollar Notes" means, collectively, (i) the Long-Term Dollar Fixed Rate Notes and (ii) the Long-Term Dollar LIBOR Notes.
"Long-Term Dollar Maturity Date" means January 1, 2014.
"Long-Term Loans" means, collectively, (i) the Restructured IFC Long-Term Loans, (ii) the Long-Term Dollar Notes, (iii) the Restructured IIC Long-Term Loans, and (iv) the Restructured CCC Long-Term Loans.
"Majority Long-Term Dollar Fixed Rate Holders" means, at any time, the Long-Term Dollar Fixed Rate Holders whose outstanding Long-Term Dollar Fixed Rate Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Long-Term Dollar Fixed Rate Notes at such time.
"Majority Long-Term Dollar LIBOR Holders" means, at any time, the Long-Term Dollar LIBOR Holders whose outstanding Long-Term Dollar LIBOR Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Long-Term Dollar LIBOR Notes at such time.
"Majority Long-Term Dollar Holders" means, at any time, the Long-Term Dollar Holders whose outstanding Long-Term Dollar Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Long-Term Dollar Notes at such time.
"Majority Medium-Term Dollar Fixed Rate Holders" means, at any time, the Medium-Term Dollar Fixed Rate Holders whose outstanding Medium-Term Dollar Fixed Rate Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Medium-Term Dollar Fixed Rate Notes at such time.
"Majority Medium-Term Dollar LIBOR Holders" means, at any time, the Medium-Term Dollar LIBOR Holders whose outstanding Medium-Term Dollar LIBOR Notes at such time
represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Medium-Term Dollar LIBOR Notes at such time.
"Majority Medium-Term Dollar Holders" means, at any time, the Medium-Term Dollar Holders whose outstanding Medium-Term Dollar Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Medium-Term Dollar Notes at such time.
"Majority Subordinated Dollar Fixed Rate Holders" means, at any time, the Subordinated Dollar Fixed Rate Holders whose outstanding Subordinated Dollar Fixed Rate Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Subordinated Dollar Fixed Rate Notes at such time.
"Majority Subordinated LIBOR Holders" means, at any time, the Subordinated Dollar LIBOR Holders whose outstanding Subordinated Dollar LIBOR Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Subordinated Dollar LIBOR Notes at such time.
"Majority Subordinated Dollar Holders" means, at any time, the Subordinated Dollar Holders whose outstanding Subordinated Dollar Notes at such time represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Subordinated Dollar Notes at such time.
"Management" has the meaning assigned to such term in Section 6.4(l)(ii).
"Market Compensation" has the meaning assigned to such term in Section 6.4(l)(ii).
"Material Adverse Effect" means a material adverse effect on:
(i) the condition (financial or otherwise), operations, Property, business affairs or business prospects of the Issuer and its Subsidiaries taken as a whole;
(ii) the validity or enforceability of any of the Financing Agreements;
(iii) the rights and remedies of, or benefits available to, any party (other than the Issuer) under any of the Financing Agreements; or
(iv) the ability of the Issuer to perform its obligations under this Agreement or any other Financing Agreement in accordance with the terms hereof or thereof.
"Material Indebtedness" has the meaning assigned to such term in Section 7.2(d).
"Medium-Term Bonds" means the Dollar-denominated notes (obligaciones negociables) due 2010 to be issued by the Issuer under, and pursuant to the terms and conditions applicable to, the Restructuring.
"Medium-Term Debt" means, collectively, (i) the Medium-Term Loans and (ii) the Medium-Term Bonds.
"Medium-Term Dollar Fixed Rate" means the interest rate on the Medium-Term Dollar Fixed Rate Notes specified in Section 2.1(f).
"Medium-Term Dollar Fixed Rate Holder" means, at any time, any Holder holding any of the Medium-Term Dollar Fixed Rate Notes.
"Medium-Term Dollar Fixed Rate Note" means any medium-term Dollar denominated note under this Agreement bearing interest at the Medium-Term Dollar Fixed Rate or, as the context requires, the principal amount of such note outstanding from time to time.
"Medium-Term Dollar Fixed Rate Tranche" means the tranche of Medium-Term Dollar Fixed Rate Notes.
"Medium-Term Dollar Holders" means, collectively, (i) the Medium-Term Dollar Fixed Rate Holders and (ii) the Medium-Term Dollar LIBOR Holders.
"Medium-Term Dollar LIBOR Holder" means, at any time, any Holder holding any of the Medium-Term Dollar LIBOR Notes.
"Medium-Term Dollar LIBOR Note" means any medium-term Dollar denominated note under this Agreement bearing interest at the Medium-Term Dollar LIBOR Note Interest Rate or, as the context requires, the principal amount of such note outstanding from time to time.
"Medium-Term Dollar LIBOR Note Interest Rate" for any Interest Period, the rate at which interest is payable on the Medium-Term Dollar LIBOR Notes during that Interest Period, determined in accordance with Section 3.3.
"Medium-Term Dollar LIBOR Tranche" means the tranche of Medium-Term Dollar LIBOR Notes.
"Medium-Term Dollar Notes" means, collectively, (i) the Medium-Term Dollar Fixed Rate Notes and (ii) the Medium-Term Dollar LIBOR Notes.
"Medium-Term Dollar Maturity Date" means January 1, 2010.
"Medium-Term Loans" means, collectively, (i) the Restructured IFC Medium-Term Loans, (ii) the Medium-Term Dollar Notes, (iii) the Restructured IIC Medium-Term Loans, and (iv) the Restructured CCC Medium-Term Loans.
"Merging Entity" has the meaning assigned to such term in Section 6.4(b) hereof.
"Moody's" means Moody's Investors Service, Inc., and any successor thereto.
"Net Cash Proceeds" means, in connection with any issuance or incurrence of Debt, issuance of Capital Stock or other equity security, or sale, transfer, lease or other disposition of
Property, as the case may be, the cash proceeds received from such issuance, incurrence, sale, transfer, lease, or other disposition, net of attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and commissions and other customary fees and expenses actually incurred in connection therewith.
"New Trade Debt" means, collectively, all of the trade debt provided for in the New Trade Debt Agreement.
"New Trade Debt Agreement" means the trade credit agreement dated as of April 27, 2004, by and among the Issuer, the agent party thereto, the documentation agent party thereto, the letter of credit bank party thereto and the lenders party thereto.
"Note" has the meaning assigned to such term in Section 2.14(f) hereof.
"Notice" has the meaning assigned to such term in Section 9.1(c).
"Obligation" means, with respect to any Person, any payment, performance
or other obligation of such Person of any kind, including, without limitation,
any liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 7.2(g),
(h), (i) or (j). Without limiting the generality of the foregoing, the
Obligations of the Issuer under the Transaction Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by the Issuer under any
Transaction Document and (b) the obligation of the Issuer to reimburse any
amount in respect of any of the foregoing that any Holder, in its sole
discretion, may elect to pay or advance on behalf of the Issuer.
"Offering Memorandum" the Issuer's offering memorandum dated November 5, 2003, and related pricing supplement dated December 23, 2003, as further supplemented on March 18, 2004, and as further supplemented on April 6, 2004, relating to the Bond Exchange Offer.
"Open Credit Exposure Ratio" means at any calculation date: (i)(A) the total principal amounts outstanding of any loans and other banking and credit facilities (including contingent liabilities under guarantees and documentary credits) granted by the Issuer which are not classified as "normal" (corporate and individual loans), "con seguimiento especial" (corporate loans) and "cumplimiento inadecuado" (individual loans) (and any other category of loans that is similar in scope that replaces the same after the date hereof, as determined by the Central Bank) (as reflected in the Issuer's most recent "Estado de Situacion de Deudores" delivered to the Central Bank), minus (B) the total "Previsiones por Riesgo de Incobrabilidad" as reflected in the Issuer's most recent unaudited quarterly accounts or audited quarterly accounts (in the case of the last quarter of any Fiscal Year); divided by (ii) Available Capital.
"Original Dollar Loan Agreements" means, collectively, all and each of the loan agreements listed on Schedule IV entered into by the Issuer and each of the Holders, directly or indirectly, respectively pursuant to which, and subject to the terms and conditions therein set
forth, each of the respective Holders granted to the Issuer certain Dollar-denominated loans that are subject to the Restructuring.
"Original Dollar Loans" means, collectively, all and each of the Dollar-denominated loans made by each of the Holders, directly or indirectly, to the Issuer pursuant to the provisions of each of the Original Dollar Loan Agreements according to their original terms and conditions and prior to the restructuring thereof set forth in this Agreement.
"Original IFC Loan Agreements" means, collectively, (i) the investment agreement, dated as of July 19, 1996, and amended and restated as of July 2, 1999 and (ii) the credit line agreement dated as of January 25, 1999, each entered into by the Issuer and IFC.
"Original IFC Loans" means, collectively, all and each of the loans made by IFC to the Issuer pursuant to the provisions of the Original IFC Loan Agreements according to their respective original terms and conditions and prior to the restructuring set forth in the Restructured IFC Loan Agreements.
"Original IIC Loan Agreements" means, collectively, (i) the third amended
and restated financial intermediary loan agreement dated as of June 23, 1997 and
(ii) the financial intermediary loan agreement dated as of December 21, 1998,
each entered into by the Issuer and IIC.
"Original IIC Loans" means, collectively, all and each of the loans made by IIC to the Issuer pursuant to the provisions of the Original IIC Loan Agreements according to their respective original terms and conditions and prior to the restructuring set forth in the Restructured IIC Loan Agreements.
"Participant" has the meaning assigned to such term in Section 9.4(f).
"Participation Agreements" means, collectively, (i) the participation agreements, each entered into on or before the Effective Date, executed and delivered by and between IFC and the relevant participants to the Restructured IFC Loan Agreements and (ii) the participation agreements, each entered into on or before the Effective Date, executed and delivered by and between IIC and the relevant participants to the Restructured IIC Loan Agreements.
"Permitted Businesses" means the business of banking, leasing, credit cards, brokerage, investment, insurance or similar financial products or any product or service closely related thereto.
"Permitted Liens" means:
(i) Existing Liens;
(ii) any Lien on any asset securing Debt incurred or assumed solely for the purpose of financing all or any part of the cost of acquiring such asset, which Lien attached to such asset concurrently with or within ninety (90) days after the acquisition thereof; provided, however, such Lien may extend only to such asset;
(iii) any Lien required to be created in connection with special lines of credit (lineas especiales de credito), advances (adelantos) or rediscount loans (redescuentos) obtained in accordance with applicable rules and regulations of the Central Bank or other applicable rules and regulations governing such special lines of credit, advances or rediscount loans. "Lineas especiales de credito" means those lines of credit which are granted to the Issuer by or through local or foreign governmental entities (including, without limitation, the Central Bank, Banco de Inversion y Comercio Exterior S.A. ("BICE"), FFRE, Seguros de Depositos S.A. ("Sedesa"), development banks and export credit agencies) or international multilateral lending organizations (including, without limitation, the International Bank for Reconstruction and Development and the Inter-American Development Bank), directly or indirectly, in order to promote or develop the Argentine economy; "redescuentos" means those rediscount loans (including but not limited to loans granted in response to circumstances of short-term, extraordinary illiquidity) which are granted by the Central Bank, BICE, FFRE, Sedesa, and by other Argentine government entities, including the ones granted pursuant to section 16 of Argentine Law No. 25,780 during the emergency period set forth under Argentine public emergency law No. 25,561, and those rediscount loans and overdrafts which are granted by the Central Bank to financial entities going through liquidity and solvency problems, including without limitation those entities subject to a restructuring process as contemplated in Section 35 bis of the Financial Entities Act;
(iv) any Lien on any Property existing thereon at the time of acquisition of such Property and not created in connection with such acquisition;
(v) any Lien on any Property securing an extension, renewal, refinancing or refunding of Debt secured by any Lien referred to in (i), (ii) or (iv) above; provided, that such new Lien is limited to the Property which was subject to the prior Lien immediately before such extension, renewal, refinancing or refunding; and provided further that the principal amount of Debt secured by the prior Lien immediately before such extension, renewal, refinancing or refunding is not increased;
(vi) any Lien in the form of a Tax or other statutory lien or any other Lien arising by operation of law; provided, however, that any such Lien shall be discharged within thirty (30) days after the date it is created or arises (unless contested in good faith by the Issuer and for which adequate reserves have been established to the extent required by the Accounting Principles, and which shall be discharged within thirty (30) days after final adjudication); or
(vii) any Lien granted in a Securitization; provided that the Net
Cash Proceeds thereof shall be applied in accordance with
Section 3.2.
"Person" means any natural person, corporation, company, partnership, firm, voluntary association, joint venture, trust, business trust, joint stock company, limited liability company, unincorporated association, unincorporated organization, Authority or any other entity whether acting in an individual, fiduciary or other capacity and whether or not having a separate legal personality.
"Pesos" means the lawful currency of the Country.
"Plan" means the "Galicia Capitalization and Liquidity Plan" (as supplemented on March 22, 2002, and April 11, 2002), submitted by the Issuer to the Central Bank, in accordance with the Financial Entities Act, on March 21, 2002.
"Potential Event of Default" means any event or circumstance which would, with notice, lapse of time, the making of a determination, or any combination thereof, become an Event of Default.
"Preferred Shares" means preferred shares of Grupo Galicia issued pursuant to the equity prospectus dated April 26, 2004 which will be automatically converted into class "B" shares of Grupo Galicia on the first (1st) anniversary date of their issuance or, if earlier, on the occurrence of a change of control of Grupo Galicia.
"Process Agent" has the meaning set forth in Section 9.10(a).
"Property" means any asset, revenue or other property, whether tangible or intangible, real or personal, including without limitation any right to receive income.
"Purchase Agreement" means the purchase agreement to be entered into on or prior to the Effective Date and executed and delivered by and between the Issuer and Grupo Galicia.
"Rating Agencies" means Fitch, Moody's and/or Standard & Poor's, as the context requires.
"Register" has the meaning set forth in Section 9.4(d).
"Registration Rights Agreement" means the registration rights agreement to be dated as of the Effective Date and executed and delivered by Grupo Galicia.
"Related Parties" means, with respect to any specified Person, (i) such Person's directors, officers, employees and agents of such Person, and (ii) such Person's Affiliates and the directors and officers of and such Person's Affiliates.
"Required Holders" means the Holders whose outstanding Restructured Dollar Notes represent more than fifty percent (50%) of the aggregate outstanding principal amount of the Restructured Dollar Notes.
"Requirement of Law" has the meaning set forth in Section 3.7.
"Responsible Officer" means, with respect to any Person, the Chairman, Chief Executive Officer, Chief Financial Officer, President, Senior Executive Vice President, Vice President, Treasurer or Assistant Treasurer of that Person.
"Restricted Payment" has the meaning set forth in Section 6.4(c).
"Restructured Bonds" means, collectively, (i) the Long-Term Bonds, (ii) the Medium-Term Bonds, and (iii) the Subordinated Bonds.
"Restructured CCC Loan Agreement" means the dollar loan agreement, dated as of April 27, 2004, between the Issuer and CCC as initial sole lender and agent.
"Restructured CCC Loans" means, collectively, (i) the Restructured CCC Long-Term Loans, (ii) the Restructured CCC Medium-Term Loans and (iii) the Restructured CCC Subordinated Loans.
"Restructured CCC Long-Term Loans" means all and each of the long-term loans provided for in the Restructured CCC Loan Agreement.
"Restructured CCC Medium-Term Loans" means all and each of the medium-term loans provided for in the Restructured CCC Loan Agreement.
"Restructured CCC Subordinated Loans" means all and each of the subordinated loans provided for in the Restructured CCC Loan Agreement.
"Restructured Credit Agreements" means, collectively, (i) this Agreement,
(ii) the Restructured IFC Loan Agreements, (iii) the Restructured IIC Loan
Agreements, (iv) the Restructured CCC Loan Agreement and (v) the New Trade Debt
Agreement.
"Restructured Debt" means, collectively, (i) the Restructured IFC Loans,
(ii) the Restructured Dollar Notes, (iii) the Restructured IIC Loans, (iv) the
Restructured CCC Loans, (v) the Restructured Bonds and (vi) the New Trade Debt.
"Restructured Dollar Notes" means, collectively, (i) the Long-Term Dollar Notes, (ii) the Medium-Term Dollar Notes, (iii) the Subordinated Dollar Notes and (iv) the Subordinated Dollar PIK Notes.
"Restructured IFC Loan Agreements" means, collectively, (i) the Restructured IFC Long-Term Loan Agreement; (ii) the Restructured IFC Medium-Term Loan Agreement and (iii) the Restructured IFC Subordinated Loan Agreement.
"Restructured IFC Loans" means, collectively, (i) the Restructured IFC Long-Term Loans, (ii) the Restructured IFC Medium-Term Loans, and (iii) the Restructured IFC Subordinated Loans.
"Restructured IFC Long-Term Loan Agreement" means the amended and restated long-term loan agreement dated as of April 27, 2004, between the Issuer and IFC.
"Restructured IFC Long-Term Loans" means all and each of the loans provided for in the Restructured IFC Long-Term Loan Agreement.
"Restructured IFC Medium-Term Loan Agreement" means the amended and restated medium-term loan agreement dated as of April 27, 2004, between the Issuer and IFC.
"Restructured IFC Medium-Term Loans" means all and each of the loans provided for in the Restructured IFC Medium-Term Loan Agreement.
"Restructured IFC Subordinated Loan Agreement" means the amended and restated subordinated loan agreement dated as of April 27, 2004, between the Issuer and IFC.
"Restructured IFC Subordinated Loans" means all and each of the loans provided for in the Restructured IFC Subordinated Loan Agreement.
"Restructured IIC Loan Agreements" means, collectively, (i) the Restructured IIC Long-Term Loan Agreement; (ii) the Restructured IIC Medium-Term Loan Agreement and (iii) the Restructured IIC Subordinated Loan Agreement.
"Restructured IIC Loans" means, collectively, (i) the Restructured IIC Long-Term Loans, (ii) the Restructured IIC Medium-Term Loans, and (iii) the Restructured IIC Subordinated Loans.
"Restructured IIC Long-Term Loan Agreement" means the amended and restated long-term loan agreement dated as of April 27, 2004, between the Issuer and IIC.
"Restructured IIC Long-Term Loans" means all and each of the loans provided for in the Restructured IIC Long-Term Loan Agreement.
"Restructured IIC Medium-Term Loan Agreement" means the amended and restated medium-term loan agreement dated as of April 27, 2004, between the Issuer and IIC.
"Restructured IIC Medium-Term Loans" means all and each of the loans provided for in the Restructured IIC Medium-Term Loan Agreement.
"Restructured IIC Subordinated Loan Agreement" means the amended and restated subordinated loan agreement dated as of April 27, 2004, between the Issuer and IIC.
"Restructured IIC Subordinated Loans" means all and each of the loans provided for in the Restructured IIC Subordinated Loan Agreement.
"Restructuring" has the meaning assigned to such term in the recitals hereof.
"SEC" means the United States Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of 1933, as amended.
"Securitization" means the sale, assignment or other transfer to a third party by the Issuer or any Significant Subsidiary of any of the Issuer's or such Significant Subsidiary's present or
future revenues or other Property where the proceeds of any debt incurred by such third-party or further transfer by such third party of such revenues or other Property is paid (net of expenses and reserves) to the Issuer or such Significant Subsidiary as purchase price or consideration for such revenues or other Property.
"Senior Debt" means, collectively, (i) the Long-Term Debt and (ii) the Medium-Term Debt.
"Senior Dollar Notes" means, collectively, (i) the Long-Term Dollar Notes and (ii) the Medium-Term Dollar Notes.
"Significant Subsidiary" means any Subsidiary of the Issuer in which the Issuer's and its other Subsidiaries' proportionate share of the total assets (after intercompany eliminations) of the Subsidiary exceeds five percent (5%) of the total assets of the Issuer and its Subsidiaries consolidated as of the end of the most recently completed Fiscal Year; provided that such percentage shall be eleven percent (11%) in the case of Subsidiaries not organized under the laws of the Country.
"Signing Date" means April 27, 2004.
"Single Group Exposure Ratio" means at any calculation date: (i) the aggregate amount of loans and any other credit facilities (including without limitation contingent liabilities under guarantees and documentary credits) granted by the Issuer to any Person that is a member of an Economic Group as reflected in the Issuer's most recent unaudited quarterly accounts or audited quarterly accounts (in the case of the last quarter of any Fiscal Year); divided by (ii) the Available Capital.
"SOX Act" means the U.S. Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder from time to time.
"Standard & Poor's" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, or any successor thereto.
"Subordinated Bonds" means the Dollar-denominated notes (obligaciones negociables) due 2019 to be issued by the Issuer under, and pursuant to the terms and conditions applicable to, the Restructuring.
"Subordinated Debt" means, collectively, (i) the Subordinated Loans and
(ii) the Subordinated Bonds.
"Subordinated Dollar Applicable Margin" has the meaning assigned to such term in Section 2.1(g).
"Subordinated Dollar Fixed Rate" means, for any Interest Period, (i) six percent (6%) per annum for the period from and including January 1, 2004 to but not including January 1, 2014, and (ii) eleven percent (11%) per annum at any time thereafter.
"Subordinated Dollar Fixed Rate Holder" means, at any time, any Holder holding any of the Subordinated Dollar Fixed Rate Notes.
"Subordinated Dollar Fixed Rate Note" means any subordinated Dollar denominated note under this Agreement (other than the Subordinated Dollar PIK Notes) bearing interest in cash at the Subordinated Dollar Fixed Rate plus interest in the form of Subordinated Dollar Fixed Rate PIK Note at the Subordinated Dollar PIK Rate or, as the context requires, the principal amount of such note outstanding from time to time.
"Subordinated Dollar Fixed Rate PIK Note" means a Subordinated Dollar PIK Note issued in respect of a Subordinated Dollar Fixed Rate Note.
"Subordinated Dollar Fixed Rate PIK Note 2014" means the Subordinated Dollar Fixed Rate PIK Note due on January 1, 2014.
"Subordinated Dollar Fixed Rate PIK Note 2019" means the Subordinated Dollar Fixed Rate PIK Note due on the Subordinated Dollar Maturity Date.
"Subordinated Dollar Fixed Rate Tranche" means the tranche of Subordinated Dollar Fixed Rate Notes and Subordinated Dollar Fixed Rate PIK Notes.
"Subordinated Dollar Holders" means, collectively, (i) the Subordinated Dollar Fixed Rate Holders and (ii) the Subordinated Dollar LIBOR Holders.
"Subordinated Dollar LIBOR Holder" means, at any time, any Holder holding any of the Subordinated Dollar LIBOR Notes.
"Subordinated Dollar LIBOR Note" means any subordinated Dollar denominated note under this Agreement (other than the Subordinated Dollar PIK Note) bearing interest in cash at the Subordinated Dollar LIBOR Note Interest Rate plus interest in the form of Subordinated Dollar LIBOR PIK Notes at the Subordinated Dollar PIK Rate or, as the context requires, the principal amount of such note outstanding from time to time.
"Subordinated Dollar LIBOR Note Interest Rate" means for any Interest Period, the rate at which interest is payable on the Subordinated Dollar LIBOR Note during that Interest Period, determined in accordance with Section 3.3(a)(v).
"Subordinated Dollar LIBOR Tranche" means the tranche of Subordinated Dollar LIBOR Notes and Subordinated Dollar LIBOR PIK Notes.
"Subordinated Dollar LIBOR PIK Note" means a Subordinated Dollar PIK Note issued in respect of Subordinated Dollar LIBOR Notes.
"Subordinated Dollar LIBOR PIK Note 2014" means the Subordinated Dollar LIBOR PIK Note due on January 1, 2014.
"Subordinated Dollar LIBOR PIK Note 2019" means the Subordinated Dollar LIBOR PIK Note due on the Subordinated Dollar Maturity Date.
"Subordinated Dollar Notes" means, collectively, (i) the Subordinated Dollar Fixed Rate Notes and (ii) the Subordinated Dollar LIBOR Notes.
"Subordinated Dollar Maturity Date" means January 1, 2019.
"Subordinated Dollar PIK Notes" means, collectively, (i) the Subordinated Dollar Fixed Rate PIK Notes and (ii) the Subordinated Dollar LIBOR PIK Notes.
"Subordinated Dollar PIK Note 2014" means, collectively, (i) the Subordinated Dollar LIBOR PIK Note 2014 and (ii) Subordinated Dollar Fixed Rate PIK Note 2014.
"Subordinated Dollar PIK Note 2019" means, collectively, (i) the Subordinated Dollar LIBOR PIK Note 2019 and (ii) Subordinated Dollar Fixed Rate PIK Note 2019.
"Subordinated Dollar Note Event of Acceleration" has the meaning assigned to such term in Section 7.2.
"Subordinated Dollar PIK Rate" means five percent (5%) per annum.
"Subordinated Loans" means, collectively, (i) the Restructured IFC Subordinated Loans, (ii) the Subordinated Dollar Notes, (iii) the Restructured IIC Subordinated Loans, and (iv) the Restructured CCC Subordinated Loans.
"Subscription Agreement" means the subscription agreement, to be entered into on or prior to the Effective Date and executed and delivered by and between First Trust of New York, National Association, Representacion Permanente en Argentina, as trustee on behalf of the Trust and Grupo Galicia.
"Subsidiary" means any Person of which, at the time of determination, the Issuer and/or one or more of its Subsidiaries owns or Controls directly or indirectly more than fifty percent (50%) of the shares of such Person's capital voting stock.
"Surviving Debt" means all Debt of the Issuer and its Subsidiaries outstanding immediately before and after giving effect to the transactions contemplated in this Agreement and the other Transaction Documents, as set forth on Schedule 4.17 hereto.
"Tax Benefit" has the meaning assigned to such term in Section 3.8(f).
"Taxes" means any present or future taxes, assessments, withholding obligations, duties, fees and other charges of whatever nature levied, imposed and/or collected by any Authority, and all interest, penalties, or similar liabilities with respect thereto.
"Three Month Maturity Gap" means at any calculation date: (i) all of the
Indebtedness for Borrowed Money (to the extent required to be reflected on the
Issuer's balance sheets) owed by the Issuer to any Person maturing within ninety
(90) days of that date; minus (ii) all of the Indebtedness for Borrowed Money
(to the extent required to be reflected on the Issuer's balance sheets) owed to
the Issuer by any Person maturing within ninety (90) days of that date.
"Trade Creditor Holder" means any Holder who is also a party to the New Trade Debt Agreement.
"Tranches" means, collectively, (i) the Long-Term Dollar LIBOR Tranche,
(ii) the Long-Term Dollar Fixed Rate Tranche, (iii) the Medium-Term Dollar LIBOR
Tranche, (iv) the Medium-Term Dollar Fixed Rate Tranche, (v) the Subordinated
Dollar LIBOR Tranche and (vi) the Subordinated Dollar Fixed Rate Tranche.
"Transaction Documents" means:
(i) the Financing Agreements;
(ii) the Restructured IFC Loan Agreements;
(iii) the Restructured IIC Loan Agreements;
(iv) the Restructured CCC Loan Agreement;
(v) the Restructured Bonds;
(vi) the Grupo Galicia Agreement;
(vii) the Subscription Agreement;
(viii) the Purchase Agreement;
(ix) the Trust Agreement;
(x) the Assignment Agreement;
(xi) the New Trade Debt Agreement;
(xii) the Registration Rights Agreement; and
(xiii) all and any other documents, instruments, indentures, fiscal and paying agency agreements and/or other agreements relating to, and/or in connection with, any of the foregoing agreements and documents.
"Transactions" means the execution, delivery and performance by the Issuer of the Restructured Credit Agreements and the documents pursuant to which the Bond Exchange Offer is being consummated and all other agreements or instruments to be executed or delivered in connection therewith or any of the transactions contemplated thereby.
"Transfer" means, with respect to any Property, a sale, conveyance, assignment, transfer, lease, or other disposition, in whole or in part, of such Property.
"Transfer Agreement" means the transfer agreement to be entered into on or prior to the Effective Date between the Issuer and Grupo Galicia.
"Trust" means the trust created pursuant to the Trust Agreement.
"Trust Agreement" means the trust agreement, to be entered into on or prior to the Effective Date, between the Issuer and First Trust of New York, National Association, Representacion Permanente en Argentina, as trustee.
"Unhedged Open Foreign Exchange Position" means at any calculation date:
(i) the Issuer's Foreign Currency Debt; minus (ii) the Issuer's Foreign Currency
Assets (expressed in Dollars) and reflected in the Issuer's most recent
unaudited quarterly accounts or audited quarterly accounts (in the case of the
last quarter of any Fiscal Year).
"Uruguayan Central Bank" means the Banco Central del Uruguay (the Uruguayan Central Bank) and any other Authority that may replace or carry out any part of the monetary, regulatory and supervisory functions thereof.
"U.S. Note" has the meaning set forth in Section 2.14(f).
"U.S. Person" has the meaning set forth in Rule 902 of Regulation S promulgated under the United States Securities Act of 1933, as amended.
"Voting Stock" means, with respect to a Subsidiary or an Affiliate, any stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person; provided, however, that, for the purposes hereof, stock which carries only the right to vote conditionally on the happening of an event shall not be considered Voting Stock, whether or not such event shall have happened.
Section 1.2. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall, unless otherwise expressly provided, be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein and therein), (b) any reference herein to any Person shall be
construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.3. Accounting Terms; Accounting Principles. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with the applicable Accounting Principles; provided that if the Issuer notifies the Agent that the Issuer requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in the Accounting Principles or in the
application thereof on the operation of such provision (or if the Agent notifies
the Issuer that the Required Holders request an amendment to any provision
hereof for such purposes), regardless of whether any such notice is given before
or after such change in the applicable Accounting Principles or in the
application thereof, then such provision shall be interpreted on the basis of
the Accounting Principles as in effect and applied immediately before such
change shall have become effective until such notice shall have been withdrawn
or such provision amended in accordance herewith. For the avoidance of doubt,
the Unhedged Open Foreign Exchange Position of the Issuer, for the purposes of
Section 6.3(b), shall be calculated in accordance with the Central Bank's
regulations on a bank's foreign currency exposure.
ARTICLE II
The Restructured Dollar Notes
Section 2.1. Elections for Exchange of Original Dollar Loans. (a) Each Holder, pursuant to its Election Notice, has elected (i) to exchange the Adjusted Principal Amount of its Original Dollar Loans for one or more of (A) Long-Term Dollar Notes, (B) Medium-Term Dollar Notes (with respect to both the New Trade Debt Agreement and the Equity Participation Tender Offer), (C) Subordinated Dollar Notes, (D) Preferred Shares (or Preferred Shares and cash, if any) pursuant to the Equity Participation Tender Offer, (E) BODEN pursuant to the BODEN Tender Offer and/or (F) cash payment under the Cash Tender Offer, in each case as set forth on such Holder's Election Notice, (ii) that its Long-Term Dollar Notes shall bear interest at the Long-Term Dollar LIBOR Note Interest Rate or Long-Term Dollar Fixed Rate, in each case as specified on such Holder's Election Notice, (iii) that its Medium-Term Dollar Notes shall bear interest at the Medium-Term Dollar LIBOR Note Interest Rate or Medium-Term Dollar Fixed Rate, in each case as specified on such Holder's Election Notice, and (iv) that its Subordinated Dollar Notes shall bear interest at the Subordinated Dollar LIBOR Note Interest Rate or Subordinated Dollar Fixed Rate, in each case as specified on such Holder's Election Notice.
(b) Each Holder's elections referred to in clause (a) above are subject to the proration and reallocation procedure set forth on Schedule 2.1 and reflected in the Election Notice, and the obligation of each Holder to exchange its Original Dollar Loans under this Agreement is subject to the satisfaction of the conditions precedent set forth in Section 5.1 hereof.
(c) The Issuer shall, promptly after receipt of the allocations of Long-Term Dollar Notes, Medium-Term Dollar Notes (with respect to both the New Trade Debt Agreement and the Equity Participation Tender Offer), Subordinated Dollar Notes, the Preferred Shares (or Preferred Shares and cash, if any), the BODEN Tender Offer and the Cash Tender Offer from the Exchange Agent and the Documentation Agent, provide to the Agent, at least six (6) Business Days prior to the Effective date (i) a copy of such allocations together with the Exchange Agent's and Documentation Agent's calculations of any proration factor, and (ii) Schedule 5.1(b)(ii) hereto, together with the Issuer's calculation of the Effective Date Interest Amounts.
(d) The Agent shall, promptly after receipt of such allocations, proration calculations, Schedule 5.1(b)(ii) and Effective Date Interest Amount calculations, in each case as referred to in clause (c) above, and in any event at least five (5) Business Days prior to the Effective Date,
provide notice to the Holders, with a copy to the Issuer, of the Holders' respective allocations of Long-Term Dollar LIBOR Notes, Long-Term Dollar Fixed Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term Dollar Fixed Rate Notes, Subordinated Dollar LIBOR Notes, Subordinated Dollar Fixed Rate Notes, Preferred Shares (or Preferred Shares and cash, if any), BODEN Tender Offer Exchange Amounts and Cash Tender Offer Payment Amounts, as applicable, substantially in the form attached hereto as Exhibit C (the "Allocation Notice"), together with a copy of such allocations, proration calculations, Schedule 5.1(b)(ii) and Effective Date Interest Amount calculations.
(e) The Documentation Agent shall, on the date that is at least two (2)
Business Days prior to the expected Effective Date, provide written notice to
the Long-Term Dollar LIBOR Holders, with a copy to the Issuer and the Agent, of
the percentage (the "Long-Term Dollar Applicable Margin") which shall be the
margin over the LIBO Rate set forth in Section 3.3(a)(i) required to determine
the Long-Term Dollar LIBOR Note Interest Rate; it being understood and agreed
that such Long-Term Dollar Applicable Margin shall be determined by the Agent on
such date based on conversion of the Long-Term Dollar Fixed Rate into a six
(6)-month LIBO Rate floating rate equivalent, utilizing a hypothetical interest
rate swap having the same principal amount, amortization and maturity as the
Long-Term Dollar Notes based upon the arithmetic mean of the three (3) middle
quotations, expressed as a percentage, from five (5) leading dealers in interest
rate swaps.
(f) The Documentation Agent shall, on the date that is at least two (2) Business Days prior to the expected Effective Date, provide written notice to the Medium-Term Dollar Fixed Rate Holders, with a copy to the Issuer and the Agent, of the percentage (the "Medium-Term Dollar Fixed Rate") which shall be the fixed rate equivalent of the Medium-Term Dollar LIBOR Note Interest Rate; it being understood and agreed that such Medium-Term Dollar Fixed Rate shall be determined by the Agent on such date based on conversion of the Medium-Term Dollar LIBOR Note Interest Rate on such date into a fixed rate equivalent, utilizing a hypothetical interest rate swap having the same principal amount, amortization and maturity as the Medium-Term Dollar Notes based upon the arithmetic mean of the three (3) middle quotations, expressed as a percentage, from five (5) leading dealers in interest rate swaps.
(g) The Documentation Agent shall, on the date that is at least two (2) Business Days prior to the expected Effective Date, provide written notice to the Subordinated Dollar LIBOR Holders, with a copy to the Issuer and the Agent, of the percentage (the "Subordinated Dollar Applicable Margin") which shall be the margin over the LIBO Rate set forth in Section 3.3(a)(v) required to determine the Subordinated Dollar LIBOR Note Interest Rate; it being understood and agreed that such Subordinated Dollar Applicable Margin shall be determined by the Agent on such date based on conversion of the Subordinated Dollar Fixed Rate into a six (6)-month LIBO Rate floating rate equivalent, utilizing a hypothetical interest rate swap having the same principal amount, amortization and maturity as the Subordinated Dollar Notes based upon the arithmetic mean of the three (3) middle quotations, expressed as a percentage, from five (5) leading dealers in interest rate swaps.
Section 2.2. The Long-Term Dollar LIBOR Notes. On the Effective Date, subject to the terms and conditions hereof, each Holder hereby agrees to exchange (and the same shall be deemed to have been automatically exchanged) the portion of the Adjusted Principal Amount of
its Original Dollar Loans in the amount set forth in such Holder's Election Notice, as such amount may be adjusted pursuant to the proration and reallocation procedure set forth in Schedule 2.1, for a Long-Term Dollar LIBOR Note in the amount set forth with respect to such Holder in the Allocation Notice (which amount shall be equal to, subject to the proration and allocation procedure described above, one hundred percent (100%) of the portion of the Adjusted Principal Amount of the Original Dollar Loans of such Holder exchanged therefor).
Section 2.3. The Long-Term Dollar Fixed Rate Notes. On the Effective Date, subject to the terms and conditions hereof, each Holder hereby agrees to exchange (and the same shall be deemed to have been automatically exchanged) the portion of the Adjusted Principal Amount of its Original Dollar Loans in the amount set forth in such Holder's Election Notice, as such amount may be adjusted pursuant to the proration and reallocation procedure set forth on Schedule 2.1, for a Long-Term Dollar Fixed Rate Note in the amount set forth with respect to such Holder in the Allocation Notice (which amount shall be equal to, subject to the proration and allocation procedure described above, one hundred percent (100%) of the portion of the Adjusted Principal Amount of the Original Dollar Loans of such Holder exchanged therefor).
Section 2.4. The Medium-Term Dollar LIBOR Notes. On the Effective Date, subject to the terms and conditions hereof, each Holder participating in the Equity Participation Tender Offer and each Trade Creditor Holder hereby agrees to exchange (and the same shall be deemed to have been automatically exchanged) the portion of the Adjusted Principal Amount of its Original Dollar Loans in the amount set forth in such Holder's or Trade Creditor Holder's, as the case may be, Election Notice, as such amount may be adjusted pursuant to the proration and reallocation procedure set forth in Schedule 2.1, for a Medium-Term Dollar LIBOR Note in the amount set forth with respect to such Holder or Trade Creditor Holder, as the case may be, in the Allocation Notice (which amount shall be equal to, subject to the proration and allocation procedure described above, one hundred percent (100%) of the portion of the Adjusted Principal Amount of the Original Dollar Loans of such Holder or Trade Creditor Holder, as the case may be, exchanged therefor).
Section 2.5. The Medium-Term Dollar Fixed Rate Notes. On the Effective Date, subject to the terms and conditions hereof, each Holder participating in the Equity Participation Tender Offer and each Trade Creditor Holder hereby agrees to exchange (and the same shall be deemed to have been automatically exchanged) the portion of the Adjusted Principal Amount of its Original Dollar Loans in the amount set forth in such Holder's or Trade Creditor Holder's, as the case may be, Election Notice, as such amount may be adjusted pursuant to the proration and reallocation procedure set forth in Schedule 2.1, for a Medium-Term Dollar Fixed Rate Note in the amount set forth with respect to such Holder or Trade Creditor Holder, as the case may be, in the Allocation Notice (which amount shall be equal to, subject to the proration and allocation procedure described above, one hundred percent (100%) of the portion of the Adjusted Principal Amount of the Original Dollar Loans of such Holder or Trade Creditor Holder, as the case may be, exchanged therefor).
Section 2.6. The Subordinated Dollar LIBOR Notes. On the Effective Date, subject to the terms and conditions hereof, each Holder hereby agrees to exchange (and the same shall be deemed to have been automatically exchanged) the portion of the Adjusted Principal Amount of its Original Dollar Loans in the amount set forth in such Holder's Election Notice, as such
amount may be adjusted pursuant to the proration and reallocation procedure set forth in Schedule 2.1, for a Subordinated Dollar LIBOR Note in the amount set forth with respect to such Holder in the Allocation Notice (which amount shall be equal to, subject to the proration and allocation procedure described above, one hundred percent (100%) of the portion of the Adjusted Principal Amount of the Original Dollar Loans of such Holder exchanged therefor).
Section 2.7. The Subordinated Dollar Fixed Rate Notes. On the Effective Date, subject to the terms and conditions hereof, each Holder hereby agrees to exchange (and the same shall be deemed to have been automatically exchanged) the portion of the Adjusted Principal Amount of its Original Dollar Loans in the amount set forth in such Holder's Election Notice, as such amount may be adjusted pursuant to the proration and reallocation procedure set forth on Schedule 2.1, for a Subordinated Dollar Fixed Rate Note in the amount set forth with respect to such Holder in the Allocation Notice (which amount shall be equal to, subject to the proration and allocation procedure described above, one hundred percent (100%) of the portion of the Adjusted Principal Amount of the Original Dollar Loans of such Holder exchanged therefor).
Section 2.8. Effect of Effective Date and Exchange. Effective upon the occurrence of the Effective Date and the automatic exchange of Original Dollar Loans for Restructured Dollar Notes, each Holder hereby consents to the termination of the Existing Bank Debt of such Holder and the replacement with the Restructured Bank Debt, and hereby waives any notice requirements contained in the agreements and instruments evidencing such Existing Debt relating thereto and hereby agrees that as of the Effective Date, such agreements and instruments evidencing such Existing Bank Debt shall be superseded in all respects with this Agreement and such agreements and instruments shall have no further force and effect with respect to such Holder.
Section 2.9. Repayment of Long-Term Dollar Notes. The Issuer shall repay to the Agent for the ratable account of the Long-Term Dollar Holders the aggregate outstanding principal amount of the Long-Term Dollar Notes in nine (9) semi-annual consecutive installments, the first (1st) installment being due on January 1, 2010, and with respect to each subsequent installment, on the dates set forth below opposite each relevant date, each of which shall be in an amount equal to the original principal amount of such Holder's Long-Term Dollar Note multiplied by the percentage set forth below opposite such installment below (which installments shall be reduced, as a result of the application of any prepayments of the Long-Term Dollar Notes pursuant to Section 3.1 or Section 3.2):
Date Payment Due Amortization ---------------- ------------ January 1, 2010 11.11% July 1, 2010 11.11% January 1, 2011 11.11% July 1, 2011 11.11% January 1, 2012 11.11% July 1, 2012 11.11% January 1, 2013 11.11% July 1, 2013 11.11% January 1, 2014 11.12% |
provided, however, that the final principal installment shall be repaid on the Long-Term Dollar Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of the Long-Term Dollar Notes outstanding on such date.
Section 2.10. Repayment of Medium-Term Dollar Notes. The Issuer shall
repay to the Agent for the ratable account of the Medium-Term Dollar Holders the
aggregate outstanding principal amount of the Medium-Term Dollar Notes in eight
(8) semi-annual consecutive installments, the first (1st) installment being due
on July 1, 2006, and with respect to each subsequent installment, on the dates
set forth below opposite each relevant date, each of which shall be in an amount
equal to the original principal amount of such Holder's Medium-Term Dollar Note
multiplied by the percentage set forth below opposite such installment below
(which installments shall be reduced, as a result of the application of any
prepayments of the Medium-Term Dollar Notes, pursuant to Section 3.1 or Section
3.2):
Date Payment Due Amortization ---------------- ------------ July 1, 2006 12.50% January 1, 2007 12.50% July 1, 2007 12.50% January 1, 2008 12.50% July 1, 2008 12.50% January 1, 2009 12.50% July 1, 2009 12.50% January 1, 2010 12.50% |
provided, however, that the final principal installment shall be repaid on the Medium-Term Dollar Maturity Date and in any event shall be in an amount equal to the aggregate principal amount of the Medium-Term Dollar Notes outstanding on such date.
Section 2.11. Repayment of Subordinated Dollar Notes. The Issuer shall repay to the Agent for the ratable account of the Subordinated Dollar Holders the aggregate outstanding principal amount of the Subordinated Dollar Notes on the Subordinated Dollar Maturity Date, which shall be, with respect to each such Holder, an amount equal to the original principal amount of such Holder's Subordinated Dollar Note (which amount shall be reduced as a result of the application of any prepayments thereof pursuant to Section 3.1).
Section 2.12. Repayment of Subordinated Dollar PIK Notes. The Issuer shall
repay to the Agent for the ratable account of the Subordinated Dollar Holders
(i) on January 1, 2014, the aggregate outstanding principal amount of the
Subordinated Dollar PIK Note 2014, which shall be, with respect to each such
Holder, an amount equal to interest accrued on the original principal amount of
such Holder's Subordinated Dollar Note at the Subordinated Dollar PIK Rate
through but not including January 1, 2014 and (ii) on the Subordinated Dollar
Maturity Date, the aggregate outstanding principal amount of the Subordinated
Dollar PIK Note 2019, which shall be, with respect to each such Holder, an
amount equal to interest accrued on the original principal amount of such
Holder's Subordinated Dollar Note at the Subordinated Dollar PIK Rate from
January 1, 2014 through and including the Subordinated Dollar Maturity Date (it
being understood and agreed that the calculation of interest pursuant to this
Section shall be adjusted to reflect any prepayments of the Subordinated Dollar
Notes pursuant to Section 3.1).
Section 2.13. Evidence of Debt. (a) Each Holder shall maintain in accordance with its usual practice an account or accounts evidencing the Debt of the Issuer to such Holder resulting from each Restructured Dollar Note owing to such Holder, including the amounts of principal and interest payable and paid to such Holder from time to time hereunder.
(b) The Agent shall maintain books and records in which it shall record
(i) the amount of each Restructured Dollar Note, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Issuer to each Holder hereunder and (iii) the amount of any sum received by the
Agent hereunder for the account of the Holders and each Holder's share thereof.
(c) Absent manifest error, the entries made in the accounts maintained pursuant to paragraph (a) of this Section or in the books and records maintained pursuant to paragraph (b) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Holder to maintain such accounts or the Agent to maintain such books and records or any error therein shall not in any manner affect the obligation of the Issuer to repay the Restructured Dollar Notes in accordance with the terms of this Agreement.
Section 2.14. Notes. (a) Each of the Restructured Dollar Notes shall be
evidenced by: (i) (A) in the case of the Long-Term Dollar Notes, pagares
evidencing each installment of principal of such Long-Term Dollar Notes, (B) in
the case of the Medium-Term Dollar Notes, pagares evidencing each installment of
principal of such Medium-Term Dollar Notes, (C) in the case of the Subordinated
Dollar Notes, pagares evidencing each installment of principal of such
Subordinated Dollar Notes, and (D) in the case of the Subordinated Dollar PIK
Notes, pagares evidencing each installment of principal of such Subordinated
Dollar PIK Notes; and (ii) (A) in the case of the Long-Term Dollar Notes,
pagares evidencing interest as calculated pursuant to Section 3.3 for such
Interest Period on such Long-Term Dollar Notes, (B) in the case of the
Medium-Term Dollar Notes, pagares evidencing interest as calculated pursuant to
Section 3.3 for such Interest Period on such Medium-Term Dollar Notes, (C) in
the case of the Subordinated Dollar Notes, pagares evidencing interest as
calculated pursuant to Section 3.3 for such Interest Period on such Subordinated
Dollar Notes, and (D) in the case of the Subordinated Dollar PIK Notes, pagares
evidencing interest as calculated pursuant to Section 3.3 for such Interest
Period on such Subordinated Dollar PIK Notes (each such pagare described in this
Section 2.14(a) evidencing an installment of principal or interest, an
"Argentine Note," and collectively the "Argentine Notes"), each duly executed
and delivered by the Issuer substantially in form of Exhibit D-1 (with
applicable modifications).
(b) The Issuer hereby authorizes the issuance and delivery of each Argentine Note issued in accordance with the terms and conditions of this Agreement and each such Note shall: (i) be dated the date of the execution thereof, (ii) in the case of each Argentine Note evidencing a payment of an installment of principal, such Argentine Note shall be in a principal amount equal to each installment of principal of the Restructured Dollar Note evidenced thereby, (iii) in the case of each Argentine Note evidencing a payment of interest due in an Interest Period, each
Argentine Note shall be in a principal amount equal to all interest scheduled to be payable on the last day of such Interest Period with respect to the Restructured Dollar Notes, (iv) bear interest if applicable at the Default Interest Rate, as specified in Section 3.3(c), (v) be payable on demand (a la vista), and (vi) be non-negotiable instruments (no a la orden).
(c) On the last day of each Interest Period with respect to the LIBOR Notes, the Issuer shall execute and deliver to each Holder an Argentine Note in respect of the immediately succeeding Interest Period which shall have been appropriately completed to include the information specified in subsection (b) hereof; provided, (i) if the Issuer has paid the interest accrued during the preceding Interest Period, the new Argentine Note or Argentine Notes shall be a replacement of (and not in addition to) the Argentine Note or Argentine Notes then in effect evidencing interest; (ii) if the Issuer fails to replace any Argentine Note or Argentine Notes evidencing interest but nonetheless pays the interest accrued during the preceding Interest Period, each affected Holder shall be entitled to claim under such existing Argentine Note or Argentine Notes the amount of interest that may accrue in the succeeding Interest Period or Interest Periods; and (iii) if the Issuer fails to pay the interest accrued during the preceding Interest Period, the Issuer shall remain obligated to execute and deliver to each affected Holder an Argentine Note or Argentine Notes in respect of the immediately succeeding Interest Periods, which shall be in addition to (and not a replacement of) the Argentine Note or Argentine Notes then in effect evidencing interest. Promptly upon the payment in full of all amounts due under any Argentine Note or Argentine Notes evidencing interest on the LIBOR Notes, the applicable Holder shall return such Argentine Note or Argentine Notes to the Issuer marked "cancelled" in exchange for the replacement Argentine Note required to be provided in accordance with this subsection (c).
(d) Promptly: (i) upon the payment in full (as a result of a scheduled payment or prepayment, in whole or in part) of all amounts due under any Argentine Note evidencing the installments of principal of the Restructured Dollar Notes, the applicable Holder shall return such Argentine Notes to the Issuer marked "cancelled", and (ii) upon the payment in part of any amounts due under any of the Argentine Notes evidencing an installment of principal of the Restructured Dollar Notes, the applicable Holder shall return such Argentine Note to the Issuer marked "cancelled" in exchange for new Argentine Notes executed and delivered by the Issuer to such Holder in a principal amount equal to the amount of such installment of principal of the Restructured Dollar Notes that remains outstanding after such payment.
(e) Notwithstanding the fact that each Argentine Note shall be payable on demand, no Holder shall exercise such demand right unless a payment default or an acceleration pursuant to Article VII has occurred and is continuing. The issuance of the Argentine Notes is not intended to, and shall not, constitute a novation of any of the Restructured Dollar Notes provided for hereunder.
(f) The Issuer's obligation to pay the principal of, and interest on, each of the Restructured Dollar Notes shall also be evidenced by a promissory note duly executed and delivered by the Issuer substantially in form of Exhibit D-2 (with applicable modifications) (each such promissory note, a "U.S. Note," and collectively with the Argentine Notes, the "Notes"). The Issuer hereby authorizes the issuance and delivery of each U.S. Note issued in accordance with the terms and conditions of this Agreement and each such Note shall: (i) be payable to the
order of such Holder, (ii) be dated the Effective Date and (iii) be in a stated principal amount equal to the Long-Term Dollar LIBOR Notes, Long-Term Dollar Fixed Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term Dollar Fixed Rate Notes, Subordinated Dollar LIBOR Notes, Subordinated Dollar Fixed Rate Notes, Subordinated Dollar LIBOR PIK Notes or Subordinated Dollar Fixed Rate PIK Notes evidenced thereby, as applicable, relating to such Holder, or, with respect to any Holder that becomes a party hereto pursuant to an Assignment and Acceptance, be in a stated principal amount equal to the Long-Term Dollar LIBOR Notes, Long-Term Dollar Fixed Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term Dollar Fixed Rate Notes, Subordinated Dollar LIBOR Notes, Subordinated Dollar Fixed Rate Notes, Subordinated Dollar LIBOR PIK Notes or Subordinated Dollar Fixed Rate PIK Notes, as applicable, assigned to such Holder pursuant to such Assignment and Acceptance and be dated the effective date of such Assignment and Acceptance.
Section 2.15. Subordination. (g) The Issuer agrees, and each Holder by accepting Subordinated Dollar Notes agrees, that the Debt evidenced thereby and all other obligations in respect thereof are subordinated in right of payment to all non-subordinated indebtedness of the Issuer in accordance with the provisions of Communique "A" No. 2970 and other complementary regulations issued by the Central Bank. Therefore, in the event of bankruptcy of the Issuer, the Subordinated Dollar Notes will only have priority in payment with respect to the shareholders of the Issuer and the Holders thereof hereby waive any general or special privilege that they may have.
(h) The lack of payment of principal of (and premium and Additional Amounts, if any) and interest on any or all of the Subordinated Dollar Notes shall not be considered an event which gives rise to the cancellation of the Issuer's authorization to operate as a financial institution, provided that: (i) the Issuer and the Holders of Subordinated Dollar Notes agree, within the year in which such amounts became due and payable, on the manner in which payment of amounts due shall be made; (ii) the Issuer complies regularly with payments on its non-subordinated indebtedness; (iii) the Issuer does not pay cash dividends to its shareholders; and (iv) the Issuer does not pay any fees to its directors and comptrollers (sindicos), except to those that exercise executive functions.
(i) Failure by the Issuer to comply with these provisions shall not render the Central Bank liable in any respect.
ARTICLE III
General Provisions Applicable to the Restructured Dollar Notes
Section 3.1. Optional Prepayment of Restructured Dollar Notes. (a) Without prejudice to the provisions of Section 3.6, Section 3.8 and Section 9.3(d), the Issuer may prepay, subject to and in accordance with Section 6.4(g), at any time and from time to time all or any part of the Restructured Dollar Notes without premium or penalty, by giving an irrevocable notice to the Agent (which notice the Agent shall promptly upon receipt thereof advise the Holders of the contents thereof) at least five (5) Business Days before the date of prepayment specifying the
type of Restructured Dollar Note, the prepayment date (which shall be a Business Day) and principal amount of the Restructured Dollar Notes to be prepaid if, and only if:
(i) the Issuer simultaneously (A) prepays, subject to and in accordance with Section 6.4(g), the Long-Term Debt and (y) solely with respect to prepayments of Medium-Term Dollar Notes, the other Medium-Term Loans and (z) solely with respect to prepayments of Subordinated Dollar Notes, the other Subordinated Loans, in each case on a pro rata and pari passu basis taking into account the respective remaining principal amounts thereof at such time outstanding and (B) pays all accrued interest and "increased costs" (if any) related thereto;
(ii) the Issuer pays on the date of any such prepayment all accrued interest and Increased Costs (if any) on the amount of the Restructured Dollar Notes to be prepaid, together with all other amounts then due and payable under this Agreement;
(iii) for a partial prepayment, that prepayment is an amount equal to
either of (y) five million Dollars ($5,000,000) or any integral
multiple of one million Dollars ($1,000,000) in excess thereof, or
(z) the then full outstanding amount of the Restructured Dollar
Notes to be prepaid; and
(iv) the Issuer delivers to the Agent, prior to the date of such prepayment, evidence satisfactory to the Agent in its reasonable discretion that all necessary Authorizations, if any, with respect to the prepayment have been obtained and a certification from a Responsible Officer of the Issuer that all such Authorizations have been obtained and that such prepayment is in accordance with the terms and conditions of this Agreement and the other Transaction Documents.
(b) Amounts of principal prepaid under this Section shall be allocated by the Agent pro rata between the Restructured Dollar Notes being prepaid in proportion to their respective principal amounts outstanding and ratably to the installments thereof.
(c) Any principal amount of any of the Restructured Dollar Notes prepaid under this Agreement may not be re-borrowed.
(d) Prepayment of any principal amount of any of the Subordinated Dollar Notes shall be subject to (i) prior authorization by the Argentine Superintendency of Financial Institutions (Superintendencia de Entidades Financieras y Cambiarias) and (ii) that after giving effect to any such prepayment, the Issuer's Available Capital remains equal to or greater than any mandatory minimum capital requirement set forth by the Central Bank.
Section 3.2. Mandatory Prepayment of Restructured Dollar Notes. (a) If the Issuer or any Significant Subsidiary incurs any Debt that is governed by laws other than those of the Country in excess of an aggregate amount of twenty-five million Dollars ($25,000,000) (or the Dollar Equivalent in any other currency) per Fiscal Year, then the Issuer shall (and shall cause such Significant Subsidiary to) apply fifty percent (50%) of any portion of the Net Cash Proceeds of such transaction that are in excess of the aggregate amount specified in this paragraph: (i) first, to prepay or redeem, as applicable, the Long-Term Dollar Notes and the
other Long-Term Debt in the inverse order of maturity (together with all accrued
interest and Increased Costs, if any, on the Long-Term Dollar Notes and accrued
interest and "increased costs", if any, in respect of the other Long-Term Debt)
on a pro rata and pari passu basis taking into account the respective principal
amounts thereof at the time outstanding; and (ii) second, if the Long-Term
Dollar Notes and the other Long-Term Debt (together with all accrued interest
and Increased Costs, if any, on the Long-Term Dollar Notes and accrued interest
and "increased costs", if any, in respect of the other Long-Term Debt) have been
paid in full, to prepay or redeem, as applicable, the Medium-Term Dollar Notes
and the other Medium-Term Debt (together with all accrued interest and Increased
Costs, if any, in respect of the Medium-Term Dollar Notes and accrued interest
and "increased costs", if any, in respect of the other Medium-Term Debt) in the
inverse order of maturity on a pro rata and pari passu basis taking into account
the respective principal amounts thereof at the time outstanding; provided that
(i) the Issuer or such Significant Subsidiary shall not be required to so apply
Net Cash Proceeds received by the Issuer or such Significant Subsidiary from the
incurrence of Debt having an original maturity of one (1) year or less, and (ii)
the Issuer or any Significant Subsidiary shall apply twenty-five percent (25%)
(and not fifty percent (50%) as stated above) of the Net Cash Proceeds, from any
Securitization (whether or not such Securitization involves the incurrence of
Debt) as to which all of the material terms are governed by Argentine law and
which is issued in the Argentine market, to Debt prepayments or redemptions as
described above, and (iii) any Debt incurred in excess of twenty-five million
Dollars ($25,000,000) (or the Dollar Equivalent in any other currency) per
Fiscal Year, a portion of which is required to be used to prepay or redeem, as
applicable, Debt pursuant to this paragraph, shall always have a maturity date
and interest rate provisions that, in each case, are more beneficial to the
Issuer as compared with the Restructured Debt most similar in term and type to
the Debt so incurred).
(b) If the Issuer or any Significant Subsidiary effects a Transfer of
Property or receives Property or insurance claims payments in connection with
any Property in excess of an aggregate amount of ten million Dollars
($10,000,000) (or the Dollar Equivalent in any other currency) per Fiscal Year
(including any Capital Stock of a Person other than the Issuer) pursuant to
Section 6.4(e), then the Issuer shall (and shall cause such Significant
Subsidiary to) apply seventy-five percent (75%) of any portion of the Net Cash
Proceeds of such transaction that are in excess of the aggregate amount
specified in this paragraph: (i) first, to prepay or redeem, as applicable, the
Long-Term Dollar Notes and the other Long-Term Debt in the inverse order of
maturity (together with all accrued interest and Increased Costs, if any, on the
Long-Term Dollar Notes and accrued interest and "increased costs", if any, in
respect of the other Long-Term Debt) on a pro rata and pari passu basis taking
into account the respective principal amounts thereof at the time outstanding;
and (ii) second, if the Long-Term Dollar Notes and the other Long-Term Debt
(together with all accrued interest and Increased Costs, if any, on the
Long-Term Dollar Notes and accrued interest and "increased costs", if any, in
respect of the other Long-Term Debt) have been paid in full, to prepay or
redeem, as applicable, the Medium-Term Dollar Notes and the other Medium-Term
Debt (together with all accrued interest and Increased Costs, if any, in respect
of the Medium-Term Dollar Notes and accrued interest and "increased costs", if
any, in respect of the other Medium-Term Debt) in the inverse order of maturity
on a pro rata and pari passu basis taking into account the respective principal
amounts thereof at the time outstanding; provided that (i) the Issuer or such
Significant Subsidiary shall not be required to cause Net Cash Proceeds received
by the Issuer or such Significant Subsidiary from the Transfer of any fixed
assets, or the Transfer of any Capital Stock or Voting Stock in
Permitted Businesses if such Net Cash Proceeds are reinvested, by such Person, by a date no later than six (6) months from the date of such Transfer in either fixed assets or Permitted Businesses, respectively (it being understood that if at the end of such six-month period no such reinvestment has been consummated, the Issuer or such Significant Subsidiary shall immediately effect such prepayment or redemption) and (ii) one hundred percent (100%) of any portion of the Net Cash Proceeds (without deducting any amount or applying any basket) of the Transfer of Headquarter Offices shall be applied to Debt prepayment or redemptions as described above. The Net Cash Proceeds from any Securitization (whether or not such Securitization involves the incurrence of Debt) as to which all of the material terms are governed by Argentine law, and which is issued in the Argentine market, shall be applied in accordance with Section 3.2(a).
(c) If the Issuer or any Subsidiary of the Issuer issues equity securities privately (other than with respect to the capitalization of any Subordinated Debt of the Issuer held by Grupo Galicia) or in the capital markets, then fifty percent (50%) of any portion of the Net Cash Proceeds of such transaction shall be applied by the Issuer: (i) first, to prepay or redeem, as applicable, the Long-Term Dollar Notes and the other Long-Term Debt in the inverse order of maturity (together with all accrued interest and Increased Costs, if any, on the Long-Term Dollar Notes and accrued interest and "increased costs", if any, in respect of the other Long-Term Debt) on a pro rata and pari passu basis taking into account the respective principal amounts thereof at the time outstanding; and (ii) second, if the Long-Term Dollar Notes and the other Long-Term Debt (together with all accrued interest and Increased Costs, if any, on the Long-Term Dollar Notes and accrued interest and "increased costs", if any, in respect of the other Long-Term Debt) have been paid in full, to prepay or redeem, as applicable, the Medium-Term Dollar Notes and the other Medium-Term Debt (together with all accrued interest and Increased Costs, if any, in respect of the Medium-Term Dollar Notes and accrued interest and "increased costs", if any, in respect of the other Medium-Term Debt) in the inverse order of maturity on a pro rata and pari passu basis taking into account the respective principal amounts thereof at the time outstanding.
(d) If, pursuant to the Restructuring and after giving effect to the Cash Tender Offer, the Issuer shall have an amount greater than five million Dollars ($5,000,000) remaining from the amount originally allocated for the consummation of the Cash Tender Offer, the Issuer shall apply on the Effective Date one-hundred percent (100%) of such remaining amount to prepay or redeem, as applicable, the Long-Term Dollar Notes and the other Long-Term Debt on a pro rata and pari passu basis taking into account the respective principal amounts thereof at the time outstanding. Amounts of principal prepaid under this subsection (d) shall be allocated by the Agent pro rata between the Long-Term Dollar Notes being prepaid in proportion to their respective principal amounts outstanding and ratably to the installments thereof.
(e) Any mandatory prepayment of the Long-Term Dollar Notes or the Medium-Term Dollar Notes pursuant to this Section 3.2 shall be made without premium or penalty other than as provided in Section 9.3(d) together with (i) accrued interest to the date of such prepayment on the principal amount prepaid and on any other amount payable pursuant to Section 3.9(f) and (ii) any Increased Costs then payable, together with all other amounts then payable under this Agreement.
Section 3.3. Interest. (a) Regular Interest. Subject to the provisions of clauses (b) and (c) of this Section 3.3, the Issuer shall pay interest on the unpaid principal amount of each
Restructured Dollar Note owing to each Holder until such principal amount shall be paid in full, in arrears, on each Interest Payment Date at the following rates per annum:
(i) Each Long-Term Dollar LIBOR Note shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBO Rate for such Interest Period plus the Long-Term Dollar Applicable Margin.
(ii) Each Long-Term Dollar Fixed Rate Note shall bear interest for each day during each Interest Period with respect thereto at the Long-Term Dollar Fixed Rate.
(iii) Each Medium-Term Dollar LIBOR Note shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the LIBO Rate for such Interest Period plus three and one-half percent (3.5%) per annum.
(iv) Each Medium-Term Dollar Fixed Rate Note shall bear interest for each day during each Interest Period with respect thereto at the Medium-Term Dollar Fixed Rate.
(v) Each Subordinated Dollar LIBOR Note shall bear interest for each day
during each Interest Period with respect thereto (A) in cash at a
rate per annum equal to the LIBO Rate for such Interest Period plus
the Subordinated Dollar Applicable Margin, and (B) in the form of
(I) a Subordinated Dollar LIBOR PIK Note 2014 at the Subordinated
Dollar PIK Rate for Interest Periods through but not including
January 1, 2014 and (II) a Subordinated Dollar LIBOR PIK Note 2019
at the Subordinated Dollar PIK Rate for any Interest Period
thereafter.
(vi) Each Subordinated Dollar Fixed Rate Note shall bear interest for
each day during each Interest Period with respect thereto (A) in
cash at the Subordinated Dollar Fixed Rate, and (B) in the form of
(I) a Subordinated Dollar Fixed Rate PIK Note 2014 at the
Subordinated Dollar PIK Rate for Interest Periods through but not
including January 1, 2014 and (II) a Subordinated Dollar Fixed Rate
PIK Note 2019 at the Subordinated Dollar PIK Rate for any Interest
Period thereafter.
(vii) Each Subordinated Dollar LIBOR PIK Note shall bear interest for each day during each Interest Period with respect thereto (A) in cash at a rate per annum equal to the LIBO Rate for such Interest Period plus the Subordinated Dollar Applicable Margin, and (B) in the form of (I) a Subordinated Dollar LIBOR PIK Note 2014 at the Subordinated Dollar PIK Rate for Interest Periods through but not including January 1, 2014 and (II) a Subordinated Dollar LIBOR PIK Note 2019 at the Subordinated Dollar PIK Rate for any Interest Period thereafter.
(viii) Each Subordinated Dollar Fixed Rate PIK Note shall bear interest
for each day during each Interest Period with respect thereto (A) in
cash at the Subordinated Dollar Fixed Rate, and (B) in the form of
(I) a Subordinated Dollar Fixed Rate PIK Note 2014 at the
Subordinated Dollar PIK Rate for Interest Periods through but not
including January 1, 2014 and (II) a Subordinated Dollar Fixed Rate
PIK Note 2019 at the Subordinated Dollar PIK Rate for any Interest
Period thereafter.
(b) Change in Interest Period. Without prejudice to the provisions of
Section 3.5, if at any time the Issuer fails to pay any amount of principal of,
or interest on, the Restructured Dollar Notes when due (whether at stated
maturity or upon acceleration or otherwise), and any part of that amount remains
unpaid on the third (3rd) Business Day immediately preceding any Interest
Payment Date falling after that amount became due, then:
(i) the Agent (acting at the prior written direction of the Required Holders) may elect that the duration of the Interest Period commencing on that Interest Payment Date shall be one (1) month and shall notify the Issuer of that election; and
(ii) unless an Event of Default or Potential Event of Default has occurred and is continuing, the Agent shall reinstate Interest Periods of six (6) months as of the first (1st) Interest Payment Date occurring at least three (3) Business Days after the failure to pay such principal and/or interest is remedied in full and the Agent shall notify the Issuer of that reinstatement.
(c) Default Interest Rate. (i) Without limiting the remedies available to the Holders under this Agreement or otherwise (and to the maximum extent permitted by Applicable Law), if the Issuer fails to make any payment of principal of or interest on or any other payment provided for herein when due (whether at stated maturity or upon acceleration or otherwise), the Issuer shall pay interest on the amount of that payment due and unpaid at the Default Interest Rate.
(ii) Interest at the rate referred to in clause (i) above shall accrue from and including the date on which payment of the relevant overdue amount became due and was not paid until and including the date of actual payment of that amount (as well after as before judgment), and shall be payable on demand by the Holders of the related Notes or, if not demanded, on each Interest Payment Date falling after any such overdue amount became due.
Section 3.4. Agent's Fees. As consideration for the services to be provide by the Agent hereunder, the Issuer shall pay to the Agent for the Agent's own account such fees as may from time to time be agreed between the Issuer and the Agent in writing. The obligation of the Issuer to pay such fees (to the extent already accrued) to the Agent shall survive the termination of this Agreement and of the earlier resignation or removal of the Agent.
Section 3.5. Alternate Rate of Interest. If on any Interest Determination Date (the "Affected Interest Period"):
(a) the Agent determines (which determination shall be conclusive absent manifest error) that, by reason of changes arising after the Effective Date, adequate and reasonable means do not exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Agent is notified in writing by the Required Holders that the LIBO Rate for such Interest Period, by reason of changes arising after the Effective Date, will not adequately and fairly reflect the cost to such Holders of making or maintaining their LIBOR Notes for such Interest Period,
then the Agent shall give notice thereof to the Issuer and the Holders as soon as practicable thereafter, and the interest rate during such Interest Period applicable to each LIBOR Note effective from the commencement of such Interest Period shall be the sum of (i) the weighted average of the amount necessary to compensate each Holder for its cost of obtaining, as of the commencement of such Interest Period, funds for such Interest Period in an amount equal to the principal amount of the applicable LIBOR Note, weighted in accordance with the aggregate principal amount of LIBOR Notes outstanding owed to each Holder at such time (based solely on a certificate delivered by a Responsible Officer of each Holder to the Agent setting forth the basis of such Holder's computation of such amount for such Holder, which certificate shall be conclusive and binding for all purposes absent manifest error) and promptly notified in writing to the Holders and the Issuer, plus (ii)(A) the Long-Term Dollar Applicable Margin, in the case of each Long-Term Dollar LIBOR Note, (B) three and one-half percent (3.5%) in the case of each Medium-Term Dollar LIBOR Note, and (C) the Subordinated Dollar Applicable Margin, in the case of each Subordinated Dollar LIBOR Note and each Subordinated Dollar LIBOR PIK Note. Each Holder shall deliver such certificate to the Agent as promptly as practicable after receipt of the Agent's notice referred to above; provided that in the event that any of the events described in this Section 3.5 shall have occurred, the Issuer shall have the option, at it sole discretion, to prepay, without premium or penalty, any of the LIBOR based Restructured Dollar Notes affected thereby.
Section 3.6. Increased Costs, Etc. (a) Except with respect to Taxes which shall be governed by Section 3.8, if any Change in Law or compliance with any guideline or request (that was not in effect as of the date hereof or otherwise not required) from any Authority (whether or not having the force of law) shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Holder;
(ii) impose on any Holder or the London interbank market any other condition affecting this Agreement or LIBOR Notes held by such Holder; or
(iii) impose on any Holder any other condition;
and the result of any of the foregoing shall be to increase the cost to such Holder of maintaining any LIBOR Note or to reduce the amount of any sum received or receivable by such Holder hereunder (whether of principal, interest or otherwise) in connection with such LIBOR Notes, then the Issuer will promptly pay to such Holder such additional amount or amounts as will compensate such Holder for such additional costs incurred or reduction suffered.
(b) If any Holder determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Holder's capital or on the capital of such Holder's holding company, if any, as a consequence of this Agreement or the Restructured Dollar Notes made by such Holder to a level below that which such Holder or such Holder's holding company could have achieved but for such Change in Law (taking into consideration such Holder's policies and the policies of such Holder's holding company with respect to capital adequacy), then, from time to time, the Issuer will promptly pay to such Holder
such additional amount or amounts as will compensate such Holder or such Holder's holding company for any such reduction suffered.
(c) A certificate of a Holder (an "Increased Costs Certificate") setting forth in reasonable detail the amount or amounts necessary to compensate such Holder or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Issuer and shall be conclusive absent demonstrable error.
(d) Failure or delay on the part of any Holder to demand compensation pursuant to this Section shall not constitute a waiver of such Holder's right to demand such compensation; provided that the Issuer shall not be required to compensate a Holder pursuant to this Section 3.6 for any increased costs or reductions incurred more than one hundred and eighty (180) days prior to the date that such Holder notifies the Issuer of the Change in Law giving rise to such increased costs or reductions and of such Holder's intention to claim compensation therefore; provided, further, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the one hundred and eighty (180) day period referred to above shall be extended to include the period of retroactive effect thereof.
Section 3.7. Illegality. Notwithstanding any other provision of this Agreement, in the event of any Change in Law or determination, order, injunction or judgment of an arbitrator or a court or other Authority ("Requirement of Law") binding on any Holder makes it unlawful for such Holder at its Holder Address to purchase, own, hold or maintain its Restructured Dollar Notes, then such Holder shall promptly notify the Issuer (by means of notice through the Agent) thereof following which, if such Requirement of Law shall so mandate, the Restructured Dollar Notes of such Holder shall be prepaid by the Issuer on or before such date as shall be mandated by such Requirement of Law; provided, however, that if it is lawful for such Holder to maintain the Restructured Dollar Notes through the last day of the current Interest Period, such payment shall be made on such date. Each Holder agrees that, upon the occurrence of any event giving rise to the operation of this Section 3.7 with respect to such Holder, it will, if requested by the Issuer, prior to any prepayment, use reasonable efforts (subject to overall policy considerations of such Holder) to designate another Holder Address for any Note affected by such event; provided, however, that such designation is made on such terms that, in the sole judgment of such Holder, such Holder and its Holder Address suffer no economic, legal or regulatory disadvantage, with the object of mitigating or avoiding the consequences of the event giving rise to the operation of such Section.
Section 3.8. Taxes. The Issuer covenants and agrees that:
(a) Subject to clause (c) of this Section 3.8, all payments on account of principal of and interest on the Restructured Dollar Notes, fees and all other amounts payable hereunder or under the Notes by the Issuer to or for the account of the Agent and each Holder including amounts payable under clauses (b), (c) and (e) of this Section 3.8, shall be made free and clear of, and without deduction or withholding for or by reason of, any and all present and future income, stamp, excise, asset, value added and any other Taxes and levies, imposts, deductions, charges and withholdings whatsoever now or hereafter imposed, assessed, levied or collected by the Country or any political subdivision or taxing authority thereof or therein together with interest thereon and penalties with respect thereto, if any, on, under or in respect of this
Agreement or the Notes, principal of and interest on the Restructured Dollar Notes, fees and all other amounts payable hereunder or under the Notes, the registration, notarization or other formalization of any thereof, any payments of principal, interest, charges, fees or other amounts made on, under or in respect thereof (but excluding any tax imposed on or measured by the net income of a Holder pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office of such Holder or the office through which the Holder holds the Notes is located or any subdivision thereof or therein) (herein collectively called "Argentine Taxes"), all of which Argentine Taxes will be paid by the Issuer, for its own account, prior to the date on which penalties attach thereto.
(b) The Issuer shall indemnify the Agent and each Holder against, and reimburse the Agent and each Holder on demand for, any Argentine Taxes (including any Argentine Taxes imposed on amounts payable under this Section 3.8(b)) imposed on or paid by the Agent or such Holder and any loss, liability, claim or expense, including interest, penalties and legal fees, which the Agent or such Holder may incur at any time arising out of or in connection with any failure of the Issuer to make any payments of Argentine Taxes when due.
(c) To the extent that the Issuer is required by applicable law, decree or regulation to deduct or withhold Argentine Taxes from any amounts payable on, under or in respect of the Financing Agreements, the Issuer shall pay such additional amounts as may be required, after deduction or withholding of Argentine Taxes (including such withholding or deduction applicable to such additional amounts), to enable the Agent and each Holder to receive from the Issuer an amount equal to the amount stated to be payable on, under or in respect of this Agreement and the Notes in the absence of such deduction or withholding. Each Holder agrees that, upon the occurrence of any event giving rise to the operation of this Section 3.8(c) with respect to such Holder, it will, if requested by the Issuer, use reasonable efforts (subject to overall policy considerations of such Holder) to designate another office through which the Holder holds any Note affected by such event; provided, however, that any such designation shall be made only on such terms that, in the sole reasonable judgment of such Holder, such Holder and the office through which such Holder holds any such Notes suffer no material economic, legal or regulatory disadvantage.
(d) The Issuer shall furnish to the Agent original tax receipts in respect
of any deduction or withholding of Argentine Taxes, if available, or such other
documentation acceptable to the Agent (with the prior written direction of the
Required Holders), promptly and in any event within thirty (30) days after the
date the Issuer is required to remit such deduction or withholding to the
relevant tax authority, and the Issuer shall promptly furnish to the Agent any
other information, documents and receipts that the Agent may reasonably, from
time to time, require to establish to its satisfaction that full and timely
payments have been made of all Argentine Taxes required to be paid under this
Section 3.8.
(e) The Issuer shall pay all present and future Argentine Taxes, including but not limited to stamp taxes, imposts, contributions, charges, deductions, withholdings, duties and similar fees which are imposed, assessed, levied or collected in connection with the execution, delivery, registration, notarization, enforcement, performance or any other act related thereto, of Financing Agreements and any documents related thereto and shall, upon written notice from the Agent, indemnify against and reimburse the Agent and each Holder for any such taxes, imposts,
contributions, charges, deductions, withholdings, duties and fees (including any such taxes, imposts, contributions, charges, deductions, withholdings, duties and fees imposed on amounts payable under this Section 3.8(e)).
(f) If a Holder or Participant receives a refund of, or credit or other tax benefit with respect to, any Tax paid by the Issuer hereunder (a "Tax Benefit"), such Holder or Participant, as the case may be, shall promptly transfer to the Issuer an amount that the Holder or Participant shall, in its sole reasonable discretion, determine is equal to the benefit obtained by the Holder or the Participant as a consequence of such Tax Benefit together with any interest paid to such Holder or Participant, as the case may be, by the relevant Authority with respect to such Tax Benefit, if any; provided, however, that, in the event such Holder or Participant, as the case may be, is subsequently required by any Authority to repay such Tax Benefit, then the Issuer shall promptly repay the amount of such Tax Benefit to such Holder or Participant, as the case may be. Nothing in this Section 3.8(f) shall require a Holder or a Participant to disclose any confidential information to the Issuer (including its Tax returns).
(g) In case of an assignment or Participation, Sections 3.8(a), 3.8(b), and 3.8(c) shall only apply to the extent that any Taxes imposed do not exceed the Taxes imposed as of the date immediately before such assignment or Participation, unless such assignment or Participation shall not result in a greater payment by the Issuer than would have resulted had the Holder who originally owned the relevant Note remained the owner thereof.
(h) Sections 3.8(a), 3.8(b), and 3.8(c) shall not apply to the extent that the amount of Taxes deducted or withheld would have been reduced or eliminated if the Holder or Participant had provided to the Issuer and/or any relevant Authority any form, certificate, document or other information if (i) such form, certificate, document, or other information is required by law, administrative practice, or applicable treaty as a precondition to exemption or reduction in the rate of deduction or withholding of Taxes for which the Issuer is required to pay additional amounts pursuant to Section 3.8(c), (ii) at least thirty (30) days prior to the first Payment Date with respect to which the Issuer shall apply this Section 3.8(h), the Issuer shall have notified the Holder or Participant that it will be required to comply with clause (i), above, and (iii) as a result of complying with clause (i), the Holder or Participant will not, in its sole reasonable judgment, suffer any material legal, economic, or regulatory disadvantage.
Section 3.9. Payments Generally; Pro Rata Treatment. (a) The Issuer shall make each payment required to be made by it hereunder (whether of principal, interest or of amounts payable under Section 3.6, 3.8 or 9.3(d), or otherwise) and under the Notes prior to 11:00 AM, New York City time, on the date when due, in Dollars in immediately available funds, without set-off or counterclaim. All such payments shall be made to the Agent at the Agent's Account in same day funds. The Agent will promptly thereafter cause like funds to be distributed (i) if such payment by the Issuer is in respect of principal, interest, or any other Obligation then payable hereunder and under the Notes to more than one Holder, to such Holders for the account of their respective Holder Addresses ratably in accordance with the amounts of such respective Obligations then payable to such Holders and (ii) if such payment by the Issuer is in respect of any Obligation then payable hereunder to one Holder, to such Holder for the account of its Holder Address, in each case to be applied in accordance with the terms of this Agreement. Upon its receipt of an Assignment and Acceptance and recording of the information contained
therein in the Register pursuant to Section 9.4(d), from and after the effective date of such Assignment and Acceptance, the Agent shall make all payments hereunder and under the Notes in respect of the interest assigned thereby to the Holder assignee thereunder, and the parties to such Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.
(b) All interest and fees hereunder shall be computed on the basis of a year of three hundred sixty (360) days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
(c) If any payment hereunder or under the Notes shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest; provided that if such extension would cause payment of principal or interest of LIBOR Notes to be made in the next calendar month, such payment shall be on the next preceding Business Day.
(d) The tender or payment of any amount payable under this Agreement (whether or not by recovery under a judgment) in any currency other than Dollars shall not novate, discharge or satisfy the obligation of the Issuer to pay in Dollars all amounts payable under this Agreement except to the extent that (and as of the date when) the Agent actually receives funds in Dollars in the account specified in, or pursuant to, Section 3.9(a).
(e) The Issuer shall indemnify the Agent and the Holders against any losses resulting from a payment being received or an order or judgment being given under this Agreement in any currency other than Dollars or any place other than the Agent's Account. The Issuer shall, as a separate obligation, pay such additional amount as is necessary to enable the Agent to receive, after the prompt conversion to Dollars at a market rate, the full amount due under this Agreement in Dollars.
(f) Notwithstanding the provisions of Section 3.9(a) and Section 3.9(d), the Agent may require the Issuer to pay (or reimburse the Agent and the Holders) for any Taxes, fees, costs, expenses and other amounts payable under Section 3.8 in the currency in which they are payable, if other than Dollars.
Section 3.10. Sharing of Payments, Etc. If any Holder shall obtain at any time any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise, other than as a result of an assignment pursuant to Section 9.4), (a) on account of Obligations due and payable to such Holder hereunder and under the Notes at such time in excess of its ratable share (according to the proportion of (x) the amount of such Obligations due and payable to such Holder at such time to (y) the aggregate amount of the Obligations due and payable to all Holders hereunder and under the Notes at such time) of payments on account of the Obligations due and payable to all Holders hereunder and under the Notes at such time obtained by all the Holders at such time or (b) on account of Obligations owing (but not due and payable) to such Holder hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (x) the amount of Obligations owing (but not due and payable) to such Holder at such time to (y) the aggregate amount of Obligations owing (but not due and payable) to all Holders hereunder and under the Notes at such time) of payments on account of the Obligations owing (but not due and payable) to all Holders hereunder and under the Notes at such time obtained by all of the Holders at such time, such Holder shall forthwith purchase from the other Holders such interests or participating interests in the Obligations due and payable or owing to them, as the case may be, as shall be necessary to cause such purchasing Holder to share the excess payment ratably with each of them; provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Holder, such purchase from each other Holder shall be rescinded and such other Holder shall repay to the purchasing Holder the purchase price to the extent of such Holder's ratable share (according to the proportion of (A) the purchase price paid to such Holder to (B) the aggregate purchase price paid to all Holders) of such recovery together with an amount equal to such Holder's ratable share (according to the proportion of (A) the amount of such other Holder's required repayment to (B) the total amount so recovered from the purchasing Holder) of any interest or other amount paid or payable by the purchasing Holder in respect of the total amount so recovered. The Issuer agrees that any Holder so purchasing an interest or participating interest from another Holder pursuant to this Section 3.10 may, to the fullest extent permitted by law, exercise all its rights of payment (including the right of set-off) with respect to such interest or participating interest, as the case may be, as fully as if such Holder were the direct creditor of the Issuer in the amount of such interest or participating interest, as the case may be.
ARTICLE IV
Representations and Warranties
The Issuer represents and warrants to the Holders and to the Agent, as of the Signing Date and the Effective Date, except as expressly set forth herein, that:
Section 4.1. Organization; Powers. The Issuer and each of its Subsidiaries
(i) is a company duly incorporated and validly existing under the laws of the
jurisdiction of its incorporation, (ii) has obtained all required Authorizations
to own its assets and conduct its business as presently conducted, and (iii) has
the power, authority and legal right to enter into and perform its obligations
under the Financing Agreements to which it is a party or will, in the case of
any Financing Agreement not executed as at the date of this Agreement, when that
Financing Agreement is executed, have the power, authority and legal right to
enter into and comply with its obligations under that Financing Agreement.
Section 4.2. No Conflicts. Neither the execution, delivery or performance of any Financing Agreement to which the Issuer is a party nor the compliance with its terms will conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default or require any consent under, any indenture, mortgage, agreement or other instrument or arrangement (except those indentures, mortgages, agreements or other instruments or arrangements relating to, and/or in connection with, any Surviving Debt) to which the Issuer is a party or by which it is bound, or violate any of the terms or provisions of the Issuer's Charter or any Authorization, judgment, decree or order or any statute, rule or regulation (including Regulation X of the Board of Governors of the Federal Reserve System) applicable to the Issuer
or result in or require the creation or imposition of any Lien upon or with respect to any of the properties of the Issuer or any of its Subsidiaries.
Section 4.3. Due Authorization; Enforceability. Each Transaction Document to which the Issuer is a party has been, or will be, duly authorized and executed by the Issuer and constitutes, or will constitute when executed, a valid and legally binding obligation of the Issuer, enforceable in accordance with its terms, subject to (i) applicable bankruptcy, insolvency and other similar laws affecting creditor's rights generally, and (ii) general equitable principles regardless of whether the issue of enforceability is considered in a proceeding in equity or at law.
Section 4.4. No Additional Authorization, Etc. All the Authorizations needed by the Issuer to conduct its business and execute and comply with its obligations under, this Agreement and each of the other Transaction Documents to which it is a party or under which the Issuer is in any manner obligated have been obtained (except those Authorizations from the Central Bank that may become necessary for the Issuer to make prepayments in accordance with the provisions hereof) and are final and in full force and effect and the Issuer has not received any notice of proceedings relating to the revocation, cancellation, expropriation or modification of any such Authorization.
Section 4.5. Compliance with Law. The Issuer and each of its Subsidiaries is not in violation of any material statute or regulation of any Authority (including social security laws and retirement and pension funds laws and all regulations and requirements of the Argentine National Securities Commission (Comision Nacional de Valores)), and its successors.
Section 4.6. Properties. The Issuer and each of its Subsidiaries have good and marketable title to, or valid leasehold interests in, all its real and personal property material to its business, in each case free and clear of all Liens other than those Liens permitted by Section 6.4(a).
Section 4.7. Material Litigation. Neither the Issuer nor any of its respective directors, officers or employees, is engaged in, nor, to the best of its knowledge, threatened by, any litigation, arbitration or administrative proceedings, (i) the outcome of which could be expected, individually or in the aggregate, to have a Material Adverse Effect or (ii) which purports to affect the legality, validity or enforceability of this Agreement or any other Transaction Document or to prevent or enjoin any of the transactions contemplated hereby or thereby.
Section 4.8. Civil and Commercial Law; No Immunity. The Issuer is subject to civil and commercial law with respect to its obligations under the Financing Agreements, and the execution, delivery and performance by the Issuer of the Financing Agreements constitutes and will constitute private and commercial acts rather than public or governmental acts. The Issuer has waived every immunity to which it or any of its properties would otherwise be entitled from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) under the laws of the Country in respect of its obligations under the Financing Agreements.
Section 4.9. Taxes. All material tax returns and reports of the Issuer required by law to be filed have been duly filed and all material Taxes, obligations, fees and other governmental
charges upon the Issuer, or its properties, or its income or assets, which are due and payable or to be withheld, have been paid or withheld, other than any such liabilities that are being contested in good faith and by appropriate proceedings, and for which adequate reserves with respect thereto have been established to the extent required by the Accounting Principles.
Section 4.10. Withholding Taxes. There is no Tax, impost, deduction, charge or withholding imposed by the Country or any political subdivision or taxing authority thereof or therein on or by virtue of the execution or delivery of this Agreement.
Section 4.11. Full Disclosure. Neither any information, financial statement, exhibit, schedule nor any report furnished in writing by or on behalf of the Issuer to the Agent or any Holder in connection with the negotiation of the Financing Agreements or pursuant to the terms of the Transaction Documents (other than any projections, estimates or information of a general economic nature) contain, when taken as a whole, any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein not misleading in light of the circumstances under which they were made. All written information furnished after the date hereof by the Issuer to the Agent or any Holder in connection with this Agreement and the transactions contemplated hereby will be true, complete and accurate in all material respects or (in the case of projections) based on estimates believed by the Issuer to be reasonable, on the date of which such information is stated or certified. There is no fact known to the Issuer that could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein or in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished to the Agent and to the Holders for use in connection with the transactions contemplated hereby.
Section 4.12. Proper Legal Form; Immunity. This Agreement and the other Financing Agreements are in proper legal form under the laws of the Country for the enforcement thereof against the Issuer under the laws of the Country, and the obligations of the Issuer under this Agreement and the other Financing Agreements may be enforced (by judgment and levy) in accordance with their respective terms in a proceeding at law in any competent court in the Country; provided, however, that (i) an official Spanish translation of this Agreement or the other Financing Agreements, as applicable, is required to bring an action thereon in the courts of the Country and (ii) the enforcement of foreign judgments in the Country would be recognized if the requirements of Article 517 of the Argentine Federal Code on Civil and Commercial Procedure are met, including: (A) the judgment, which must be final in the jurisdiction where rendered, was issued by a competent court in accordance with Argentine laws regarding conflict of laws and jurisdiction and resulted from a personal action, or an in rem action regarding property that was transferred into Argentina during or after the prosecution of the foreign action; (B) the defendant against whom enforcement of the judgment is sought was personally served with the summons, in accordance with due process of law, and was given an opportunity to defend against the foreign action; (C) the judgment must be valid in the jurisdiction where rendered and its authenticity must be established in accordance with the requirements of Argentine law; (D) the judgment does not violate the principles of public policy of Argentine law; and (E) the judgment is not contrary to a prior or simultaneous judgment of an Argentine court.
Section 4.13. Pari Passu Ranking. This Agreement and the obligations evidenced hereby are and will at all times be direct and unconditional general obligations of the Issuer, and rank and will at all times rank in right of payment and otherwise at least pari passu with all other senior unsecured and unsubordinated Debt of the Issuer (other than obligations having priority by statute or operation of law), if any, whether now existing or hereafter outstanding.
Section 4.14. Investment Company Act. The Issuer is not an "investment company" subject to regulation under the U.S. Investment Company Act of 1940, as amended.
Section 4.15. Financial Statements. The financial statements of the Issuer for the Fiscal Years ending on December 31, 2003 and December 31, 2002, copies of which have been furnished to each Holder:
(a) have been prepared in accordance with the Accounting Principles applicable to the Issuer, and present fairly, in all material respects, the financial condition of the Issuer as of the date as of which they were prepared and the results of the Issuer's operations during the period then ended; and
(b) disclose all liabilities (contingent or otherwise) of the Issuer, and the reserves, if any, for such liabilities and all unrealized or anticipated liabilities and losses arising from commitments entered into by the Issuer (whether or not such commitments have been disclosed in such financial statements) required, pursuant to the Accounting Principles, to be disclosed therein.
Section 4.16. Transaction Documents. All representations and warranties made by the Issuer in the other Transaction Documents are true and correct in all material respects as of the date hereof.
Section 4.17. Surviving Debt. As at the date hereof the Issuer has no other Debt than (i) the Surviving Debt, as disclosed in Schedule 4.17, and (ii) the Restructured Debt.
Section 4.18. Existing Liens. The Issuer has no outstanding Lien on any of its assets except for Permitted Liens, and set forth in Schedule 4.18 is a complete and accurate list of all Existing Liens, showing as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or assets of the Issuer or its Subsidiary subject thereto.
Section 4.19. Material Adverse Effect. Since December 31, 2003, no event has occurred that has resulted in a Material Adverse Effect.
Section 4.20. Insolvency.
After giving effect to the consummation of the transactions contemplated in the Transaction Documents, the Issuer will not be rendered insolvent by the execution and delivery of the Transaction Documents or the consummation of the transactions contemplated thereby.
Section 4.21. Insurance.
The Issuer maintains, with financially sound and reputable insurers, insurance and reinsurance with respect to its assets and business operations in at least such amounts and against at least such risks as are usually insured against in the same general area by financial entities of established repute engaged in the same or a similar business.
Section 4.22. Labor Disputes.
There is no strike, slowdown or work stoppage or other labor dispute actually pending or, to the knowledge of the Issuer, threatened against or involving the Issuer, and there are no representation proceedings pending with any Authority in the Country involving the employees of the Issuer.
ARTICLE V
Conditions to Effectiveness
Section 5.1. Conditions Precedent to Effectiveness. This Agreement and the obligations of each Holder to exchange its Original Dollar Loans for Restructured Dollar Notes in accordance with the provisions of Article II shall become effective upon the fulfillment by the Issuer, in form and substance satisfactory to the Agent, of all and each of the following conditions (the first Business Day on which the last of such conditions shall have been satisfied, the "Effective Date"):
(a) The Agent (or its counsel) shall have received the following:
(i) This Agreement, duly executed and delivered by the Agent, the Issuer and each Holder party hereto;
(ii) A completed election notice substantially in the form of Exhibit E hereto dated on or prior to the date hereof (each such notice, an "Election Notice") from each Holder party hereto;
(iii) A copy of each of the Restructured IFC Loan Agreements, duly executed and delivered by IFC and the Issuer;
(iv) A copy of each of the Restructured IIC Loan Agreements, duly executed and delivered by IIC and the Issuer;
(v) A copy of the Restructured CCC Loan Agreement, duly executed and delivered by CCC and the Issuer;
(vi) A copy of the Grupo Galicia Agreement, duly executed and delivered by the parties thereto;
(vii) Certified copies of the Charter and of all corporate authority for the Issuer (including all necessary actions of the board of directors, shareholders, or other governing body) with respect to the Restructuring and the execution, delivery and
performance of all and each of the Financing Agreements to which the Issuer is a party and the transactions contemplated thereby;
(viii) Certified copies of the resolutions of the board of directors of the Issuer approving the Restructuring and each of the Transaction Documents to which the Issuer is or is to be a party and the transactions contemplated thereby, and of all documents evidencing other necessary corporate action and governmental and other third party approvals and consents, if any, with respect to each Transaction Document to which the Issuer is or is to be a party.
(ix) A certificate of the Issuer that the Issuer, and each of its Subsidiaries, (i) are not engaged in, nor, to the best of their knowledge, after due inquiry threatened by, any litigation, arbitration or administrative proceedings, the outcome of which has had or could reasonably be expected to have a Material Adverse Effect; (ii) have not requested a moratorium or suspension of payment of debts from any court; (iii) have not instituted proceedings or taken any form of corporate action to be liquidated, adjudicated bankrupt or insolvent; (iv) have not consented to the institution of bankruptcy or insolvency proceedings against it; (v) have not filed a petition or answer or consent seeking reorganization or relief under any Applicable Law or consented to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of them or of any substantial part of their respective property; (vi) have not made a general assignment for the benefit of their respective creditors; and the Issuer has certified to the Agent that there shall not (y) be in effect any statute, regulation, order, decree or judgment of any Authority that makes illegal or enjoins or prevents the consummation of the transactions contemplated by this Agreement or any other Transaction Document or (z) have been commenced or, to the best knowledge of the Issuer, threatened any action or proceeding that seeks to prevent or enjoin any transactions contemplated by this Agreement or any other Transaction Document;
(x) A certificate of the Issuer that no Event of Default and no Potential Event of Default shall have occurred and be continuing except for those that may occur if the restructuring contemplated herein, or in any other Transaction Document, does not become effective in accordance with the terms and conditions set forth in the respective Transaction Documents;
(xi) Certified copies of all licenses, authorizations and approvals of, and notices to and filings and registrations with, any Authority (including exchange control approvals) or any third party required in connection with the execution, delivery and performance of each of the Financing Agreements;
(xii) A favorable written opinion (addressed to the Agent and the Holders and dated the Effective Date) of White & Case LLP, special New York counsel for the Issuer, in form and substance reasonably satisfactory to the Documentation Agent;
(xiii) A favorable written opinion (addressed to the Agent and the Holders and dated the Effective Date) of Estudio Beccar Varela, special Argentine counsel to the Issuer, in form and substance reasonably satisfactory to the Documentation Agent;
(xiv) A favorable written opinion (addressed to the Holders and dated the Effective Date) of Marval, O'Farrell & Mairal, special Argentine counsel to the Holders, in form and substance reasonably satisfactory to the Documentation Agent;
(xv) A favorable written opinion (addressed to the Holders and dated the Effective Date) of Mayer, Brown, Rowe & Maw LLP, special New York counsel to the Holders, in form and substance reasonably satisfactory to the Documentation Agent;
(xvi) A Certificate of Incumbency and Authority, substantially in the form of Exhibit G hereto;
(xvii) A copy of the authorization to the Auditors referred to in Section 6.1(d); and
(xviii) Any other Transaction Documents specified by the Agent prior to the Effective Date.
(b) Representations and Warranties. On and as of the Effective Date, the Issuer shall have certified to the Agent and the Holders that the representations and warranties made in Article IV are true and correct.
(c) Insurance. The Issuer shall have insured its assets and business operations in accordance with Section 6.1(m).
(d) Notes. The Agent (or its counsel) shall have received the Notes issued pursuant to Section 2.14 payable to each of the Holders, executed by a Responsible Officer of the Issuer with his/her signature and in the case of each Note held in the Country, notarized by an Argentine public notary.
(e) Payment of Accrued Interest. The Issuer shall have paid to the Agent Account, for the benefit of each Holder, an amount equal to the Effective Date Interest Amount of such Holder, in the amount for each Holder as set forth on Schedule 5.1(b)(ii).
(f) Consummation of Equity Participation Tender Offer. Subject to the proration and reallocation procedure set forth in Schedule 2.1 or any other provision hereof, each Holder shall have received Preferred Shares in the amount set forth opposite such Holder's name on the Allocation Notice (which amount shall be equal to one thousand four hundred and ninety (1,490) Preferred Shares (or Preferred Shares and cash, if any) in exchange for each one thousand Dollars ($1,000) of the Adjusted Principal Amount of Existing Bank Debt of such Holder exchanged in the Equity Participation Tender Offer for which such Holder did not receive Medium-Term Dollar Notes).
(g) Consummation of BODEN Tender Offer. Subject to the proration and reallocation procedure set forth in Schedule 2.1 or any other provision hereof, each Holder shall have received the BODEN Tender Offer Exchange Amount set forth opposite such Holder's name on the Allocation Notice (which amount shall be equal to eighty-two percent (82%) of the amount of the Adjusted Principal Amount of Existing Bank Debt of such Holder exchanged in the BODEN Tender Offer).
(h) Consummation of Cash Tender Offer. Subject to the proration and reallocation procedure set forth in Schedule 2.1 or any other provision hereof, each Holder shall have received the Cash Tender Offer Payment Amount set forth opposite such Holder's name on the Allocation Notice (which amount shall be equal to fifty point sixty-five percent (50.65%) of the amount of the Adjusted Principal Amount of Existing Bank Debt of such Holder exchanged in the Cash Tender Offer).
(i) Consummation of Bank Debt Restructuring. The Agent shall have received, in form and substance satisfactory to the Agent, (i) a certificate of a Responsible Officer of the Issuer certifying that (x) holders of at least ninety-five percent (95%) of the aggregate principal amount of the Existing Bank Debt and the Existing Bonds shall have agreed to restructure such obligations pursuant to the Transaction Documents and (y) all conditions to effectiveness under the Restructured IFC Loan Agreements, the Restructured IIC Loan Agreements, the Restructured CCC Loan Agreement and the New Trade Debt Agreement shall have been fulfilled or waived in accordance with the terms thereof (other than any condition set forth therein which is conditioned upon the effectiveness of this Agreement), and (ii) written confirmation from (A) the Issuer under the Restructured IFC Loan Agreements confirming the effective date of each of the Restructured IFC Loan Agreements; (B) the Issuer under the Restructured IIC Loan Agreements confirming the effective date of each of the Restructured IIC Loan Agreements; (C) the Issuer under the Restructured CCC Loan Agreement confirming the effective date thereunder; and (D) the Issuer under the New Trade Debt Agreement confirming the effective date thereunder.
(j) Consummation of Bond Exchange Offer. The Agent has received a certificate of the Issuer certifying that the exchange contemplated in the Bond Exchange Offer has been completed.
(k) Fees. The Issuer shall have paid all accrued expenses of the Agent, the Documentation Agent and the Holders (including accrued fees and expenses of counsel thereto, which invoices may include an estimate of fees and expenses) for which detailed invoices have been received at least one (1) Business Day prior to the Effective Date.
(l) Expenses of Steering Committee Members. The Issuer shall have paid the expenses of each of the members of the Steering Committee accrued or to accrue through and including the Effective Date (to the extent invoiced, which invoices may include an estimate of expenses) (the "Steering Committee" being the ad hoc Steering Committee comprised of IFC, IIC, Bank One, N.A., Barclays Bank PLC, Bayerische Hypo- und Vereinsbank AG, JPMorgan Chase Bank, and the CCC).
(m) Appointment of Process Agent. The Agent shall have received, in form and substance satisfactory to the Agent evidence that (i) a Process Agent has been appointed to act as
the Issuer's agent for service of process and (ii) such Process Agent has accepted such appointment in substantially the form of Exhibit H hereto.
(n) Luxembourg Stock Exchange. The Agent has received a copy of the acceptance by the Luxembourg Stock Exchange of the Global Medium-Term Note Program.
(o) Agent Certificate. The Agent shall have received a certificate of a Responsible Officer of the Issuer certifying that the conditions set forth above in clauses (c), (f), (g), (h) and (l) have been met.
(p) Agent Notification. The Agent has notified the Issuer that the above conditions of effectiveness have been satisfied and of the Effective Date hereunder.
For the avoidance of doubt, notwithstanding the foregoing, the obligations
of the Holders hereunder shall not become effective unless each of the foregoing
conditions specified in this Section 5.1 shall have been satisfied or waived
and, in the event such conditions shall not have been so satisfied or waived,
(x) the Holders' agreement to consummate the exchange of Existing Bank Debt for
Restructured Dollar Notes hereunder shall terminate and (y) the original terms
and conditions applicable to the Existing Bank Debt shall continue in full force
and effect in their entirety, in all cases as if this Agreement and all other
documents and agreements in connection herewith or in relation hereto had never
been entered into by the parties hereto; provided, however, that (A) any
payments made by the Issuer as a consequence of, in relation to, or in
connection with, this Agreement shall survive such circumstance and shall be
deemed irrevocably made and effective for the purposes for which such payments
have been made under this Agreement; and (B) all other acts carried out by the
Issuer as a consequence of, in relation to, in connection with or by virtue of,
this Agreement shall continue to be governed by the provisions hereof, if and
when applicable.
ARTICLE VI
Covenants of the Issuer
Section 6.1. Affirmative Covenants. Until all principal of and interest on the Restructured Dollar Notes, and all other amounts owing hereunder and under the other Financing Agreements have been paid in full, the Issuer covenants and agrees with the Holders and the Agent that:
(a) Payment of Principal and Interest. The Issuer shall duly and punctually pay the principal of and interest and any Additional Amounts in accordance with the terms of the Financing Agreements.
(b) Conduct of Business and Maintenance of Existence and Approvals. The Issuer shall, and shall cause each of its Significant Subsidiaries to, (i) take all necessary steps to maintain in effect its corporate existence (including but not limited to, with respect to the Issuer, the authorization from the Central Bank to engage in the business of banking) and all registrations necessary therefor, (ii) take all reasonable actions to maintain all rights, licenses, permits, privileges, titles to Property, franchises and the like necessary or desirable in the normal conduct of its business, activities or operations, (iii) keep all its Property in good working order
or condition, and (iv) take all necessary steps to obtain and maintain in full force and effect all governmental or other regulatory approvals and consents (including the approval of the Argentine Comision Nacional de Valores) so that it may lawfully comply with its obligations under the Financing Agreements, and in such connection, the Issuer shall at all times comply with any Applicable Laws and ensure that all necessary action is taken so that it may lawfully comply with its obligations under the Financing Agreements; provided, however, that this covenant shall not prohibit any transaction by the Issuer or any of its Significant Subsidiaries otherwise permitted under Section 6.4(b) and this covenant shall not require the Issuer to maintain any such right, privilege, title to Property or franchise or to preserve the corporate existence of any Significant Subsidiary, if the board of directors of the Issuer shall reasonably determine that the maintenance or preservation thereof is no longer desirable in the conduct of the business of the Issuer and its Subsidiaries taken as a whole and that the loss thereof is not, and will not be, adverse in any material respect to the holders of the Restructured Debt.
(c) Maintenance of Books and Records. The Issuer shall, and shall cause its Subsidiaries to, maintain books, accounts and records in accordance with the Accounting Principles applicable to each such Person.
(d) Authorizations. The Issuer shall: (i) authorize, substantially in the form of Exhibit I hereto, the Auditors (whose fees and expenses shall be for the account of the Issuer) to communicate directly with the Agent from time to time, upon reasonable notice by the Agent (acting at the written direction of the Required Holders), regarding the Issuer's and its Subsidiaries' accounts and operations and furnish to the Agent a copy of such authorization; (ii) during normal business hours, and upon reasonable notice (acting at the written direction of the Required Holders), permit representatives of the Agent to visit any of the premises where the business of the Issuer is conducted and to have reasonable access to its books of account and records and to discuss the Issuer's affairs, finances and accounts with its officers and directors and the Auditors; and (iii) if Price Waterhouse & Co. ceases to be the auditors of the Issuer for any reason, appoint and maintain as the auditors of the Issuer another firm of "Big Four" internationally recognized independent public accountants and, within thirty (30) days after such appointment, deliver to the Agent a copy of an authorization to such firm substantially in the form of Exhibit I.
(e) Authorizations for Payments from Central Bank. The Issuer shall use its reasonable best efforts to obtain any Authorization or approval from the Central Bank, if and when necessary, for purposes of making any payment in Dollars from funds of the Issuer in the Country in respect of the Financing Agreements (including any exchange control approvals); provided, however, that such undertaking of the Issuer in this paragraph shall be without prejudice to its obligation to pay on a timely basis all and any amounts falling due under the Financing Agreements.
(f) Pari Passu Ranking. The Issuer shall ensure that at all times the obligations of the Issuer under the Financing Agreements (other than with respect to the Subordinated Debt) constitute the direct and unconditional obligations of the Issuer ranking in priority of payment at least pari passu (except for such exceptions as are or may hereafter be provided by Applicable Law) with all other unsecured and unsubordinated Debt of the Issuer.
(g) Governance. The Issuer: (i) from and after the six-month anniversary
of the Effective Date, shall cause the audit committee (which shall be at all
times sufficiently and broadly empowered to perform internal audits and to
review compensation of directors and senior management of the Issuer as well as
transactions with Affiliates) of its board of directors to have at least three
(3) members, a majority of which shall be "Independent Directors" (as such term
is defined in NASDAQ Stock Market Inc. Rule 4200(a)(15) and NASDAQ Stock Market
Inc. Rule 4350(d)(2)(A)); (ii) shall comply with Section 402 of the SOX Act (as
if the SOX Act were applicable to the Issuer as a foreign private issuer) and
the rules and regulations adopted by the SEC and the Public Company Accounting
Oversight Board thereunder; (iii) shall comply with the internal control report
requirements under Section 404(a) of the SOX Act (as if the SOX Act were
applicable to the Issuer as a foreign private issuer) and the rules and
regulations adopted by the SEC and the Public Company Accounting Oversight Board
thereunder; and (iv) shall implement a code of ethics as defined in Section
406(c) of the SOX Act, which code of ethics shall be applicable to its chief
executive and senior financial officers or persons performing similar functions.
(h) Compliance with Laws and Other Agreements. The Issuer shall, and shall cause each of its Subsidiaries to, comply with all Applicable Laws and all covenants and other obligations contained in any agreement to which the Issuer or any such Subsidiary is a party, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect. Without limiting the foregoing, the Issuer (a) shall comply with the Plan and its "matching" regime relating to the restructuring of its liabilities with the Central Bank pursuant to Decree No. 739/03 and Decree No. 1262/03 (as accepted by the Central Bank in a letter to the Issuer dated February 3, 2004 and by the Unidad de Reestructuracion del Sistema Financiero under Resolution No. 1/2003) and (b) shall not cause or permit the Plan and such "matching" regime to be amended in a way that would be materially adverse to the Issuer.
(i) Further Assurances. The Issuer shall, at its own cost and expense, execute and deliver (or cause to be executed, acknowledged and delivered) to the Agent all such other documents, instruments and agreements and do all such other acts and things as may be reasonably required by the Agent or at the written direction of the Required Holders, to enable the Agent to exercise and enforce its rights under the Financing Agreements and to carry out the intent of the Financing Agreements or otherwise to enable the Issuer to comply with its obligations under the Financing Agreements or for the purpose of obtaining or preserving the full benefits of this Agreement or any other Financing Agreement and of the rights, powers and remedies herein and therein granted.
(j) Maintenance of Office or Agency. The Issuer shall maintain each office or agency required under the Transaction Documents. The Issuer shall give prompt written notice to the Agent of any change in the location of any such office or agency.
(k) Payment of Taxes and Other Claim. The Issuer shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all material Taxes levied or imposed upon the Issuer or any Subsidiary of the Issuer or for which it or any of them are otherwise liable, or upon the income, profits or Property of the Issuer or any Subsidiary of the Issuer and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Lien upon the Property of the Issuer or any Subsidiary of the Issuer;
provided, however, that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such Tax if the amount, applicability or validity thereof is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of management of the Issuer), are being maintained in accordance with the Accounting Principles.
(l) Due Diligence. The Issuer shall conduct its business with due diligence and efficiency and in accordance with sound financial and business practices.
(m) Maintenance of Insurance. The Issuer shall (and shall cause each of its Subsidiaries to) insure and keep insured at all times all of their Properties and business operations which are of an insurable nature insured against loss or damage with insurers reasonably believed by the Issuer to be responsible to the extent that Property and business operations of similar characteristics are usually insured against in the same general area by financial entities of established repute engaged in the same or a similar business.
Section 6.2. Reporting Covenants. Until all principal of and interest on the Restructured Dollar Notes, and all other amounts owing hereunder and under the other Financing Agreements have been paid in full, the Issuer covenants and agrees with the Holders that the Issuer shall furnish or cause to be furnished to the Agent:
(a) as soon as available but in any event not later than one hundred
twenty (120) days after the close of each Fiscal Year in the case of the
documents referred to in (i), (iii), (iv), (vii), (viii) and (ix) below, and
within one hundred eighty (180) days after the close of each Fiscal Year in the
case of the documents referred to in clauses (ii), (v) and (vi) below: (i) a
complete copy of its annual report in the English language (an "Annual Report",
which shall include a consolidated balance sheet, consolidated statement of
income, consolidated statement of changes in stockholders' equity and
consolidated statement of cash flows for such Fiscal Year and will be audited
and accompanied by a report thereon of the Auditors), (ii) a certificate from
the Auditors containing a reconciliation to U.S. generally accepted accounting
principles of net income and shareholders' equity, (iii) a management letter
from the Auditors to the Issuer or to its management commenting on, among other
things, the adequacy of the Issuer's financial control procedures and accounting
systems and management information system, together with copies of any other
communication sent by the Auditors in relation to such procedures and systems;
(iv) a certificate from the Auditors certifying that, based on its Annual
Report, the Issuer was in compliance with the covenants contained in Section 6.3
as of the end of the relevant Fiscal Year (and including calculations thereof)
or, as the case may be, detailing any non-compliance; (v) a certificate from the
Issuer, certifying that it was in compliance with Section 402 of the SOX Act (as
if the SOX Act were applicable to the Issuer as a foreign private issuer), and
setting forth all outstanding loans and other obligations between the Issuer and
Grupo Galicia, Escasany, Ayerza and Braun Family Members or any Person holding
five percent (5%) or more of the Issuer's Capital Stock, or between the Issuer
and any of its Subsidiaries or Affiliates, (vi) commencing with the Fiscal Year
ended December 31, 2005, an internal control report by the Issuer containing the
information that would be required under Section 404(a) of the SOX Act (as if
the SOX Act were applicable to the Issuer as a foreign private issuer) and the
rules and regulations adopted by the SEC and the Public Company Accounting
Oversight Board thereunder, together with an attestation from the Auditors with
respect to such reporting as would be required by
Section 404(b) of the SOX Act (as if the SOX Act were applicable to the Issuer as a foreign private issuer) and the rules and regulations adopted by the SEC and the Public Company Accounting Oversight Board thereunder; (vii) a certificate from the Issuer certifying compliance with the corporate governance covenants contained in Section 6.1(g), (viii) a certificate from the Issuer setting forth the organizational structure of the Issuer, listing the percentages of Capital Stock and Voting Stock of the Issuer held by Grupo Galicia and certifying that no Change of Control has occurred in the relevant Fiscal Year and (ix) a certificate from the Issuer setting forth all claims, contingencies or commitments (broken down into cash and non-cash items) of the Issuer against its controlling shareholders or any of the Issuer's Subsidiaries or Affiliates;
(b) as soon as available but in any event not later than sixty (60) days after the end of each quarter of each Fiscal Year, (i) a quarterly report of the Issuer in the English language (a "Quarterly Report", which Quarterly Report shall include an unaudited, consolidated balance sheet, consolidated statement of income and consolidated statement of changes in shareholders' equity for such Fiscal Year or quarter of the Issuer and shall be subject to limited review by the Auditors in accordance with the Accounting Principles) and (ii) a certificate from the Auditors certifying the compliance with the covenants contained in Section 6.3 the relevant period or, as the case may be, detailing any non-compliance;
(c) notice of any Event of Default or Potential Event of Default promptly (and in any event within ten (10) calendar days) of the occurrence of such Event of Default or Potential Event of Default, accompanied by a certificate specifying the nature of such Event of Default or Potential Event of Default, the period of existence thereof and the action that the Issuer has taken or proposes to take with respect thereto;
(d) promptly by facsimile or telex not less than thirty (30) days before it takes place, notice of any meeting of its shareholders including the agenda of the meeting;
(e) promptly, copies of all notices, reports and other communications of the Issuer to its shareholders, and the minutes of all shareholders' meetings;
(f) promptly, such information as the Agent may from time to time reasonably request about the Issuer and its assets;
(g) promptly, notice of any proposed material change in the business or operations of the Issuer and of any event or condition which has had or might reasonably be expected to have a Material Adverse Effect;
(h) as soon as the Issuer becomes aware of any litigation or administrative proceedings before any Authority or arbitral body which might reasonably be expected to have a Material Adverse Effect, notice which shall specify the nature of such litigation or proceedings and the steps the Issuer is taking or proposes to take with respect thereto;
(i) promptly after the sending or filing thereof, copies of all material proxy statements, financial statements and reports and copies of all material regular, periodic and special reports that the Issuer files with the Argentine Comision Nacional de Valores or any Authority that may be substituted therefor, or with any national securities exchange; and
(j) promptly upon receipt thereof, all amendments, modifications or waivers of any provision of any of the Transaction Documents and, without limiting the foregoing, of any document, instrument or agreement evidencing or documenting Senior Debt of the Issuer.
Section 6.3. Financial Covenants. (a) Available Capital. The Issuer shall maintain at all times Available Capital that complies with the Capital Adequacy Guidelines.
(b) Unhedged Open Foreign Exchange Position. The Issuer shall maintain at all times an Unhedged Open Foreign Exchange Position not exceeding a percentage of Available Capital as established by the Central Bank.
(c) Three Month Maturity Gap. The Issuer shall maintain at all times a Three Month Maturity Gap not exceeding thirty percent (30%) of the outstanding amount of all of the Debt of the Issuer.
(d) Single Group Exposure Ratio. The Issuer shall maintain at all times a Single Group Exposure Ratio that complies with the levels specified by the Central Bank.
(e) Open Credit Exposure Ratio. The Issuer shall maintain at all times an Open Credit Exposure Ratio not exceeding twenty-five percent (25%).
For the avoidance of doubt, the Issuer shall calculate the foregoing ratios on a consolidated basis.
Section 6.4. Negative Covenants. Until the principal of and interest on the Restructured Dollar Notes, and all other amounts owing hereunder and under the other Financing Agreements, have been paid in full, the Issuer covenants and agrees with the Holders that:
(a) Permitted Liens. The Issuer shall not, and shall not permit any of its Significant Subsidiaries to, create, incur, assume or suffer to exist any Lien (except a Permitted Lien) on or with respect to any of their respective present or future Properties, unless, prior to or concurrently with the creation, incurrence or assumption of such Lien, the Issuer's obligations under this Agreement are secured equally and ratably thereby.
(b) Mergers, Consolidations, Sales and Leases. The Issuer shall not and the Issuer shall not permit any Significant Subsidiary to, merge, consolidate or amalgamate with or into (including the transfer to the Issuer of Property and liabilities of other financial entity pursuant to article 35 bis of the Financial Entities Act), or convey, sell, assign, transfer, lease or otherwise dispose of all or substantially all of its Properties to, any Person, unless both immediately before and after giving effect to such transaction, (i) no Event of Default and no Potential Event of Default shall have occurred and be continuing; (ii) any Person formed by any such merger, consolidation or amalgamation with the Issuer or the Person which acquires by conveyance, sale, assignment or transfer, or which leases all or substantially all of the Properties of the Issuer substantially as an entirety (such Person may be referred to herein as the "Issuer's Successor Corporation") shall expressly assume the due and punctual payment of the principal of, premium, if any, and interest on (including Additional Amounts, if any) all the Notes according to their terms, and the due and punctual performance of all of the covenants and obligations of the Issuer under the Financing Agreements; (iii) the Issuer's Successor Corporation (except in
the case of leases), if any, succeeds to and becomes substituted for the Issuer with the same effect as if it had been named in the Notes as the Issuer; (iv) the Issuer has delivered to the Agent an officer's certificate and an opinion of legal counsel, in form and substance satisfactory to the Agent, each stating that such merger, consolidation, amalgamation, conveyance, sale, assignment, transfer, lease or disposition and, if an amendment of or a waiver under the Financing Agreements is required in connection with such transaction, such amendment or waiver complies with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with; (v) such transaction is not a transaction which would or might reasonably be expected to have a Material Adverse Effect; (vi) to the extent that the value of the transactions is in excess of one percent (1%) of the total consolidated assets of the Issuer and its Subsidiaries taken as a whole: (A) after giving effect to such transaction, the Issuer's Successor Corporation must have a local credit rating with respect to its unsecured, non-credit enhanced Debt that is equal to or higher than the local credit rating of the unsecured, non-credit enhanced Debt of the Issuer immediately prior to such transaction (and, before such transaction is consummated, two (2) of the Rating Agencies shall have informed the Issuer in writing of such credit rating), and (B) the Person into which the Issuer or Significant Subsidiary is merged, consolidated or amalgamated or to which such assets are conveyed, sold, assigned, transferred, leased or disposed (the "Merging Entity") (1) must be a financial institution; and (2) must be organized under the laws of, and have its headquarters in, a country that is a member of the Organisation for Economic Co-operation and Development (OECD), Brazil, Chile or the Country, (vii) in an event of a merger, consolidation or amalgamation, the Issuer's Successor Corporation shall be in compliance with the covenants in Section 6.3 immediately after giving effect to such merger, consolidation or amalgamation in accordance with pro forma financial statements; provided that in the event any transaction provided for in this Section 6.4(b) would trigger a Change of Control, then the Merging Entity and the Issuer, as applicable, shall comply with the requirements of the proviso to Section 7.2(o).
(c) Restricted Payments. (i) The Issuer shall not, and shall not permit any Significant Subsidiary to, directly or indirectly, take any of the following actions (each a "Restricted Payment"):
(i) declare or pay any dividends or make any distributions in respect of shares of Capital Stock, other than dividends or distributions payable exclusively in Capital Stock to holders of such Capital Stock (provided that this clause (i) will not apply to dividends made to the Issuer by any consolidated Subsidiary so long as dividends are paid on a pro rata basis based on ownership of Capital Stock); or
(ii) purchase, redeem or otherwise acquire any Capital Stock of the Issuer or, unless done on a pro rata basis, any Capital Stock of any Subsidiary of the Issuer; provided, however, beginning the earlier of (1) January 2, 2010 if the installments of principal required to be paid on January 1, 2010, pursuant to Sections 2.9 through 2.12 have been paid in full or (2) upon prepayment of at least twenty percent (20%) of the original principal amount of the Restructured Dollar Long-Term Loans, the Issuer can repurchase, redeem or other otherwise acquire its Capital Stock, or any Capital Stock of its Subsidiaries, as the case may be, upon the exercise of
stock options if (x) such Capital Stock represents a portion
of the exercise price under the terms of agreements, including
employment agreements, or plans approved by the board of
directors of the Issuer and (y) such repurchases, redemptions
or other acquisitions do not in the aggregate exceed two
million five hundred thousand Dollars ($2,500,000) (or the
Dollar Equivalent in any other currency) for the period from
and including January 1, 2010 through the end of the Fiscal
Year ended December 31, 2012 and five million Dollars
($5,000,000) (or the Dollar Equivalent in any other currency)
in any Fiscal Year thereafter.
(ii) Notwithstanding the foregoing subsection (i) of this Section, the Issuer may, and may permit any Significant Subsidiary to, directly or indirectly, make a Restricted Payment in the event that:
(i) no Event of Default or Potential Event of Default shall have occurred and be continuing immediately prior to and after giving effect to such Restricted Payment;
(ii) the aggregate principal amount of outstanding Senior Debt is equal to or less than fifty percent (50%) of the aggregate principal amount of the Senior Debt originally issued; and
(iii) for each one Dollar ($1) paid on account of such Restricted Payment, the Issuer shall repay two Dollars ($2) of the principal of the Long-Term Debt in inverse order of maturity.
(d) Transactions with Affiliates. The Issuer shall not, and shall not permit any of its Subsidiaries to, enter into or permit to exist, directly or indirectly, any Affiliate Transaction, other than Affiliate Transactions entered into by the Issuer or any of its Subsidiaries (i) on an arm's length basis, (ii) in the ordinary course of business, (iii) with respect to any Affiliate Transaction with a value in excess of five million Dollars ($5,000,000) (or the Dollar Equivalent in any other currency), as to which two "Independent Directors" (as such term is defined in NASDAQ Stock Market Inc. Rule 4200(a)(15)) of the Issuer have certified, in a certificate provided to the Agent, to the effect that all such Affiliate Transactions entered into by the Issuer or any such Subsidiary in any Fiscal Year, as the case may be, were on an arm's-length basis and in the ordinary course of business, and setting out details of with whom Affiliate Transactions had been entered into during such Fiscal Year, and (iv) the amount of which, taken together with all other Affiliate Transactions then outstanding, does not exceed ten percent (10%) of the Issuer's Available Capital then outstanding; provided, that transactions between the Issuer and any of its majority-owned consolidated Subsidiaries shall not be subject to the restrictions set forth herein. Without limiting the foregoing, the Issuer shall not make any loan to (or otherwise enter into any transaction contemplated by the definition of Debt with) any director (executive or non-executive) of the Issuer, any direct or indirect holder of more than five percent (5%) of any class of stock of the Issuer, or any other Person included in the management of the Issuer, unless, in each case, (x) the board of directors of the Issuer specifically has approved such loan or other transaction and (y) the audit committee of the Issuer has been notified of the same.
(e) Limitation on Asset Dispositions. The Issuer shall not, and shall not permit any of its Significant Subsidiaries to, directly or indirectly, Transfer any of its Property except on an arm's-length basis (other than any transfer to Galicia Uruguay excluded by clause (ii) of the proviso at the end of the definition of "Debt"), provided that to the extent that any Transfer is for proceeds in excess of ten million Dollars ($10,000,000) or the asset subject to such Transfer has a fair market value in excess of ten million Dollars ($10,000,000), then prior to such Transfer the Issuer shall provide to the Agent an opinion as to the substantial fairness of the economic terms and conditions (including as to price) of such Transfer from an independent, internationally recognized, reputable investment bank or accounting firm. The Issuer shall, and shall cause the relevant Significant Subsidiary to, to the extent applicable, apply any Net Cash Proceeds received from any such Transfer as required pursuant to Section 3.2.
(f) Fundamental Changes. The Issuer shall not:
(i) change its organizational documents (including its Charter) in any manner which would be inconsistent with the provisions of this Agreement;
(ii) change its Fiscal Year; or
(iii) change the nature of its present business or operations.
(g) Prepayment of Other Debt. The Issuer shall not and shall not permit any of its Significant Subsidiaries to, directly or indirectly, take any of the following actions: prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of any subordination terms of, any Debt, unless the Issuer shall make, within five (5) days thereafter, a prepayment or redemption of the Long-Term Dollar Notes and the other Long-Term Debt on a pro rata and pari passu basis; provided that the following shall be permitted: (i) regularly scheduled or required repayments or redemptions of such Debt, (ii) mandatory prepayments or redemptions under Section 3.2, (iii) repayments of Surviving Debt with instruments with terms and conditions substantially similar to the Notes, (iv) with respect to any Subordinated Debt of the Issuer, capitalization of such Subordinated Debt into equity of the Issuer, and (v) any mandatory prepayment or repayment of Debt owed to the Central Bank pursuant to the "matching" regime as a result of the amortization or repayment profile of the assets relevant to such regime pursuant to Decree 1262/03.
(h) Accounting Changes. The Issuer shall not, and shall not permit any of its Subsidiaries to, make or permit any change in accounting policies or reporting practices, except as required or permitted by the Accounting Principles.
(i) Amendment, Etc., of Other Transaction Documents. The Issuer shall not cancel or terminate any agreement, instrument or document evidencing Debt in excess of ten million Dollars ($10,000,000) or consent to or accept any cancellation or termination thereof, or agree to or consent to or accept in any manner any other amendment, modification, waiver or change of any term or condition of any such agreement, instrument or document or take any other action that would (i) shorten the maturity or increase the amount of any payment of principal thereof, (ii) increase the interest rate or shorten the date for payment of interest thereon or (iii) result in any covenants or events of default thereunder being more restrictive in any material respect to
the Issuer than the covenants and Events of Default hereunder, except for any such cancellation, termination, amendment, modification, waiver or change that is made to Debt having an original maturity of one (1) year or less. For avoidance of doubt, but only to the extent specified in clause (ii) of the proviso at the end of the definition of Debt, certain obligations with respect to Galicia Uruguay are excluded from the definition of Debt.
(j) Prohibited Payments. The Issuer shall not make, authorize or allow, and shall not permit any Subsidiary, Affiliate, or other Person acting on behalf of the Issuer or any such Subsidiary or Affiliate to make, authorize or allow, any: offer, gift, payment, promise to pay or authorization of the payment of any money or anything of value, that unlawfully under Applicable Laws is used or is intended to be used with the purpose of influencing any act or decision or omission of any Authority or employee or official thereof. In addition, the Issuer agrees that if the Agent (pursuant to written notice of the Required Holders) notifies the Issuer of the Agent's concern as to a possible violation of this Section, the Issuer shall cooperate in good faith with the Agent and with the Agent's representatives to determine whether said violation has occurred or not. The Issuer shall respond in reasonable detail to any notification from the Agent, and shall provide at the Agent's request, any documentation in support of that response.
(k) Capital Expenditures; Investments. The Issuer shall not, and shall not permit any Significant Subsidiary to, make Capital Expenditures and/or Investments in excess, in the aggregate, of (i) twenty million Dollars ($20,000,000) (or the Dollar Equivalent in any other currency) for the period from and including the Effective Date through the end of the Fiscal Year ended December 31, 2004; (ii) twenty-five million Dollars ($25,000,000) (or the Dollar Equivalent in any other currency) for the Fiscal Year ended December 31, 2005; and (iii) thirty million Dollars ($30,000,000) (or the Dollar Equivalent in any other currency) during any Fiscal Year thereafter; provided that, notwithstanding the foregoing, the Issuer also may make Capital Expenditures during the term of this Agreement in connection with the construction of the Headquarter Office set forth in Part A of Schedule V up to an aggregate amount of twenty-five million Dollars ($25,000,000) (or the Dollar Equivalent in any other currency).
(l) Compensation of Directors, Etc. The Issuer shall not, and shall not permit any Significant Subsidiary to:
(i) pay fees to the members of its board of directors during any Fiscal Year, or enter into agreements or any other kind of transactions pursuant to which the Issuer shall (or shall be obligated to) pay fees, salaries, retainers or any other kind of compensation to the members of its board of directors during any Fiscal Year, if the aggregate amount of fees, salaries, retainers or other compensation covered by this clause (i) during such Fiscal Year would exceed one million five hundred thousand Dollars ($1,500,000) (or the Dollar Equivalent in any other currency); provided that the Issuer shall be permitted to make additional payments to members of the board who hold executive positions of the Issuer in renumeration for their executive functions in accordance with clause (ii) below; or
(ii) make any payment to its Management in excess of Market Compensation. For this purpose: "Management" means full-time employees, full-time officers or members of the board of the Issuer who hold executive positions of the Issuer;
and "Market Compensation" means compensation that is within the normal range of compensation for bank executives in the Country.
(m) Waiver of Stay, Extension or Usury Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer from paying all or any portion of the principal of or interest on the Restructured Dollar Notes or the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of the Financing Agreements. The Issuer hereby expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Agent, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VII
Events of Default
Section 7.1. Acceleration after Default. Subject to Section 7.2, if any Event of Default occurs and is continuing (whether it is voluntary or involuntary, or results from operation of law or otherwise), the Agent shall, at the request, or may with the consent of, the Required Holders, by written notice to the Issuer, require the Issuer to repay the Restructured Dollar Notes or such part of the Restructured Dollar Notes as is specified in that notice. On receipt of any such notice, the Issuer shall immediately repay the Restructured Dollar Notes (or that part of the Restructured Dollar Notes specified in that notice) and pay all interest accrued on it and any other amounts then payable under this Agreement. The Issuer hereby waives any right it might have to further notice, presentment, demand or protest with respect to that demand for immediate payment.
Section 7.2. Events of Default. As long as any of the Notes remain outstanding, if any of the following events (each, an "Event of Default") shall occur and be continuing:
(a) default by the Issuer in the payment of any principal due on any Senior Dollar Note and such default continues for a period of five (5) Business Days; or
(b) default by the Issuer in the payment of any interest or any Additional Amounts due on any Senior Dollar Note and such default continues for a period of ten (10) calendar days; or
(c) the Issuer shall fail to duly perform or observe any other covenant or obligation under the Financing Agreements; provided that if such failure may be cured, then such failure shall continue for a period of thirty (30) days after the earlier of (i) the Issuer becoming aware of such failure and (ii) written notice as to such failure is received by the Issuer from the Agent or any holder of the Notes; or
(d) (i) the Issuer or any of its Significant Subsidiaries shall fail to pay individually or in the aggregate an amount greater than two million Dollars ($2,000,000) (or the Dollar Equivalent in any other currency) of any principal of, premium or interest on or any other amount payable in respect of any Debt of the Issuer or such Significant Subsidiary (as the case
may be) that is outstanding (for the purposes of this subsection, "Material Indebtedness"), when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt; (ii) any event or condition which may result in the acceleration of the maturity of any Material Indebtedness or enables (or with notice, the lapse of time or both, would enable) the holder of such Material Indebtedness to accelerate the maturity thereof occurs; or (iii) any such Material Indebtedness shall be declared to be due and payable or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity (or scheduled date of redemption) thereof; or
(e) it becomes unlawful for the Issuer to perform any of its material obligations under the Financing Agreements, any other Restructured Debt, or any of its obligations thereunder ceases to be valid, binding or enforceable; or
(f) any of the Financing Agreements for any reason ceases to be in full force and effect in accordance with its terms (except in accordance with the termination provisions thereof) or the binding effect or enforceability thereof shall be contested by the Issuer, or the Issuer shall deny that it has any further liability or obligation thereunder or in respect thereof; or
(g) (i) a court having jurisdiction enters a decree or order for (A)
relief in respect of the Issuer or any Significant Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or (B) appointment of an administrator, receiver, trustee,
or intervener for the Issuer or any Significant Subsidiary for all or
substantially all of the Property of the Issuer or any Significant Subsidiary
and, in each case, such decree or order shall remain unstayed and in effect for
a period of thirty (30) consecutive days other than the controllers ("veedores")
appointed for the Issuer by the Central Bank under Section 34 of the Financial
Entities Act pursuant to the Plan (or the intervener appointed for Galicia
Uruguay by the Uruguayan Central Bank) or (ii) the Central Bank (A) initiates a
proceeding under Article 34 of the Financial Entities Act requesting the Issuer
or any Significant Subsidiary to submit a plan under such Article (excluding the
Issuer's current situation in relation with the Plan submitted under such
Section 34 of the Financial Entities Act) or (B) orders a temporary, total or
partial suspension of the activities of the Issuer pursuant to Article 49 of the
charter of the Central Bank; or
(h) the Issuer or any Significant Subsidiary is declared in bankruptcy by a firm, non-appealable decision dictated by a court of competent jurisdiction under Argentine Law N(degree) 24,522, as amended, or any applicable bankruptcy, insolvency or other similar law or hereinafter in effect; or
(i) the Issuer or any Significant Subsidiary (i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect; provided that the institution or consummation of an APE in connection with the restructuring of the Issuer's foreign debt shall not be an Event of Default, (ii) consents to the appointment of or taking possession by an administrator, receiver, trustee, or intervener for itself or any Significant Subsidiary or for all or substantially all of the Property of the Issuer or any Significant
Subsidiary, other than the controllers ("veedores") appointed for the Issuer by the Central Bank under Section 34 of the Financial Entities Act pursuant to the Plan (or the intervener appointed in Galicia Uruguay by the Uruguayan Central Bank) or (iii) effects any general assignment for the benefit of creditors under the restructuring process contemplated under Section 35 bis of the Financial Entities Act; or
(j) any event occurs which under the laws of any relevant jurisdiction has an analogous effect to any of the events referred to in subparagraphs (g), (h) or (i) above; or
(k) (i) an attachment, execution, seizure before judgment or other legal
process shall be levied or enforced upon any part of the Property of the Issuer
or any Significant Subsidiary (A) the loss of which Property could reasonably be
expected to result in a Material Adverse Effect, or (B) the amount sought
pursuant to the underlying legal claim related to such attachment, execution,
seizure before judgment or other legal process, if required to be paid by the
Issuer could reasonably be expected to result in a Material Adverse Effect, and
(ii) such attachment, execution, seizure before judgment or other legal process
is not within one hundred and eighty (180) days (A) discharged or (B) contested
in good faith by appropriate proceedings upon stay of execution of the
enforcement thereof or upon posting a bond in connection therewith; or
(l) a moratorium is agreed or declared in respect of any Debt of the Issuer or of any Significant Subsidiary or any restriction or requirement, in each case, not in effect on the date hereof is imposed, whether by legislative enactment, decree, regulation, order or otherwise, which limits the availability or the transfer of foreign exchange by the Issuer or such Significant Subsidiary for the purpose of performing any material obligation under any agreement evidencing or documenting Debt to which the Issuer or such Significant Subsidiary is a party; or
(m) (i) any Authority having jurisdiction over the Issuer or any Significant Subsidiary of the Issuer or any of their respective Property shall condemn, nationalize, seize, compulsorily purchase or otherwise expropriate all or any substantial part of the Property of the Issuer or any Significant Subsidiary or the share capital of the Issuer or any Significant Subsidiary, or shall have assumed custody or control of such Property or other assets or of the business or operations of the Issuer or any Significant Subsidiary or of the share capital of the Issuer or any Significant Subsidiary, or shall have taken any action for the winding up or dissolution or disestablishment of the Issuer or any Significant Subsidiary or any action that would prevent the Issuer or any Significant Subsidiary or any of their respective officers from carrying on any of their respective businesses or operations or a substantial part thereof for a period of longer than thirty (30) days and the result of any such action shall materially prejudice the ability of the Issuer to perform its obligations under the Financing Agreements or, in the case of the Issuer or any Significant Subsidiary, under any other agreements evidencing or documenting Debt of the Issuer or of any Significant Subsidiary or (ii) any Authority having jurisdiction over the Issuer or any of its Property condemns, nationalizes, seizes, compulsorily purchases or expropriates five percent (5%) or more of the assets of the Issuer and its Subsidiaries considered as one enterprise; or
(n) any governmental or other consent, license, approval (including any foreign exchange approval) or authorization which is necessary under any Applicable Law for the execution, delivery or performance of any agreement, document or instrument evidencing
documenting Debt issued in connection with the restructuring of the Issuer's Debt or to make any such agreement legal, valid, enforceable or shall be withdrawn or shall cease to be in full force and effect or shall be modified in a manner unacceptable to the Required Holders; or
(o) a Change of Control shall occur, provided, however, a Change of Control shall not constitute an Event of Default if:
(i) the unsecured, non-credit enhanced Debt of the acquiror of ownership or Control has an international credit rating (Foreign Currency (Dollars)) of at least "investment grade" by two (2) of the Rating Agencies;
(ii) the unsecured, non-credit enhanced Debt of the acquiror of ownership or Control has an equal to or higher international credit rating (Foreign Currency (Dollars)) than the Issuer immediately prior to the Change of Control, as determined by two (2) of the Rating Agencies;
(iii) the Issuer has received letters from two (2) of the Rating Agencies prior to the Change of Control stating that the international credit rating (Foreign Currency (Dollars)) of the Issuer after the Change of Control will be higher than immediately prior to the Change of Control;
(iv) the acquiror of ownership or Control is either (x) organized under the laws of, and has its headquarters in, a country that is a member of the Organisation for Economic Co-operation and Development ("OECD"), Brazil or Chile or (y) Controlled by a company organized under the laws of, and has its headquarters in, a country that is a member of the OECD, Brazil or Chile; and
(v) the acquiror of ownership or Control is a financial institution; or
(p) any material representation or warranty confirmed or made by the Issuer in any Financing Agreement or in connection with the execution and delivery of any Financing Agreement (including any certificate, financial statement or other document delivered to the Agent) is untrue or incorrect in a material respect; or
(q) Grupo Galicia shall fail to duly perform or observe any covenant or obligation under the Grupo Galicia Agreement, the Purchase Agreement, the Registration Rights Agreement or the Subscription Agreement; provided that if such failure may be cured, then such failure shall continue for a period of thirty (30) days after the earlier of (i) Grupo Galicia becoming aware of such failure and (ii) written notice as to such failure is received by Grupo Galicia from the Agent; or
(r) any material representation or warranty confirmed or made by Grupo Galicia in the Grupo Galicia Agreement, the Purchase Agreement, the Registration Rights Agreement or the Subscription Agreement is untrue or incorrect in a material respect;
then, except as otherwise provided in the next succeeding paragraph in respect of the Subordinated Dollar Notes, (a) as soon as practicable after a Responsible Officer of the Agent obtains (i) written notice thereof from a Responsible Officer of a Holder or the Issuer or (ii)
actual knowledge thereof in its capacity as an Agent hereunder, the Agent shall give written notice thereof to the Long-Term Dollar Holders and Medium-Term Dollar Holders and (1) (other than with respect to an Event of Default of the type described in subsections (g) through (i) above) the Majority Long-Term Dollar Holders and the Majority Medium-Term Dollar Holders may by written notice to the Issuer and to the Agent, declare the principal amount of such Restructured Dollar Notes and the interest accrued with respect to each relevant Tranche and all other amounts (including Additional Amounts) payable to be due and payable immediately, or (2) if an Event of Default of the type described in subsections (g) through (i) above shall occur, the principal of (and Additional Amounts, if any) and any accrued interest on all outstanding Long-Term Dollar Notes and Medium-Term Dollar Notes shall become immediately due and payable without the need of any notice to the Issuer or the Agent, as the case may be; provided, however, that after any such acceleration of (x) Long-Term Dollar Notes, the Majority Long-Term Dollar Holders may rescind and annul such acceleration with respect to the Long-Term Dollar Notes if all Events of Default, other than the non-payment of accelerated principal, have been cured or waived as provided in the Financing Agreements and (y) and Medium-Term Dollar Notes, the Majority Medium-Term Dollar Holders may rescind and annul such acceleration with respect to the Medium-Term Dollar Notes if all Events of Default, other than the non-payment of accelerated principal, have been cured or waived as provided in the Financing Agreements.
For Argentine regulatory purposes as set forth in Central Bank Comunicacion "A" 2970, Holders holding Subordinated Dollar Notes shall have no right to accelerate repayment of the Subordinated Dollar Notes except under an Event of Default with respect to the Issuer described under subsection (h) (excluding Significant Subsidiaries) above (such "Event of Default" in respect of the Subordinated Dollar Notes, shall also be a "Subordinated Dollar Note Event of Acceleration") that has occurred and is continuing. In such situation, all Subordinated Dollar Notes shall, without any notice to the Issuer or any other act by any Holder holding any Subordinated Dollar Notes, become immediately due and payable. Holders holding the Subordinated Dollar Notes shall have no right to accelerate repayment of Subordinated Dollar Notes in the case of any Event of Default except in the case of an Event of Default which would constitute a Subordinated Dollar Note Event of Acceleration. Upon any such acceleration, the principal of the Subordinated Dollar Notes so affected and the interest accrued thereon and all other amounts (including, without limitation, Additional Amounts, if any) payable with respect to the Subordinated Dollar Notes so affected shall become and be immediately due and payable once all other nonsubordinated liabilities of the Issuer have been fully paid. Holders of Subordinated Dollar Notes expressly waive any general or special privilege they may have. The distribution of the liquidation proceeds shall be made pro rata among all holders of subordinated debt of the Issuer and the remaining liabilities accepted (verificados) in the bankruptcy proceeding.
The foregoing provisions shall be without prejudice to the rights of each individual Holder or holder of Notes to initiate an action against the Issuer for the payment of any principal and any interest (and Additional Amounts, if any) past due on any Note, as the case may be.
No course of dealing and no delay in exercising, or omission to exercise, any right, power or remedy accruing to all Holders and all holders of Notes upon any default under the Financing Agreements or any other agreement shall impair any such right, power or remedy or be construed
to be a waiver thereof or an acquiescence therein; nor shall the action of any Holder or holder of Notes in respect of any such default, or any acquiescence by it therein, affect or impair any right, power or remedy of all Holders and all holders of Notes in respect of any other default. The rights and remedies provided herein are cumulative and not exclusive of any remedies provided by law.
ARTICLE VIII
The Agent and the Documentation Agent
Section 8.1. Authorization and Action. Each of the Holders party hereto hereby appoints and authorizes the Agent and the Documentation Agent to take such action as agent on its behalf and to exercise such powers and discretion under this Agreement and the other Financing Agreements as are delegated to the Agent or the Documentation Agent, as the case may be, by the terms hereof and thereof, together with such powers and discretion as are reasonably incidental thereto. As to any matters not expressly provided for by the Financing Agreements (including, without limitation, enforcement or collection of the Notes), the Agent and the Documentation Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting, including without imitation as set forth in Section 8.5) upon the instructions of the Required Holders, and such instructions shall be binding upon all Holders; provided, however, that neither the Agent nor the Documentation Agent shall be required to take any action that exposes the Agent or the Documentation Agent, as the case may be, to personal liability or that is contrary to this Agreement or applicable law. The Agent shall in all cases be fully protected in acting, or refraining from acting, in accordance with written instructions signed by the Required Holders and, except as otherwise specifically provided herein, such instructions and any action or inaction pursuant thereto shall be binding on all of the Holders and each subsequent holder of any interest in Notes. Neither the Agent nor any of its directors, officers, employees or agents shall have any responsibility to the Issuer on account of the failure of or delay in performance or breach by any Holder or the Documentation Agent of any of its obligations hereunder or to any Holder on account of the failure of or delay in performance or breach by any other Holder or the Documentation Agent or the Issuer of any of their respective obligations hereunder or under any other Transaction Document or in connection herewith or therewith, except for any failure, delay or breach of any such Person constituting gross negligence or willful misconduct. The Agent agrees to give to each Holder prompt notice of each notice given to it by the Issuer pursuant to the terms of this Agreement or delivered by the Issuer to the Agent with express instructions for delivery to the Holders.
Section 8.2. Agents' Reliance, Etc. (a) Neither the Agent or the
Documentation Agent nor any of their respective directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Financing Agreements, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, each of the Agent and the Documentation Agent: (i)
may treat the payee of any Note as the holder thereof until the Agent receives
and accepts an Assignment and Acceptance entered into by the Holder that is the
payee of such Note, as assignor, and an assignee, as provided in Section 9.4;
(ii) may consult with legal counsel (including, without limitation, counsel for
the Issuer), independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (iii) makes no warranty or representation to the Issuer and shall not be responsible to the Issuer for any statements, warranties or representations (whether written or oral) made in or in connection with the Financing Agreements; (iv) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of any Financing Agreement on the part of the Issuer or to inspect the property (including, without limitation, the books and records) of the Issuer; (v) shall not be responsible to any Holder for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Financing Agreement or any other instrument or document furnished pursuant thereto; or (vi) shall incur no liability under or in respect of any Financing Agreement by acting upon any notice, consent, certificate or other instrument or writing (which may be by telegram, telecopy or telex) believed by it to be genuine and signed or sent by the proper party or parties.
(b) Each of the Agent and the Documentation Agent undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. Neither the Agent nor the Documentation Agent shall have any duties or responsibilities except those expressly set forth in this Agreement or be a trustee for or have any fiduciary obligation to any party hereto.
(c) The duties and obligations of the Agent and the Documentation Agent shall be determined solely by the express provisions of this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Agent or the Documentation Agent.
(d) In the absence of willful misconduct, bad faith or gross negligence on the part of the Agent or the Documentation Agent, as the case may be, the Agent or the Documentation Agent, as the case may be, may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Agent or the Documentation Agent, as the case may be, which conform to the requirements of this Agreement.
(e) None of the provisions of this Agreement shall require the Agent or the Documentation Agent, as the case may be, to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(f) Whenever in the administration of the provisions of this Agreement the Agent or the Documentation Agent, as the case may be, shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of willful misconduct, gross negligence or bad faith on the part of the Agent, or the Documentation Agent, as the case may be, be deemed to be conclusively proved and established by a written notice from the applicable Holders and delivered to the Agent or the Documentation Agent, as the case may be, and such written notice, in the absence of willful misconduct, gross negligence or bad faith on the part of the Agent or the Documentation Agent, as the case may be,
shall be full warrant to the Agent or the Documentation Agent, as the case may be, for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(g) Neither the Agent nor the Documentation Agent shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document other than as otherwise specified in this Agreement.
(h) The Agent and the Documentation Agent, as the case may be, may execute any of their respective powers hereunder or perform any of their respective duties hereunder either directly or by or through agents, attorneys, custodians or nominees appointed with due care, and shall not be responsible for any willful misconduct or gross negligence on the part of any agent, attorney, custodian or nominee so appointed.
(i) Any corporation into which the Agent or the Documentation Agent, as the case may be, may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Agent or the Documentation Agent, as the case may be, shall be a party, or any corporation succeeding to the business of the Agent or the Documentation Agent, as the case may be, shall be the successor of the Agent or the Documentation Agent, as the case may be, hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
(j) In no event shall the Agent or the Documentation Agent be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Agent or the Documentation Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 8.3. Agent, Documentation Agent and Affiliates. With respect to any Restructured Dollar Notes that may be issued to it, (a) each of the Agent and the Documentation Agent, as the case may be, shall have the same rights and powers under the Financing Agreements as any other Holder and may exercise the same as though it were not an Agent and (b) the term "Holder" or "Holders" shall, unless otherwise expressly indicated, include the Agent and the Documentation Agent, as the case may be, in its individual capacity. Each of the Agent and the Documentation Agent, as the case may be, and their respective Affiliates, may accept deposits from, lend money to, act as trustee under indentures of, accept investment banking engagements from and generally engage in any kind of business with, the Issuer, any of its Subsidiaries and any Person that may do business with or own securities of the Issuer or any such Subsidiary, all as if the Agent was not Agent and as if the Documentation Agent was not Documentation Agent and without any duty to account therefor to the Holders.
Section 8.4. Holder Credit Decision. (a) Each Holder acknowledges that it has, independently and without reliance upon any Agent, the Documentation Agent or any other Holder (and their respective officers, directors, employees, agents, attorneys-in-fact or affiliates) and based on the financial statements referred to in Section 4.15 and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Holder also acknowledges that it will, independently and without reliance upon any Agent, the Documentation Agent or any other Holder (and their respective officers, directors, employees, agents, attorneys-in-fact or affiliates) and based on such documents and information as it shall deem appropriate at the time, continue to make its own decisions (including credit decisions) in taking or not taking action under this Agreement.
(b) The relationship between the Agent and each of the Holders is that of an independent contractor. The use of the term "Agent" is for convenience only and is used to describe, as a form of convention, the independent contractual relationship between such Agent and each of the Holders. Nothing contained in this Agreement or the other Transaction Documents shall be construed to create a trust or other fiduciary relationship between Agent and any of the Holders.
Section 8.5. Indemnification. (a) Each Holder severally agrees to indemnify the Agent and the Documentation Agent (and their respective officers, directors, employees and agents) (to the extent not promptly reimbursed by the Issuer) from and against such Holder's ratable share (determined as provided below) of any and all liabilities, taxes (but excluding any tax imposed on or measured by the net income of the Agent pursuant to the laws of the jurisdiction in which it is organized or the jurisdiction in which the principal office of the Agent is located or any subdivision thereof), obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent or the Documentation Agent or any of their respective officers, directors, employees or agents in any way relating to or arising out of a Financing Agreement, any other Transaction Document or any action taken or omitted by the Agent or the Documentation Agent under a Financing Agreement or any other Transaction Document (collectively, the "Indemnified Costs"); provided, however, that no Holder shall be liable for any portion of such liabilities, taxes, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Agent's or the Documentation Agent's gross negligence or willful misconduct as found in a final, non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing, each Holder agrees to reimburse the Agent and the Documentation Agent promptly upon demand for its ratable share of any costs and expenses (including reasonable fees and expenses of counsel) payable by the Issuer under Section 9.3, to the extent that the Agent or the Documentation Agent, as the case may be, is not promptly reimbursed for such costs and expenses by the Issuer. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 8.5 applies whether any such investigation, litigation or proceeding is brought by any Holder or any other Person.
(b) For purposes of this Section 8.5, the Holders' respective ratable
shares of any amount shall be determined according to the aggregate principal
amount of the Restructured Dollar Notes outstanding at the time that the action
or inaction resulting in the incurrence by the Agent or the Documentation Agent,
as the case may be, of Indemnified Costs and owing to the respective Holders at
the time that the action or inaction resulting in the Agent's or the
Documentation Agent's, as the case may be, Indemnified Costs were incurred.
Without prejudice to the survival of any other agreement of any Holder
hereunder, the agreement and obligations of each Holder contained in this
Section 8.5 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Financing
Agreements, the termination of the Financing Agreements and the removal or resignation of the Agent or the Documentation Agent, as the case may be.
Section 8.6. Successor Agent. The Agent may resign at any time by giving written notice thereof to the Holders and the Issuer and may be removed at any time with or without cause by the Required Holders. Upon any such resignation or removal, the Required Holders shall have the right (and so long as no Default shall have occurred and be continuing, subject to the Issuer's consent, which consent shall not be unreasonably withheld) to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required Holders, and shall have accepted such appointment, within 30 days after the retiring Agent's giving of notice of resignation or the Required Holders' removal of the retiring Agent, then the retiring Agent may, on behalf of the Holder Parties, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States or of any State thereof and having a combined capital and surplus of at least $250,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall succeed to and become vested with all the rights, powers, discretion, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Financing Agreements. If within forty-five (45) days after written notice is given of the retiring Agent's resignation or removal under this Section 8.6 no successor Agent shall have been appointed and shall have accepted such appointment, then on such forty-fifth (45th) day (a) the retiring Agent's resignation or removal shall become effective, (b) the retiring Agent shall thereupon be discharged from its duties and obligations under the Financing Agreements and (c) the Required Holders shall thereafter perform all duties of the retiring Agent under the Financing Agreements until such time, if any, as the Required Holders appoint a successor Agent as provided above. After any retiring Agent's resignation or removal hereunder as Agent shall have become effective, the provisions of this Article VIII shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement.
Section 8.7. Documentation Agent. Notwithstanding anything to the contrary in this Agreement, after the Effective Date, the Documentation Agent shall have no further obligation under or in connection with this Agreement.
ARTICLE IX
Miscellaneous
Section 9.1. Notices. (a) All notices and other communications provided for hereunder shall be either (x) in writing (including telecopier communication) and mailed, telecopied or delivered or (y) as and to the extent set forth in Section 9.1(b) and in the proviso to this Section 9.1(a), if to the Issuer, at its address at Banco de Galicia y Buenos Aires S.A., Tte. Gral. Juan D. Peron 407, 2(0) Piso, (C1038AAI) Buenos Aires, Argentina, Attention: Carlos Lopez, Telecopy: (+54 11) 3329-6429, with a copy to White & Case LLP, 1155 Avenue of the Americas, New York, New York 10036, Attention: Priscilla Almodovar, Telecopy: (+1 212) 354-8113; if to any Holder party hereto as of the Effective Date, at its address for notices specified opposite its name on Schedule III hereto; if to any other Holder, at its address for notices specified in the Assignment and Acceptance pursuant to which it became a Holder, with a copy to Mayer, Brown, Rowe & Maw LLP, 190 S. LaSalle Street, Chicago, Illinois 60603, Attention: Douglas
Doetsch, Telecopy: (+1 312) 706-8125; if to the Agent, at its address at 60 Wall Street, New York, New York 10005, Attention: Dorothy Robinson, Telecopy: (212) 797-8614; and if to the Documentation Agent, at its address at 200 Park Avenue, 4th Floor, New York, New York 10016, Attention: Maria Justo, Telecopy: (212) 412-5660; or, as to the Issuer, the Agent or the Documentation Agent, at such other address as shall be designated by such party in a written notice to the other parties and, as to each other party, at such other address as shall be designated by such party in a written notice to the Issuer and the Agent, provided that materials required to be delivered pursuant to Section 6.2 shall be delivered to the Agent as specified in Section 9.1(b) or as otherwise specified to the Issuer by the Agent. All such notices and communications shall, when mailed or telecopied, be effective when deposited in the mails or transmitted by telecopier, respectively, except that notices and communications to the Agent pursuant to Article III or Section 9.4 shall not be effective until received by the Agent. Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of this Agreement or the Notes or of any exhibit hereto to be executed and delivered hereunder shall be effective as delivery of a manually executed counterpart thereof.
(b) So long as the Agent or any of its Affiliates is the Agent, materials required to be delivered pursuant to Section 6.2 may be delivered to the Agent in an electronic medium in a format reasonably acceptable to the Agent by e-mail at dorothy.robinson@db.com with a copy to be delivered by facsimile or mail. The Issuer agrees that the Agent may make such materials, as well as any other written information, documents, instruments and other material relating to the Issuer, any of its Subsidiaries or any other materials or matters relating to this Agreement, the Notes or any of the transactions contemplated hereby (collectively, the "Communications") available to the Holders.
(c) Each Holder agrees that notice to it (as provided in the next sentence) (a "Notice") delivering any materials referred to in (b) above by e-mail shall constitute effective delivery of such information, documents or other materials to such Holder for purposes of this Agreement; provided that if requested by any Holder the Agent shall deliver a copy of the Communications to such Holder by telecopier. Each Holder agrees (i) to notify the Agent in writing of such Holder's e-mail address to which a Notice may be sent by electronic transmission (including by electronic communication) on or before the date such Holder becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on record an effective e-mail address for such Holder) and (ii) that any Notice may be sent to such e-mail address.
Section 9.2. No Waiver; Remedies; Amendments; Etc. (a) No failure or delay
by the Agent or any Holder in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agent and
the Holders under this Agreement are cumulative and are not exclusive of any
rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Issuer therefrom shall in any
event be effective unless the same shall have been obtained in accordance with
Section 9.2(b), and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
(b) No amendment or waiver of any provision of this Agreement or the
Notes or any other Financing Agreement, nor consent to any departure by the
Issuer therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Required Holders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall
(1) waive any of the conditions specified in Section 5.1, (2) change the number
of Holders or the percentage of the aggregate unpaid principal amount of the
Restructured Dollar Notes that shall be required for the Holders or any of them
to take any action hereunder, (3) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (4) postpone any date
scheduled for any payment of principal of, or interest on, the Notes pursuant to
Sections 2.9, 2.10, 2.11, 2.12 or 3.3 or any date fixed for payment of fees or
other amounts payable hereunder, (5) limit the payment or indemnification
obligations of the Issuer under any of the Financing Agreements, (6) amend,
modify or waive any of the provisions of Section 3.10 or this Section 9.2 or the
definition of "Required Holders" or any other provision hereof specifying the
number or percentage of Holders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, or (7)
change Section 3.10 in a manner that would alter the pro rata sharing of
payments required thereby, unless, in each case in this proviso, in writing and
signed by the Agent and each Holder adversely affected thereby; provided
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Holders required above to take such
action, adversely affect the rights or duties of the Agent under this Agreement
or the other Financing Agreements. Notwithstanding any provision of this
Agreement, if at any time the Issuer or any Affiliate of the Issuer shall become
a Holder hereunder, the Issuer and such Affiliate shall not be entitled to vote
on any matter hereunder and its Restructured Dollar Notes shall be excluded for
calculation purposes of the percentage of the relevant Restructured Dollar Notes
held by Holders.
Section 9.3. Costs and Expenses; Indemnity; Damage Waiver. (a) The Issuer agrees to pay on demand (i) all reasonable costs and expenses of the Agent and the Documentation Agent (including (A) all due diligence, transportation, computer, duplication, audit, search, filing and recording fees and expenses and (B) the reasonable fees and expenses of counsel for the Agent and the Documentation Agent in connection with: (1) advising the Agent and/or the Documentation Agent as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under the Transaction Documents, (2) negotiations with the Issuer or with other creditors of the Issuer or any of its Subsidiaries arising out of any Default or any events or circumstances that could reasonably be expected to give rise to a Default, (3) presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors' rights generally and any proceeding ancillary thereto and (4) the administration by the Agent of the indebtedness provided for in this Agreement or otherwise in connection with any amendment, supplement or notification to, or waiver under, any of the Transactions Documents, or in connection with the fulfillments of its duties under the Transaction Documents; and (ii) all costs and expenses of the Agent in connection with the enforcement of the Financing Agreements, whether in any action, suit or litigation, or any bankruptcy, insolvency or other similar proceeding affecting creditors' rights generally, or whether in connection with any workout, restructuring or negotiations in respect of the Restructured Dollar Notes (including, in each case, the reasonable fees and expenses of counsel for the Agent with respect thereto).
(b) The Issuer agrees to indemnify, defend and save and hold harmless
the Agent, the Documentation Agent, each Holder, and each Related Party of any
of the foregoing Persons (each such Person being called an "Indemnitee") from
and against, and shall pay on demand, any and all claims, losses, damages,
liabilities and related expenses (including reasonable fees and expenses of any
counsel for any Indemnitee) that are incurred by or asserted against any
Indemnitee, in each case arising out of, in connection with, or by any reason of
(i) the Restructured Dollar Notes, the execution or delivery of the Transaction
Documents or any agreement or instrument contemplated thereby or any transaction
contemplated thereby or the performance by the Issuer or Grupo Galicia of their
respective obligations under the Transaction Documents or the failure of the
Issuer or Grupo Galicia to perform its obligations under any Transaction
Document or (ii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses is found in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from such Indemnitee's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.3(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Issuer, Grupo Galicia,
their respective directors, shareholders or creditors or an Indemnitee, whether
or not any Indemnitee is otherwise a party thereto and whether or not the
transactions contemplated under this Agreement are consummated. The obligations
of the Issuer under Section 9.3(a) and (b) shall survive the termination of the
Financing Agreements and the earlier resignation or removal of the Agent.
(c) To the extent permitted by Applicable Law, the Issuer agrees not to assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions or any Restructured Dollar Note.
(d) If any payment of principal of any LIBOR Note is made by the Issuer to or for the account of a Holder other than on the last day of the Interest Period for such Note, as a result of acceleration of the maturity of the Notes pursuant to Article VII or for any other reason, or if the Issuer fails to make any payment or prepayment of a LIBOR Note for which a notice of prepayment has been given or that is otherwise required to be made, whether pursuant to Sections 2.9, 2.10, 2.11, 2.12, 3.1, 3.2, 7.1 or otherwise, the Issuer shall, upon demand by such Holder (with a copy of such demand to the Agent) (which demand shall also set forth an explanation of each such costs, expenses and losses), pay to the Agent for the account of such Holder any amounts required to compensate such Holder for any additional costs, expenses or losses that it has reasonably incurred as a result of such payment or such failure to pay or prepay, as the case may be, including any premium, penalty or expense incurred to liquidate or obtain third party deposits or borrowings in order to make, maintain or fund all or any part of the Restructured Dollar Notes.
(e) If the Issuer fails to pay when due any costs, expenses or other amounts payable by it under any Financing Agreements to any Person, including, without limitation, fees and expenses of counsel and indemnities, such amount may be paid on behalf of the Issuer by any
Holder, in its sole discretion, and such Holder thereupon shall be subrogated to the rights of such Person.
(f) All amounts due under this Section shall be payable promptly, and in no event later than thirty (30) days after written demand therefor.
Section 9.4. Assignments; Participations. (a) Each Holder may assign to
one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of the Restructured Dollar Notes held by
it together with the Note or Notes held by it in connection with the
Restructured Dollar Notes subject to such assignment); provided, however, that
(i) except in the case of an assignment to a Person that, immediately prior to
such assignment, was a Holder or an assignment of all of a Holder's rights and
obligations under this Agreement, the aggregate amount of each Tranche of
Restructured Dollar Notes being assigned to such assignee pursuant to such
assignment (determined as of the effective date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than one million
Dollars ($1,000,000) (or (x) a lesser amount if such amount is such Holder's
entire amount of the Tranche being transferred or (y) such lesser amount as
shall be approved by the Issuer), (ii) the parties to each such assignment shall
execute and deliver to the Agent, for its acknowledgment and recording in the
Register, an Assignment and Acceptance, together with the Note or Notes subject
to such assignment and a processing and recordation fee of three thousand five
hundred Dollars ($3,500), (iii) to the extent any modifications are required to
the form of Assignment and Acceptance or additional documentation is required by
the Agent, the parties to each such assignment shall have agreed to reimburse
the Agent for any fees, costs and expenses (including, without limitation, the
fees and expenses of counsel) to the extent necessary or appropriate incurred by
the Agent in connection with the foregoing, and (iv) the parties to each such
assignment shall execute and deliver to the Agent such agreements and documents
(in addition to those required hereunder) as may be satisfactory to the Agent.
(b) Upon such execution, delivery, acknowledgment and recording of the relevant Assignment and Acceptance, from and after the effective date specified in such Assignment and Acceptance, unless a later date is specified therein (i) the assignee thereunder shall constitute a Holder hereunder and (ii) the Holder assignor thereunder shall, to the extent of the rights and obligations hereunder that have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights under Sections 3.6, 3.8 and 9.3 to the extent any claim thereunder relates to an event arising prior to such assignment) and be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the remaining portion of an assigning Holder's rights and obligations under this Agreement, such Holder shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Holder assignor thereunder and each assignee thereunder confirm to and agree with each other and the other parties thereto and hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Holder makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Financing Agreement or the execution, legality, validity, enforceability, genuineness, value and sufficiency of any Financing Agreement or any other instrument or document furnished pursuant thereto; (ii) such assigning Holder makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Issuer or the performance or observance by the Issuer of any of its
obligations under any Financing Agreement or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.15 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Agent, such assigning Holder or any other Holder and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee appoints and authorizes the Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under the Financing Agreements as are delegated to the Agent by the
terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto; (vi) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Holder and (vii) such assignee
makes each of the representations and warranties set forth in Section 9.5
hereof. An assignee shall not be entitled to receive any greater payment under
Section 3.6 or 3.8 than the Holder assignor would have been entitled to receive
with respect to its rights and obligations under this Agreement assigned to such
assignee, unless the assignment is made with the Issuer's prior written consent,
or in the case of a payment under Section 3.8, unless such assignment shall not
result in a greater payment by the Issuer than would have resulted had the
Holder who originally owned the relevant Note remained the owner thereof (in
which case the Issuer's prior written consent is not required).
(d) The Agent shall maintain at its address referred to in Section 9.1 a copy of each Assignment and Acceptance delivered to and acknowledged by it and a register for the recordation of the names and addresses of the Holder and principal amount of the Restructured Dollar Notes owing under each Tranche to, each Holder from time to time (the "Register"). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and the Issuer, the Agent and each Holder shall treat each Person whose name is recorded in the Register as a Holder hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Issuer or the Agent or any Holder at any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an assigning Holder and an assignee, together with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit B hereto, (i) acknowledge delivery of such Assignment and Acceptance, (ii) record the information contained therein in the Register and (iii) give prompt notice thereof to the Issuer. In the case of any assignment by a Holder, within five (5) Business Days after its receipt of such notice, the Issuer, at its own expense, shall execute and deliver to the Agent in exchange for the surrendered Note or Notes a new Note or Notes to the order of such assignee in an amount equal to the Restructured Dollar Notes assumed by it under each Tranche pursuant to such Assignment and Acceptance and, if any assigning Holder has retained any Restructured Dollar Notes hereunder, a new Note or Notes to the order of such assigning Holder in an amount equal to the Restructured Dollar Notes retained by it hereunder. Such new Note or Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Note or Notes, as applicable, or equal to the portion of interest scheduled to be paid on the last day of the
following Interest Period in the case of a Note or Note evidencing interest, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit D-1 (with applicable modifications), in the case of any Argentine Note, and Exhibit D-2 (with applicable modifications), in the case of any U.S. Note.
(f) Subject to Section 9.5, each Holder may sell participations to one
or more Persons (other than the Issuer or any of its Affiliates) (a
"Participant") in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Restructured Dollar Notes owing to it together with the Note or Notes (if any)
held by it evidencing such Restructured Dollar Notes); provided, however, that
(i) such Holder's obligations under this Agreement shall remain unchanged, (ii)
such Holder shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Holder shall remain the holder of
any such Note or Notes for all purposes of this Agreement, (iv) the Issuer, the
Agent and the other Holders shall continue to deal solely and directly with such
Holder in connection with such Holder's rights and obligations under this
Agreement and (v) no Participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Financing
Agreement, or any consent to any departure by the Issuer therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation. The Issuer agrees that each Participant shall be entitled to the
benefits of Sections 3.6, 3.8 and 9.3 to the same extent as if it were a Holder
and had acquired its interest by assignment, and to the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.9 as though
it were a Holder; provided, however, that a Participant shall not be entitled to
receive any greater payment under Section 3.6 or 3.8 than the applicable Holder
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Issuer's prior written consent. The parties to any such
participation shall execute and deliver to the Agent such agreements and
documents as it may deem satisfactory.
(g) Any Holder may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 9.4, disclose to the assignee or Participant or proposed assignee or participant any information relating to the Issuer furnished to such Holder by or on behalf of the Issuer; provided, however, that, prior to any such disclosure, the assignee or participant or proposed assignee or participant shall agree to preserve, subject to customary limitations and exceptions, the confidentiality of any Confidential Information received by it from such Holder.
(h) Notwithstanding any other provision set forth in this Agreement, any Holder may at any time create a security interest in all or any portion of its rights under this Agreement (including the Restructured Dollar Notes owing to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System.
(i) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the
Issuer may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Holder (and any attempted
assignment or transfer by the Issuer without such consent shall be null and
void) and (ii) no Holder may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section 9.4. Nothing in
this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants (to the extent provided in paragraph (f) of this
Section 9.4) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Agent and the Holders) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
Section 9.5. Holders' Representation. Each Holder (including any assignee of a Holder) represents, warrants and covenants to the Issuer that such Holder is acquiring the Restructured Dollar Notes owing to it and the Note or Notes held by it for its own account and not with a view to assignment, participation or transfer other than in a manner that will not violate United States securities laws or the securities laws of any other applicable jurisdiction.
Section 9.6. Survival. All covenants, agreements, representations and warranties made by the Issuer herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Restructured Dollar Notes, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agent or any Holder may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Note or any fee or any other amount payable under this Agreement is outstanding and unpaid. Without prejudice to the survival of any other agreement of the Issuer hereunder, the provisions of Sections 3.6, 3.8, and 9.3 of this Agreement shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby or the payment in full of principal, interest and all other amounts payable hereunder and under any of the other Financing Agreement.
Section 9.7. Counterparts; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on separate counterparts), each of which when so executed shall constitute an original, and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. From and after the Effective Date, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that the Issuer shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Holders. This Agreement and the other Financing Agreements represent the entire agreement of the Issuer, the Agent and the Holders with respect to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Agent or any Holder relative to the subject matter hereof not expressly set forth or referred to herein or in the other Financing Agreements.
Section 9.8. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity, illegality or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 9.9. Right of Setoff. Upon (a) the occurrence and during the continuance of any Event of Default and (b) the making of the request or the granting of the consent specified by Article VII to authorize the Agent to declare the Notes due and payable pursuant to the provisions of Article VII, the Agent and each Holder and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and otherwise apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other Debt at any time owing by the Agent, such Holder or such Affiliate to or for the credit or the account of the Issuer against any of and all the Obligations of the Issuer now or hereafter existing under the Financing Agreements, irrespective of whether the Agent or such Holder shall have made any demand under this Agreement or such Note or Notes and although such Obligations may be unmatured. If such Obligations are in different currencies, the Agent, Holder or Affiliate, as applicable, may convert either the Issuer's Obligations or the Agent, Holder or Affiliate's, as the case may be, Debt, at a market rate of exchange in its usual course of business for the purpose of the set-off. The Agent and each Holder agrees promptly to notify the Issuer after any such set-off and application; provided, however, that the failure to give such notice shall not affect the validity or such set-off and application. The rights of the Agent and each Holder and each of their respective Affiliates under this Section 9.9 are in addition to other rights and remedies (including other rights of set-off) that the Agent, such Holder and their respective Affiliates may have.
Section 9.10. Jurisdiction; Consent to Service of Process. (a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Agent or any Holder may otherwise have to bring any action or proceeding relating to this Agreement, the Notes or any of the other Financing Agreements in the courts of any jurisdiction. The Issuer irrevocably and unconditionally waives any right to claim a lack of jurisdiction should any Financing Agreement be enforced in the Country. The Issuer hereby irrevocably appoints CT Corporation System (the "Process Agent") with an office on the date hereof at 111 Eighth Avenue, New York, New York 10011, United States, as its agent to receive on behalf of the Issuer and its property service of copies of the summons and complaint and any other process which may be served in any such action or proceeding arising out of or relating to this Agreement or any other Financing Agreement governed by New York law. Such service may be made by mailing or delivering a copy of such process to the Issuer in care of the Process Agent at the Process Agent's above address, and the Issuer hereby irrevocably authorizes and
directs the Process Agent to accept such service on its behalf. As an
alternative method of service, the Issuer also irrevocably consents to the
service of any and all process in any such action or proceeding by sending
copies of such process by mail to the Issuer at its address specified in Section
9.1. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
(B) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, the Notes or any Financing Agreement to which it is a party in any court referred to in subparagraph (a) of this Section 9.10. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, THE OTHER FINANCING AGREEMENTS OR THE ACTIONS OF THE AGENT OR ANY HOLDER IN THE NEGOTIATION, ADMINISTRATION, OR PERFORMANCE THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.12. Judgment Currency. The Issuer's obligations hereunder to make payments in Dollars shall not be discharged or satisfied by any tender or recovery pursuant to any judgment expressed in or converted into any currency other than Dollars, except to the extent that on the Business Day following receipt of any sum adjudged to be so due in the judgment currency and the payee may in accordance with normal banking procedures purchase Dollars in the amount originally due to the payee with the judgment currency. If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in Dollars into another currency (in this Section 9.12 called "judgment currency"), the rate of exchange that shall be applied shall be that at which in accordance with normal banking procedures the Holder could purchase such Dollars in New York City with the judgment currency on the Business Day next preceding the day on which such judgment is rendered. The obligation of the Issuer in respect of any such sum due from it to any Person hereunder (in this Section 9.12 called an "Entitled Person") shall, notwithstanding the rate of exchange actually applied in rendering such judgment, be discharged only to the extent that on the Business Day following receipt by such Entitled Person of any sum adjudged to be due hereunder in the judgment currency such Entitled Person may in accordance with normal banking procedures purchase and transfer Dollars to New York City with the amount of the judgment so adjudged to be due; and the Issuer hereby, as a
separate obligation and notwithstanding any such judgment, agrees to indemnify such Entitled Person against, and to pay such Entitled Person on demand, in Dollars, the amount (if any) by which the sum originally due to such Entitled Person in Dollars hereunder exceeds the amount of the Dollars so purchased and transferred and, if the amount of Dollars so purchased and transferred exceeds the sum originally due to such Entitled Person in Dollars hereunder, such Entitled Person shall remit to the Issuer such excess; provided, that such Entitled Person shall have no obligation to remit such excess so long as the Issuer shall have failed to pay such Entitled Person any Obligations due and payable under this Agreement and the Notes, in which case such excess may be applied to such Obligations of the Issuer hereunder in accordance with the terms of this Agreement. The Issuer waives the right to invoke any defense of payment impossibility (including any defense under Section 1198 of the Argentine Civil Code).
Section 9.13. Waiver of Sovereign Immunity. The Issuer, in respect of itself, its Subsidiaries, their respective process agents, and their properties and revenues, hereby irrevocably agrees that, to the extent that the Issuer, its Subsidiaries or any of their respective properties and revenues has or may hereafter acquire any right of immunity of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise, and whether characterized as sovereign immunity or otherwise), whether in the United States, the Country or elsewhere, to enforce or collect upon the Notes, this Agreement, the other Financing Agreements, or any other liability or obligation of the Issuer of any of its Subsidiaries related to or arising from the transactions contemplated by this Agreement or the other Financing Agreements, including immunity from service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, the Issuer, for itself and on behalf of its Subsidiaries, hereby expressly and irrevocably waives any such immunity in respect of its obligations under this Agreement, the Notes, and the other Financing Agreements, and, agrees, without limiting the generality of the foregoing, (i) that the waivers set forth in this Section 9.13 shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act, and (ii) not to assert any such right or claim in any such proceeding, whether in the United States, the Country or elsewhere.
Section 9.14. English Language. This Agreement (other than the form of Argentine Notes) has been negotiated and executed in the English language. The English language version of this Agreement (other than the form of Argentine Notes) and each other Financing Agreement (other than the Argentine Notes) shall control and be conclusive as to the meaning of any terms and provisions hereof or thereof except in connection with the enforcement thereof in the Country as may be required by Argentine law. All agreements, documents, certificates, reports or notices to be delivered or communications to be given or made by any party hereto pursuant to the terms of any Financing Agreement shall be in the English language or, if originally written in another language, shall be accompanied by an accurate English translation upon which the other parties hereto shall have the right to rely for all purposes of this Agreement and the other Financing Agreements.
Section 9.15. Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
Section 9.16. Confidentiality. Neither the Agent nor any Holder shall disclose any Confidential Information to any Person without the consent of the Issuer, other than (a) to the Agent's or such Holder's Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature thereof and instructed to keep such Confidential Information confidential) and to actual or prospective assignees and participants, and then only on a confidential basis, (b) as required by any applicable law, rule or regulation or judicial process, (c) as requested or required by any state, Federal or foreign authority or examiner regulating such Holder and (d) to any rating agency when required by it, provided that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Confidential Information relating to the Issuer received by it from such Holder. Notwithstanding anything herein to the contrary, the Agent, each Holders and their respective Related Parties, may disclose to any and all persons, without limitation of any kind, the U.S. tax treatment and tax structure of the transactions contemplated hereunder and under the other Transaction Documents, and all materials of any kind (including opinions or other tax analysis) that are provided to the Agent or any Holder, as the case may be, relating to such U.S. tax treatment and tax structure.
Section 9.17. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
Section 9.18. Actions Consistent with this Agreement. Notwithstanding anything to the contrary set forth in the Notes, each Holder hereby agrees not to take any action (enforcement or otherwise) pursuant to the Notes that would be inconsistent with the terms of this Agreement.
[signature pages follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
BANCO DE GALICIA Y BUENOS AIRES S.A.,
as Issuer
By: /s/ Hector E. Arzeno ------------------------------ Name: Hector E. Arzeno Title: Executive Vice President |
Note Purchase Agreement
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Agent
By: /s/ Wanda Camacho ----------------------------------- Name: Wanda Camacho Title: Vice President By: /s/ Cynthia J. Powell ----------------------------------- Name: Cynthia J. Powell Title: Assistant Vice President |
Note Purchase Agreement
BARCLAYS BANK PLC, as Documentation Agent
By: /s/ Maria L. Justo ------------------------------------- Name: Maria L. Justo Title: Director |
Note Purchase Agreement
HOLDERS:
NATEXIS BANQUES POPULAIRES
By: /s/ Marc Colas de la Noue ----------------------------------- Name: Marc Colas de la Noue Title: FVP Head of Mercosur and Venezuela By: /s/ B. Gautier ----------------------------------- Name: B. Gautier Title: Head of Mexico, Central America and Caribbean |
S-1 Note Purchase Agreement
NEDERLANDSE FINANCIERINGS-
MAATSCHAPPIJ VOOR
ONTWIKKELINGSLANDEN N.V.
By: /s/ Janos Bonta ---------------------------------------- Name: Janos Bonta Title: Head Regional Department Latin America & the Caribbean By: /s/ H. Cornelissen ---------------------------------------- Name: H. Cornelissen Title: Manager IMR |
Note Purchase Agreement
RZB Finance LLC
By: /s/ Frank Yautz ------------------------------------ Name: Frank Yautz Title: First Vice President By: /s/ Juan Csillagi ------------------------------------ Name: Juan Csillagi Title: Group Vice President |
Note Purchase Agreement
SCHEDULE I
EXISTING BONDS AND EXISTING BANK DEBT
A. EXISTING BONDS
APPROXIMATE AGGREGATE AMOUNT OUTSTANDING AS INSTRUMENT DESCRIPTION OF APRIL 27, 2004 ---------- ----------- ---------------------------- (IN MILLIONS OF U.S.DOLLARS) STEP UP FLOATING RATE Floating Rate Notes issued under the Indenture, dated as of 136.92 NOTES DUE 2002 (FRN) August 5, 1997, among the Issuer, UBS AG (formerly SBC Warburg Inc.), as Lead Manager, Citicorp Trust Company Limited, London, as Trustee and Citibank N.A., London, as Paying and Issue Agent. 9% NOTES DUE 2003 Notes issued under the Indenture, dated as of November 8, 192.24 (YANKEE BOND) 1993, among the Issuer, The Bank of New York, as Trustee, co-registrar, principal Paying Agent and Registrar. |
B. EXISTING BANK DEBT
APPROXIMATE AGGREGATE AMOUNT OUTSTANDING AS TYPE OF INDEBTEDNESS DESCRIPTION OF APRIL 27, 2004 -------------------- ----------- ---------------------------- (IN MILLIONS OF U.S.DOLLARS) INTERNATIONAL FINANCE Investment Agreement, dated as of July 19, 1996, the Credit A LOAN 15.00 CORPORATION ("IFC") Line Agreement dated as of January 25, 1999, and the A-1 30.00 Amended and Restated Investment Agreement, dated as of July A-2 20.00 2, 1999, between the Issuer and the IFC. Investment Agreement, dated as of July 19, 1996, and the B LOAN 245.00 Amended and Restated Investment Agreement, dated as of July 2, 1999, among the Issuer, International Finance Corporation and Dresdner Bank AG, New York Branch, as Arrangers, Dresdner Bank AG, New York Branch, as Issuing Bank, the Lenders party thereto and Bankers Trust Company as Depositary and Administrative Agent. INTER-AMERICAN INVESTMENT Financial Intermediary Loan Agreement, dated as of March 5, A LOAN 3.64 CORPORATION ("IIC") 1993, and the Amended and Restated Financial Intermediary EXT. B LOAN 3.89 Loan Agreements, dated as of April 5, 1994, March 15, 1996 2ND EXT.B LOAN 25.33 and June 23, 1997, among the Issuer and the Inter-American Investment Corporation. Financial Intermediary Loan Agreement, dated December 21, A LOAN 8.82 1998, among the Issuer and the IIC. B LOAN 27.82 |
Schedule 1-1
NETHERLANDS DEVELOPMENT Loan Agreement, dated as of September 12, 1995, among the 2.00 FINANCE COMPANY ("FMO") Issuer and the FMO (Netherlands Development Finance Company). Loan Agreement, dated as of February 29, 1996, among the 4.17 Issuer and the FMO (Netherlands Development Finance Company). Loan Agreement, dated as of September 11, 1998, among the 13.13 Issuer and the FMO (Netherlands Development Finance Company). COMMODITY CREDIT CORPORATION Loans under the Export Credit Guarantee Program GSM-102 of 102.18 ("CCC") the CCC, United States Department of Agriculture, among the Issuer and certain U.S. Banks. USCP Loans under the Reimbursement and Credit Agreement, dated 82.00 as of September 22, 2000, as amended, among the Issuer, HSBC Bank USA, as Issuing Bank, the lenders party thereto, Bank of America, N.A., as Administrative Agent, and Bank of America Securities LLC and HSBC Securities (USA) Inc., as joint Arrangers. Loans under the Reimbursement and Credit Agreement, dated 250.00 as of February 23, 2001, among the Issuer, Bayerische Hypo-und Vereinsbank AG, acting through its New York Branch, as Issuing Bank, the lenders party thereto, The Chase Manhattan Bank N.A., as Administrative Agent, and J.P. Morgan, a division of Chase Securities Inc., as Arranger. STEP UP FLOATING RATE NOTES Floating Rate Notes issued under the Note Purchase 44.44 DUE 2005 Agreement, dated as of December 18, 2000, among the Issuer, Banco Santander Central Hispano S.A., acting through its New York Branch, as Administrative and PRI Agent, and the Initial Purchasers listed therein. Floating Rate Notes issued under the Note Purchase 10.67 Agreement, dated as of June 7, 2001, among the Issuer, Banco Santander Central Hispano S.A., acting through its New York Branch, as Administrative and PRI Agent, and the Initial Purchasers listed therein. FINANCIAL LOAN Loan requested under SWIFT message, dated as of May 9, 0.80 2001, between the Issuer and Eagle National Bank of Miami, Miami, Florida. Loan requested under SWIFT message, dated as of June 5, 2.00 2001, between the Issuer and International Finance Bank, Miami, Florida. |
S-2 Note Purchase Agreement
NDF Several Non Delivery Forward between the Issuer and 12.27 American Express Bank, New York Several Non Delivery Forward between the Issuer and J.P. 20.78 Morgan Chase, New York SWAP SWAP REQUESTED UNDER SWIFT MESSAGE, BETWEEN THE ISSUER AND 1.26 BANK OF NOVA SCOTIA. DOCUMENTARY LETTER OF CREDIT Documentary Letter of Credit issued by the Issuer on May 3, 20.00 2001, for the account of Enron Trading Limited, George Town, Grand Cayman Islands, British West Indies, in favor of Enron Metals and Commodity Limited, London, UK. and confirmed by Banco Bilbao Vizcaya Argentaria, New York, USA. Documentary Letter of Credit issued by the Issuer on June 10.00 5, 2001, for the account of Enron Trading Limited, George Town, Grand Cayman Islands, British West Indies, in favor of Enron Metals and Commodity Limited, London, UK. and confirmed by Banco Bilbao Vizcaya Argentaria, New York, USA. Documentary Letter of Credit issued by the Issuer on July 2.00 2, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela, in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by Fortis Bank (Nederland) N.V. Rotterdam, The Netherlands. Documentary Letter of Credit issued by the Issuer on July 2.30 3, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by Bank One International Corporation, Dallas, TX, USA. Documentary Letter of Credit issued by the Issuer on July 2.20 3, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by KBC Bank N.V., Antwerp, Belgium. Documentary Letter of Credit issued by the Issuer on July 5.50 3, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by Sumitomo Bank, Ltd., New York USA. |
S-3 Note Purchase Agreement
Documentary Letter of Credit issued by the Issuer on July 2.00 5, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by Zurcher Kantonalbank, Zurich, Switzerland. Documentary Letter of Credit issued by the Issuer on July 1.00 5, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by Zurcher Kantonalbank, Zurich, Switzerland. Documentary Letter of Credit issued by the Issuer on July 5.00 5, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela in favor of Cargill Agricola S.A., Turks and Caicos Islands, British West Indies and confirmed by Banco Bilbao Vizcaya Argentaria, Milan, Italy. Documentary Letter of Credit issued by the Issuer on July 5.00 13, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela, in favor of Cargill International S.A., Geneva, Switzerland and confirmed by US Bank, Minneapolis, MN, USA. Documentary Letter of Credit issued by the Issuer on July 10.00 20, 2001, for the account of Cargill de Venezuela C.A., Caracas, Venezuela, in favor of Cargill International S.A., Geneva, Switzerland and confirmed by Bank of Nova Scotia, Toronto, Canada. |
S-4 Note Purchase Agreement
SCHEDULE II
ESCASANY, AYERZA AND BRAUN FAMILY MEMBERS
SHAREHOLDER DATE OF BIRTH Eduardo Jose Escasany June 30, 1950 Abel Ayerza May 27, 1939 Federico Braun February 4, 1948 Maria Ofelia Escasany September 14, 1948 Marta Braun January 30, 1937 Santiago Braun September 16, 1942 Monica Estela Zartmann December 12, 1943 Maria Braun September 17, 1946 Miguel Braun November 30, 1973 Susana Braun de Santillan September 22, 1944 Ines Braun Ledesma December 5, 1976 Pablo Braun Ledesma January 8, 1976 Oscar Braun Malenchini December 28, 1961 Sonia Braun Malenchini November 4, 1963 Mercedes Guerrero de Authier August 31, 1961 Isabel Guerrero de Romero December 19, 1962 Francisca Guerrero de Aduriz April 29, 1965 Adela Maria Ayerza de Gutierrez October 19, 1936 Josefina Maria Ayerza June 24, 1933 Maria Teresa Ayerza February 2, 1935 Silvestre Vila Moret April 26, 1971 Fundacion Banco de Galicia y Buenos Aires S.A. N/A |
Schedule II-1
SCHEDULE III
HOLDER ADDRESSES
HOLDER PRINCIPAL ADDRESS NOTICE INFORMATION ------ ----------------- ------------------ Natexis Banques Populaires 45 rue Saint Dominique 45 rue Saint Dominique 75007 Paris 75007 Paris France France Attn: Christian Mignot / Marc Colas de la Noue Phone: 31 1 58 19 35 38 / 31 1 58 19 37 82 Fax: 33 1 58 19 29 70 E-mail: christian.mignot@nxbp.fr / marccolasdelanoue@nxbp.fr Nederlandse Anna van Saksenlaan 71 P.O. Box 93060 Financierings-Maatschappij voor 2593 HW The Hague 2509 AB The Hague Ontwikkelingslanden N.V. The Netherlands The Netherlands Attn: Jan A. Portegies, Senior Investment Officer Latin America and the Caribbean Phone: 31 70 314 96 87 Fax: 31 70 314 97 57 RZB Finance LLC 1133 Avenue of the Americas 1133 Avenue of the Americas 16th Floor 16th Floor New York, New York 10036 New York, New York 10036 USA USA Attn: Joyce Marie Gapay, Account Officer Teri Weiner and Sharif Kamel, Administive Contacts Phone: Gapay - 212 845-8355 Weiner - 212 845-8356 Kamel - 212 845-8341 Fax: 212 944-2093 or 212 391-9670 E-mail: jgapay@rzbfinance.com tweiner@rzbfinance.com skamel@rzbfinance.com |
Schedule III-1
SCHEDULE IV
ORIGINAL DOLLAR LOAN AGREEMENTS
AGGREGATE AMOUNT OUTSTANDING AS OF TYPE OF INDEBTEDNESS DESCRIPTION APRIL 27, 2004 -------------------- ----------- ----------------------------- (IN MILLIONS OF U.S. DOLLARS) NETHERLANDS DEVELOPMENT Loan Agreement, dated as of September 12, 1995, among the 2.00 FINANCE COMPANY ("FMO") Issuer and the FMO (Netherlands Development Finance Company). Loan Agreement, dated as of February 29, 1996, among the 4.17 Issuer and the FMO (Netherlands Development Finance Company). Loan Agreement, dated as of September 11, 1998, among the 13.13 Issuer and the FMO (Netherlands Development Finance Company). USCP Loans under the Reimbursement and Credit Agreement, dated 250.00 as of February 23, 2001, among the Issuer, Bayerische Hypo-und Vereinsbank AG, acting through its New York Branch, as Issuing Bank, the lenders party thereto, The Chase Manhattan Bank N.A., as Administrative Agent, and J.P. Morgan, a division of Chase Securities Inc., as Arranger. |
Schedule IV-1
SCHEDULE V
REAL ESTATE
PART A.
STREET ADDRESS
Tte. Gral. Juan D. Peron 402/434
Buenos Aires, Argentina
TOTAL
PART B.
STREET ADDRESS
Tte. Gral. Juan D. Peron 407
Buenos Aires, Argentina
Florida 349/359/361/365 Second Floor to Ninth Floor Buenos Aires, Argentina
Florida 129 Third Floor
Buenos Aires, Argentina
Tte. Gral. Juan D. Peron 452/456/460
Buenos Aires, Argentina
Av. de Mayo 580
Buenos Aires, Argentina
San Martin 201 Third Floor
Buenos Aires, Argentina
H. Yrigoyen 589/593/599
Buenos Aires, Argentina
Schedule V-1
SCHEDULE 2.1
PRORATION AND REALLOCATION PROCEDURE
Reference is hereby made to that certain (i) Pricing Supplement, dated December 23, 2003, of Banco de Galicia y Buenos Aires S.A. (the "Issuer") regarding the offers and solicitation of authorizations to execute an Acuerdo Preventivo Extrajudicial described therein, as supplemented by the Supplement to the Pricing Supplement, dated March 18, 2004 and the Second Supplement to the Pricing Supplement, dated April 6, 2004 (as supplemented, the "Pricing Supplement"), (ii) Summary of Terms and Conditions of Proposed Restructuring Transactions, dated March 9, 2004 (the "Term Sheet"), related to the bank debt restructuring of the Issuer and (iii) the Election Notice provided pursuant to the terms of this Agreement. Capitalized terms used in this Schedule but not otherwise defined herein or in this Agreement shall have the respective meanings assigned thereto in the Pricing Supplement or, if not so defined therein, the Term Sheet.
Each of the elections made by Holders participating in the Simultaneous Exchange and/or the Alternative Simultaneous Exchange, shall be prorated on the terms and conditions set forth in the Section entitled "The Offers -- Proration" in the Pricing Supplement, provided that for purposes of each of the Holders who participate in the Alternative Simultaneous Exchange, it shall be understood that each such Holder shall have the option to elect each of the alternative options provided for in the Election Notice (notwithstanding anything to the contrary set forth in the Pricing Supplement) and the prorationing of each of the Alternative Simultaneous Exchange options available to Holders shall be made on a pro rata basis, after taking into account all Bondholders and Bank Creditors that participate in such relevant option.
Schedule 2.1-1
SCHEDULE 4.17
SURVIVING DEBT
(IN MILLIONS OF U.S. DOLLARS)
Outstanding Principal Final First Second Third Fourth Creditor Amount Maturity Installment Installment Installment Installment -------- ------ -------- ----------- ----------- ----------- ----------- 7.875% Notes Due 2007 72.6 3/08/2007 3/08/2005 3/08/2006 3/08/2007 -- (NY Restructured Debt) 7th Series Floating Rate Notes Due 43.2 3/08/2007 3/08/2005 3/08/2006 3/08/2007 -- 2007 (NY Restructured Debt) Loan from Seguro de Depositos Sociedad 64.5 3/05/2007 15/06/2004 15/12/2004 15/06/2005 15/12/2005 Anonima (SEDESA) Loan from Banco de la Nacion 23.9 3/05/2005 3/15/2004 3/11/2004 3/05/2005 -- Argentina in its capacity of trustee of the Fondo Fiduciario de Asistencia a Entidades Financieras y de Seguro. Loan from Banco de la Nacion 11.5 7/12/2008 7/12/2004 7/12/2005 7/12/2006 7/12/2007 Argentina in its capacity of trustee of the Fondo Fiduciario de Asistencia a Entidades Financieras y de Seguro. Discount Bank (1) 0.5 20/12/2005 20/12/2005 -- -- -- Deutsche Bank AG (2) 8.0 3/02/2007 3/02/2005 3/02/2006 3/02/2007 -- Barclays Bank PLC (3) 1.7 3/02/2007 3/02/2005 3/02/2006 3/02/2007 -- BCRA - Hedge Bond 862.1 (*) (*) (*) (*) (*) (Principal + Adjustments) BCRA - Rediscounts to cover lack of 1986.3 (*) (*) (*) (*) (*) liquidity |
Fifth Sixth Seventh Creditor Installment Installment Installment -------- ----------- ----------- ----------- 7.875% Notes Due 2007 -- -- -- (NY Restructured Debt) 7th Series Floating Rate Notes Due -- -- -- 2007 (NY Restructured Debt) Loan from Seguro de Depositos Sociedad 15/06/2006 15/12/2006 03/05/2007 Anonima (SEDESA) Loan from Banco de la Nacion -- -- -- Argentina in its capacity of trustee of the Fondo Fiduciario de Asistencia a Entidades Financieras y de Seguro. Loan from Banco de la Nacion 7/12/2008 -- -- Argentina in its capacity of trustee of the Fondo Fiduciario de Asistencia a Entidades Financieras y de Seguro. Discount Bank (1) -- -- -- Deutsche Bank AG (2) -- -- -- Barclays Bank PLC (3) -- -- -- BCRA - Hedge Bond (*) (*) (*) (Principal + Adjustments) BCRA - Rediscounts to cover lack of (*) (*) (*) liquidity |
Schedule 4.17-1
Banco Santander Central Hispano S.A.(4) 10.3 (5) (5) (5) (5) (5) KBC Bank NV (4) 4.9 (5) (5) (5) (5) (5) Bank One, N.A. (4) 3.0 (5) (5) (5) (5) (5) Banco Espanol de Credito S.A. (4) 2.0 (5) (5) (5) (5) (5) Bayerische Hypo-und Vereinsbank A.G.(4) 5.1 (5) (5) (5) (5) (5) |
Banco Santander Central Hispano S.A.(4) (5) (5) (5) KBC Bank NV (4) (5) (5) (5) Bank One, N.A. (4) (5) (5) (5) Banco Espanol de Credito S.A. (4) (5) (5) (5) Bayerische Hypo-und Vereinsbank A.G.(4) (5) (5) (5) |
* See Letter from Banco Central de la Republica Argentina to Banco de Galicia y Buenos Aires S.A. (the "Bank"), dated February 3, 2004, for the final maturity and amortization schedule.
(1) Time Deposit placed with the Bank by Discount Bank. The Time Deposit was converted, at the option of Discount Bank, to a bullet line of credit with a final maturity of not less than four years rather than the alternative of a pesification at a rate of US$1 to Ps.1.40.
(2) Debt assumed by the Bank as part of the restructuring of the Bank New York branch, pursuant to an agreement dated May 31, 2002, among the Bank, the Bank's New York branch and Banco Latinoamericano de Exportaciones, S.A., which was afterwards assigned to Deutsche Bank AG.
(3) Debt assumed by the Bank as part of the restructuring of the Bank's New York branch, pursuant to an agreement dated May 31, 2002, among the Bank, the Bank's New York branch and Barclays Bank PLC.
(4) The original debt is as of the date hereof outstanding and will be restructured upon settlement of the Restructuring (as described in footnote (5) below).
(5) The outstanding principal amount will be paid in twelve monthly equal installments beginning one month after the settlement date of the Restructuring. Accrued and unpaid interest up to and including April 30, 2002, pursuant to the original loan document, will be paid by the Bank on the settlement date of the Restructuring. Interest accruing from and including May 1, 2002 to and including December 31, 2003, shall be capitalized and added to the principal balance on the settlement date of the Restructuring. Interest accruing from and including January 1, 2004 to and including the settlement date of the restructuring accrues as provided for in the restructuring agreement and is payable in arrears by the Bank one month after the settlement of the Restructuring. Interest accruing after the settlement date of the Restructuring shall accrue at a rate as provided for in the restructuring agreement.
Schedule 4.17-2
SCHEDULE 4.18
EXISTING LIENS
MARCH 31, 2004 AR $ THOUSANDS US $ THOUSANDS* DEPOSITS GRANTED AS COLLATERAL (1) 44,058 15,432 COLLATERAL SPECIAL ACCOUNTS (2) 68,642 24,043 DEPOSITS IN THE ARGENTINE CENTRAL BANK, FROZEN UNDER ARGENTINE CENTRAL BANK REGULATIONS 1,614 565 SECURED LOANS GRANTED AS COLLATERAL OF FFAEFYS ASSISTANCE 188,994 66,198 SECURITIES GRANTED AS COLLATERAL FOR BCRA ASSISTANCE 6,847,162 2,398,306 P.G.T.F. 3% VTO.09/05/05 (cje.BT02) 2 1 BONOS DEL GOB. NAC. EN $ 2% VTO 07 (BODEN) 66 23 P.G.T.F. 3% VTO.21/07/06 (cje.BT03) 269 94 P.G.T.F. 4% VTO.15/04/10 (cje.PRO6) 2,081 729 P.G.T.F. 4% VTO.21/05/08 (cje.TY05F) 863 302 P.G.T.F. 4% VTO.15/04/10 (cje.PRO10) 442 155 P.G.T.F. 4% VTO.15/05/09 (cje.TY06F) 874 306 P.G.T.F. 4% VTO.28/12/13 (cje.PRO4) 5,820 2,039 P.G.T.F. 4% VTO.19/06/09 (cje.VEJ1DP) 1,555,915 544,979 P.G.T.F. 4% VTO.19/12/11 (cje.GD08D) 1,928,856 675,606 P.G.T.F. 4% VTO.01/01/13 (cje.PRE6) 20 7 P.G.T.F. 5% VTO.21/02/12 (cje.GF12D) 692,353 242,505 P.G.T.F. 5% VTO.07/04/12 (cje.GLO09) 1,056 370 B.G. 2% VTO 04/02/18(cje.PR.PROV.$) 160,604 56,254 B.G. 2% VTO 04/02/18(cje.PR.PROV.U$S) 2,497,941 874,936 |
Schedule 4.18-1
NUMBER OF SHARES SHARES GRANTED AS COLLATERAL IN FAVOR OF THE INTERNATIONAL WITH TRANSFER TOTAL FINANCE CORPORATION, THE INTER-AMERICAN BANK AND A SYNDICATE AR $ THOUSANDS US $ THOUSANDS* RESTRICTIONS NUMBER OF SHARES Correo Argentino 27,460 9,618 12,462,021 12,462,021 SHARES OF EQUITY INVESTMENTS 51,554 18,055 Aguas Argentinas (3) 6,673 2,337 3,759,766 13,166,401 Aguas Provinciales de Santa Fe (3) 5,260 1,842 3,662,500 7,500,000 Inversora Diamante (4) 3,961 1,387 1,606,117 5,248,750 Inversora Nihuiles (4) 2,950 1,033 1,184,093 6,321,047 Electrigal (4) 2,782 974 1,222,407 2,396,875 Aguas Cordobesas (3) 2,468 864 900,000 3,250,000 CONTROLLED COMPANIES' RESTRICTED ASSETS Galicia Valores S.A. - Shares of Mercado de Valores de Bs.As. S.A. used to secure insurance covering its transactions. 4,496 1,575 Tarjetas Cuyanas - Time deposit to secure a collection agreement signed with the Revenue Board of the Province of Mendoza. 542 190 Banco Galicia (Cayman) Limited - an attachment was levied on the entity's receivables from Banco Galicia Uruguay, which should have been transferred to the Entity in payment of the second installment of a credit. 2,895 1,014 |
(*) At an exchange rate of Ps.2.855 per US$1.00.
(1) Banco de Galicia y Buenos Aires S.A. (the "Bank") has deposited US$15,432 in escrow as a guarantee for obligations toward third parties (VISA, Banelco, Master Card) and for an appraisal for the sale of portfolio.
(2) The Bank has opened accounts with the Argentine Central Bank the funds of which are used as collateral for transactions involving electronic clearing houses, checks for settling debts and other similar transactions which, as of March 31, 2004 amounted to US$24,043.
(3) Transfers of shares are subject to prior approval of national or provisional authorities under the terms of concession contracts.
(4) Transfers of shares are subject to prior internal company approval.
Schedule 4.18-2
SCHEDULE 5.1(b)(ii)
EFFECTIVE DATE INTEREST AMOUNTS
ACCRUED AND UNPAID INTEREST THROUGH AND INCLUDING APRIL ORIGINAL DOLLAR LOANS 30, 2002 --------------------- ------------------- (in U.S. Dollars) NEDERLANDSE Loan Agreement, dated as of September 12, 1995, among the Issuer 13,416.67 FINANCIERINGS-MAATSCHAPPIJ and the FMO (Netherlands Development Finance Company). VOOR ONTWIKKELINGSLANDEN N.V. (A/K/A NETHERLANDS DEVELOPMENT FINANCE COMPANY) ("FMO") Loan Agreement, dated as of February 29, 1996, among the Issuer 96,118.61 and the FMO (Netherlands Development Finance Company). Loan Agreement, dated as of September 11, 1998,among the Issuer 119,720.05 and the FMO (Netherlands Development Finance Company). NATEXIS BANQUES POPULAIRES Loans under the Reimbursement and Credit Agreement, dated as of 42,520.83 February 23, 2001, among the Issuer, Bayerische Hypo-und Vereinsbank AG, acting through its New York Branch, as Issuing Bank, the lenders party thereto, The Chase Manhattan Bank N.A., as Administrative Agent, and J.P. Morgan, a division of Chase Securities Inc., as Arranger. RZB FINANCE LLC Loans under the Reimbursement and Credit Agreement, dated as of 42,520.83 February 23, 2001, among the Issuer, Bayerische Hypo-und Vereinsbank AG, acting through its New York Branch, as Issuing Bank, the lenders party thereto, The Chase Manhattan Bank N.A., as Administrative Agent, and J.P. Morgan, a division of Chase Securities Inc., as Arranger. |
Schedule 5.1(b)(ii)-1
EXHIBIT A
FORM OF APE
(SPANISH VERSION)
En la ciudad de Buenos Aires, a los dias del mes de de 200_, se celebra el presente Acuerdo Preventivo Extrajudicial (el "APE") para la reestructuracion de deuda, entre:
1. Banco de Galicia y Buenos Aires S.A., con domicilio legal en Tte. Gral Peron 407, 2do piso, Ciudad de Buenos Aires, Republica Argentina, representado por el Sr. [__], de acuerdo con la documentacion que se adjunta al presente en Anexo I (el "Banco"); y
2. (a) Citibank, N.A., con domicilio legal en 5 Carmelite Street, London, England, representado por el Sr. [__] en su caracter de representante, de acuerdo con la documentacion que se adjunta al presente en Anexo I (el "Representante"), de los titulares de Obligaciones Negociables al 9% con vencimiento en 2003 y las Obligaciones Negociables a Tasa Variable Creciente con vencimiento en 2002 emitidas por el Banco (en conjunto, las "Instrumentos de deuda bancaria") (en conjunto, los "Obligacionistas Participantes"), en cada caso, que han ofrecido canjear sus Obligaciones Negociables en virtud de la Oferta de Canje de Obligaciones Negociables (definida mas abajo), han autorizado la celebracion del presente APE por parte del Representante en su nombre, y han otorgado al Representante el correspondiente Poder al efecto (definido mas abajo);
(b) los bancos y organismos de credito multilaterales que adhieran al APE enviando al Banco un ejemplar firmado del presente, a mas tardar en la Fecha de Presentacion del APE (definida mas abajo) (los "Bancos Participantes");
(c) los acreedores por financiaciones de comercio exterior que adhieran al APE enviando al Banco un ejemplar firmado del presente, a mas tardar en la Fecha de Presentacion del APE (los "Acreedores de Comercio Exterior Participantes"); y
(d) los acreedores de la Deuda Clase "A" (definida mas abajo) que adhieran al APE enviando al Banco un ejemplar firmado del presente, a mas tardar en la Fecha de Presentacion del APE (los "Acredores Clase "A" Participantes" y junto con los Obligacionistas Participantes, los Bancos Participantes, y los Acreedores de Comercio Exterior Participantes, los "Acreedores Participantes" y, conjuntamente con el Banco, las "Partes").
CONSIDERANDOS
(i) POR CUANTO, a la fecha de celebracion del presente APE (la "Fecha de Celebracion"), el Banco declara que mantiene (a) con todos los titulares de Instrumentos de deuda bancaria (los "Obligacionistas"), la deuda descripta en Anexo II al presente (la "Deuda con los Obligacionistas Existentes"); (b) con todos los bancos y organismos multilaterales de credito que son acreedores (los "Bancos"), la deuda bancaria quirografaria que se detalla en Anexo III al presente (la "Deuda Bancaria Existente"); (c) con los acreedores de comercio exterior (los "Acreedores de Comercio Exterior") la deuda existente por financiacion de operaciones de comercio exterior que se describe en Anexo IV al presente (la "Deuda Existente de Comercio Exterior"); y (d) con los acreedores Clase "A" (definidos mas abajo) (los "Acreedores Clase "A") la deuda existente que se detalla en Anexo V al presente (la "Deuda Existente Clase "A", y junto con la Deuda con los Obligacionistas Existentes, la Deuda Bancaria Existente, y la Deuda Existente de Comercio Exterior, la "Deuda Existente a Reestructurar"). A la Fecha de Celebracion, el Banco declara que la Deuda Existente a Reestructurar alcanza la suma de capital total de US$ [__] millones.
(ii) POR CUANTO, a partir del mes de diciembre de 2001, el Banco experimento las consecuencias financieras adversas generadas por, entre otros factores, el dictado de la Ley No. 25.561 de Emergencia Publica y Reforma del Regimen Cambiario y los subsiguientes decretos y regulaciones que dieron lugar a la devaluacion del peso argentino (el "Peso") frente a las monedas extranjeras.
(iii) POR CUANTO, en este contexto, el Banco implemento un proceso de reestructuracion de acuerdo con lo dispuesto por la Ley No. 21.526 y sus modificatorias (la "Ley de Entidades Financieras"), y presento un plan de regularizacion, posteriormente modificado (el "Plan de Capitalizacion y Liquidez de Galicia"), ante el Banco Central de la Republica Argentina (el "BCRA"), en el cual se dispone la reestructuracion de la Deuda Existente a Reestructurar, y que contempla la exitosa reestructuracion de la Deuda Existente a Reestructurar como componente esencial del mismo.
Exhibit A-1
(iv) POR CUANTO, en el contexto del Decreto No. 739/03, del Decreto Nro. 1262/03, y de las Comunicaciones "A" 3941 y "A" 3940 del BCRA, con fecha 27 de noviembre de 2003 dicho organismo aprobo los terminos y condiciones de reestructuracion de la Deuda Existente a Reestructurar.
(v) POR CUANTO, como parte de la reestructuracion de deuda, el Banco ha propuesto reestructurar las Instrumentos de deuda bancaria a traves de un canje voluntario de Instrumentos de deuda bancaria, como se describe en el Suplemento de Precio de fecha 23 de diciembre de 2003 y en la Addenda a dicho Suplemento de Precio del 18 de Marzo de 2004 (la "Oferta de Canje de Obligaciones Negociables"). En virtud de la Propuesta de Reestructuracion, el Banco ha solicitado una Carta de aceptacion (definida mas abajo) cuyos terminos contienen una autorizacion al Banco para firmar el APE y un Poder (definido mas abajo) en virtud del cual se faculta al Representante a suscribir el presente APE y a asistir a las Asambleas (definida mas abajo) en nombre de cada uno de los Obligacionistas Participantes. El plazo para presentar las Instrumentos de deuda bancaria para participar en la Oferta de Canje de Obligaciones Negociables vencio el dia de 2004 (la "Fecha de Vencimiento"), habiendose presentado validamente para su canje un % [__] del capital total de las Instrumentos de deuda bancaria, en virtud de los terminos de la Oferta de Canje de Obligaciones Negociables.
(vi) POR CUANTO, como parte de la reestructuracion de deuda, la Deuda Bancaria Existente, la Deuda Existente de Comercio Exterior y la Deuda Existente Clase "A" se reestructuraran a traves de distintos acuerdos voluntarios de reestructuracion privada celebrados con los Bancos, los Acreedores de Comercio Exterior y los Acreedores Clase "A", respectivamente, descriptos en los Anexos III, IV y V (respectivamente, el "Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria", "Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior" y "Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", y junto con la Oferta de Canje de Obligaciones Negociables, la "Propuesta de Reestructuracion"). En virtud de la referida reestructuracion de deuda, el Banco ha solicitado a los Bancos, Acreedores de Comercio Exterior y Acreedores Clase "A" que suscriban el presente APE.
(vii) POR CUANTO, la Propuesta de Reestructuracion contempla el ejercicio por parte del Banco de su derecho a llevar adelante un procedimiento de APE (el "Procedimiento de APE) de acuerdo con lo dispuesto en los articulos 69 a 76 de la Ley de Quiebras No. 24.522 y sus modificatorias (la "Ley de Quiebras"), con el objeto de extender los efectos de la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", a los titulares de Deuda Existente a Reestructurar que no hubieran participado en la Propuesta de Reestructuracion.
(viii) POR CUANTO, la Propuesta de Reestructuracion se encontrara en plena vigencia con respecto a los acreedores que hubieran participado en los mismos, independientemente de la Homologacion Judicial (definida mas abajo) del presente APE, que no constituye una condicion para el perfeccionamiento de la misma.
(ix) POR CUANTO, a traves del presente APE el Banco pretende alcanzar la reestructuracion integral de su deuda externa, lo que incluye celebrar un acuerdo de reestructuracion con todos los Acreedores Afectados (definidos mas abajo) bajo la Deuda Existente a Reestructurar.
(x) POR CUANTO, dado que las propuestas de reestructuracion presentadas a los tenedores de Obligaciones Negociables y a los Bancos tienen terminos economicos sustancialmente equivalentes, los tenedores de Obligaciones Negociables y los Bancos se agruparon en la misma categoria de acreedores financieros. Asimismo, dado que cada una de las propuestas de reestructuracion presentadas a los Acreedores de Comercio Exterior y a los Acreedores Clase "A" poseen sus terminos y condiciones particulares, cada uno de ellos constituye una categoria distinta de acreedores financieros.
(xi) POR CUANTO, el presente APE contempla, de acuerdo con lo dispuesto por el
articulo 76 de la Ley de Quiebras, que si el Tribunal de Quiebras (definido mas
abajo) homologa la presentacion aqui prevista, (a) los titulares de las
Instrumentos de deuda bancaria que no hubieran participado en la Oferta de Canje
de Obligaciones Negociables y los Bancos que no hubieran participado en el
Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria se veran obligados
a canjear sus Instrumentos de deuda bancaria y Deuda Bancaria Existente,
respectivamente, por Unidades (como se las define mas abajo), que el Banco
considerara que dichos titulares han optado por recibir en la Primera Etapa
(definida en el Anexo II) de la Oferta de Canje de Obligaciones Negociables, (b)
los Acreedores de Comercio Exterior que no hubieran participado en el Acuerdo y
Documentacion de Reestructuracion de Deuda de Comercio Exterior se veran
obligados a canjear su Deuda Existente de Comercio Exterior por unidades
sustancialmente en los terminos ofrecidos en la Oferta de Canje de Obligaciones
Negociables en terminos similares a los del Acuerdo y Documentacion de
Reestructuracion de Deuda de Comercio Exterior; y (c) los Acreedores Clase "A"
que no hubieran participado en el Acuerdo y Documentacion de Reestructuracion de
Deuda Clase "A" se veran obligados a aceptar la reestructuracion de su Deuda
Existente Clase "A" del modo previsto en el Acuerdo y Documentacion de
Reestructuracion de Deuda de Comercio Exterior.
POR TODO ELLO, las Partes acuerdan celebrar el presente APE de acuerdo con los terminos de los articulos 69 a 76 y disposiciones relacionadas de la Ley de Quiebras.
Exhibit A-2
SECCION I
Definiciones.
Clausula 1.1
"Creditos Administrativos" significa el monto de costas judiciales a pagar, determinado por el Tribunal de Quiebras, asi como los honorarios y costos legales relacionados con la administracion del proceso judicial relacionado con el Procedimiento de APE y la proteccion de los activos del Banco que gozan de prioridad en virtud del articulo 240 de la Ley de Quiebras, incluyendo todos los creditos, costos, honorarios y gastos incurridos por el Representante de los Acreedores Participantes como consecuencia del Procedimiento de APE.
"Acreedores Afectados" significa (i) en el caso de cualquier serie de Instrumentos de deuda bancaria, todos los titulares de las Instrumentos de deuda bancaria; (ii) en el caso de la Deuda Bancaria Existente, todos los titulares de Deuda Bancaria Existente; (iii) en el caso de la Deuda Existente de Comercio Exterior, todos los titulares de Deuda Existente de Comercio Exterior; y (iv) en el caso de Deuda Existente Clase "A", todos los titulares de Deuda Existente Clase "A".
"APE" tendra el significado previsto en el parrafo introductorio del presente.
"Fecha de Presentacion del APE" significa la fecha en la que este APE se presente ante el Tribunal de Quiebras en virtud de lo dispuesto por el articulo 72 de la Ley de Quiebras, lo cual debera ocurrir (i) dentro de los 3 Dias Habiles Judiciales anteriores a la Fecha de Liquidacion, o (ii) con posterioridad a la Fecha de Liquidacion.
"Procedimiento de APE" tendra el significado previsto en los Considerandos del presente.
"Ley de Quiebras" tendra el significado previsto en los Considerandos del presente.
"BCRA" tendra el significado previsto en los Considerandos del presente.
"Observacion del BCRA" significa cualquier observacion formal del BCRA con respecto a la capacidad del Banco de utilizar un Procedimiento de APE en virtud de la legislacion argentina.
"Estado de Situacion Patrimonial" significa el listado de activos y pasivos del Banco a la Fecha de Celebracion, certificado por contador publico independiente, de acuerdo con lo dispuesto por el articulo 72, inciso 1, de la Ley de Quiebras.
"Banco" tendra el significado previsto en el parrafo introductorio del presente.
"Bancos" tendra el significado previsto en el parrafo introductorio del presente.
"Listado de Libros del Banco" significa el listado de todos los libros utilizados por el Banco dentro de su operatoria, con la indicacion del ultimo folio utilizado a la Fecha de Celebracion de acuerdo a lo dispuesto en el articulo 72, inciso 4 de la Ley de Quiebras.
"Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria" tendra el significado previsto en los Considerandos del presente, segun el detalle incluido en Anexo III.
"Tribunal de Quiebras" significa un tribunal argentino en lo comercial que sea competente respecto del Procedimiento de APE.
"BCBA" significa la Bolsa de Comercio de Buenos Aires. "CNV" significa la Comision Nacional de Valores. "BCC" significa la Bolsa de Comercio de Cordoba. |
"Homologacion Judicial" significa la homologacion del presente APE por parte del Tribunal de Quiebras, de acuerdo con lo dispuesto en el articulo 76 de la Ley de Quiebras.
"Fecha de Homologacion Judicial" significa la fecha en la cual ocurra la Homologacion Judicial (sin tener en cuenta cualquier impugnacion o recurso presentado contra dicha Homologacion Judicial, tal como ello se preve en los Articulos 51, 60 y concordantes de la Ley de Quiebras.
Exhibit A-3
"Listado de Acreedores" significa el listado de acreedores del Banco a la Fecha de Celebracion, certificado por contador publico independiente, de acuerdo con lo dispuesto en el articulo 72, inciso 2 de la Ley de Quiebras.
"Detalle de la Deuda Existente a Reestructurar de los Acreedores Participantes" significa el detalle del total de la Deuda Existente a Reestructurar de los Acreedores Participantes, y el porcentaje de Acreedores Afectados que dichos Acreedores Participantes representan, de acuerdo a lo dispuesto en el articulo 72, inciso 5 de la Ley de Quiebras.
"Fecha de Celebracion" tendra el significado previsto en los Considerandos del presente.
"Deuda Bancaria Existente" tendra el significado previsto en los Considerandos del presente.
"Deuda con los Obligacionistas Existentes" tendra el significado previsto en los Considerandos del presente.
"Instrumentos de deuda bancaria" tendra el significado previsto en el parrafo introductorio del presente.
"Deuda Existente a Reestructurar" tendra el significado previsto en los Considerandos del presente.
"Deuda Existente de Comercio Exterior" tendra el significado previsto en los Considerandos del presente.
"Deuda Existente Clase "A"" tendra el significado previsto en los Considerandos del presente.
"Fecha de Vencimiento" tendra el significado previsto en los Considerandos del presente.
"Ley de Entidades Financieras" tiene el significado otorgado en los Considerandos del presente.
"Plan de Capitalizacion y Liquidez de Galicia" tendra el significado previsto en los Considerandos del presente.
"Acciones Preferidas de Grupo Galicia" tendra el significado previsto en Anexo II al presente.
"Listado de Acciones Judiciales y Procesos Administrativos" significa el listado de acciones, juicios o procesos judiciales, arbitrales, administrativos y demas procesos pendientes contra el Banco o que afecten a este, ante cualquier tribunal, organismo o autoridad gubernamental, o arbitro, de acuerdo a lo dispuesto en el articulo 72, inciso 3 de la Ley de Quiebras.
"Dia Habil Judicial" significa un dia (excepto sabado o domingo) en el que funcionen los Tribunales en Buenos Aires.
"Carta de aceptacion" significa la carta electronica de transmision y autorizacion otorgada por cada uno de los Obligacionistas Participantes al Representante para presentar las Instrumentos de deuda bancaria en virtud de la Oferta de Canje de Obligaciones Negociables. La Carta de aceptacion contiene ademas una autorizacion a firmar el APE.
"MAE" significa el Mercado Abierto Electronico S.A.
"Asambleas" significa las asambleas de titulares de las Instrumentos de deuda bancaria que el Banco pueda convocar o solicitar que convoque el Tribunal de Quiebras, antes o despues de la Fecha de Presentacion del APE, a los efectos de confirmar la suscripcion del APE y la solicitud al Tribunal de Quiebras de extender los efectos del APE a los Acreedores No Participantes.
"Nuevas Obligaciones Negociables" significa, conjuntamente, las Obligaciones Negociables a Largo Plazo, las Obligaciones Negociables Subordinadas, y las Obligaciones Negociables a Mediano Plazo - todas ellas definidas en Anexo II.
"Bancos No Participantes" tendra el significado previsto en la Clausula 2.1(b) del presente.
"Acreedores No Participantes" significa los titulares de Deuda Existente a Reestructurar, que aunque no suscriban el presente APE, y con sujecion a la Homologacion Judicial, quedaran obligados en virtud de los terminos del APE, de acuerdo con lo dispuesto por el articulo 76 de la Ley de Quiebras.
"Dispensa de los Acreedores No Participantes" tendra el significado previsto en la Clausula 3.2 del presente.
"Obligacionistas No Participantes" tendra el significado previsto en la Clausula 2.1(b) del presente.
Exhibit A-4
"Acreedores de Comercio Exterior No Participantes" tendra el significado previsto en la Clausula 2.1(b) del presente.
"Acreedores de Comercio Exterior "A" No Participantes" tendra el significado previsto en la Clausula 2.1(b) del presente.
"Obligacionistas" tendra el significado previsto en los Considerandos del presente.
"Oferta de Canje de Obligaciones Negociables" tendra el significado previsto en los Considerandos del presente.
"Prospecto" significa el prospecto de fecha 5 de noviembre de 2003, cuya copia se adjunta en Anexo II.
"Bancos Participantes" tendra el significado previsto en el parrafo introductorio del presente, incluyendo a los sucesores, cesionarios o beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Obligacionistas Participantes" tendra el significado previsto en el parrafo introductorio del presente, incluyendo a los sucesores, cesionarios o beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Acreedores Participantes" significa, conjuntamente, los Obligacionistas Participantes, los Bancos Participantes, los Acreedores de Comercio Exterior Participantes, y los Acreedores Clase "A" Participantes.
"Acreedores Clase "A" Participantes" tendra el significado previsto en el parrafo introductorio del presente, incluyendo a los sucesores, cesionarios o beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Acreedores de Comercio Exterior Participantes" tendra el significado previsto en el parrafo introductorio del presente, incluyendo a los sucesores, cesionarios o beneficiarios de transferencias efectuadas por cualquiera de ellos.
"Partes" tendra el significado previsto en el parrafo introductorio del presente.
"Peso" tendra el significado previsto en los Considerandos del presente.
"Poder" es la autorizacion otorgada por cada Obligacionista Participante a favor del Representante, facultandolo a suscribir el presente APE en nombre de dicho Obligacionista Participante de acuerdo con la Ley de Quiebras, y a asistir a las Asambleas y votar en ellas en nombre del mandante. Cada Poder, incluido en Anexo I, ha sido validamente autenticado de acuerdo a los requisitos aplicables bajo ley argentina (certificacion por escribano publico, apostilla o autenticacion equivalente).
"Periodo Previo a la Homologacion Judicial" significa el periodo trancurrido entre la Fecha de Presentacion del APE ante el Tribunal de Quiebras y la fecha de su Homologacion Judicial.
"Suplemento de Precio" significa el suplemento de precio respecto de las Nuevas Obligaciones Negociables, de fecha 23 de diciembre de 2003, cuya copia se adjunta en Anexo II.
"Representante" tendra el significado previsto en el parrafo introductorio del presente.
"Propuesta de Reestructuracion" tendra el significado previsto en los Considerandos del presente.
"Ley deTitulos Valores" tiene el significado establecido en la Clausula 7.3 del presente.
"Fecha de Liquidacion" significa la fecha en la cual se completen las transacciones contempladas bajo (i) la Oferta de Canje de Obligaciones Negociables, (ii) el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, (iii) el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, (iv) el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" (en el sentido que la Fecha de Liquidacion para todos los Acreedores Participantes ocurrira el mismo dia), no quedando pendientes acciones alguna para el perfeccionamiento de dichas transacciones.
"Acreedores Clase "A"" tendra el significado previsto en el parrafo introductorio del presente.
"Acreedores de Comercio Exterior" tendra el significado previsto en el parrafo introductorio del presente.
"Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A"" tendra el significado previsto en los Considerandos del presente.
"Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior" tendra el significado previsto en los Considerandos del presente.
"Acreedores No Afectados" tendra el significado previsto en la Clausula 2.4 del presente.
"Unidades" tiene el significado estipulado en el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria.
"Dispensa" tendra el significado previsto en la Clausula 3.1 del presente.
Interpretacion.
Clausula 1.2. A todos los efectos del presente APE, a menos que se dispusiera expresamente algo distinto en el presente, o a menos que el contexto exigiera otra cosa: (a) los terminos definidos en el APE tendran los significados aqui previstos, e incluiran el plural y el singular, y viceversa; (b) las palabras representativas de un genero incluiran al otro; (c) cualquier referencia a una
Exhibit A-5
"Seccion", "Clausula" o "Anexo" seran referencias a una Seccion, Clausula o Anexo del presente; (d) todas las referencias al presente APE y las expresiones "en el presente", "del presente", "al presente" o "en virtud del presente", y expresiones similares, haran referencia al presente APE en su totalidad, y no a una Seccion, Clausula, Anexo u otra subdivision en particular; (e) cualquier referencia a "incluye" o "incluyendo" significa "incluyendo de manera no taxativa"; y (f) cualquier referencia a acuerdos o contratos, incluyendo el presente APE, hara referencia a los mismos y a sus respectivos anexos, apendices y adjuntos, y a sus posibles modificaciones y suplementos.
SECCION II
Homologacion Judicial del APE
Clausula 2.1. (a) Es intencion del Banco que la Propuesta de Reestructuracion reestructure solamente la Deuda Existente a Reestructurar. Para efectuar dicha reestructuracion, el Banco ha implementado: (i) la Oferta de Canje de Obligaciones Negociables, (ii) el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria; (iii) el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior; y (iv) el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A".
(b) A fin de extender los efectos de la reestucturacion de la Deuda Existente a Reestructurar a los tenedores que no hubieran participado en la Oferta de Canje de Obligaciones Negociables (los "Obligacionistas No Participantes"), a los Bancos que no hubieran participado en el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria (los "Bancos No Participantes"), los Acreedores de Comercio Exterior que no hubieran participado en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior (los "Acreedores de Comercio Exterior No Participantes") y a los Acreedores Clase "A" que no hubieran participado en el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" (los "Acreedores Clase "A" No Participantes"), los Acreedores Participantes acuerdan que el Banco podra solicitar la Homologacion Judicial del presente APE a fin de obligar:
(i) a los Obligacionistas No Participantes y a los Bancos No Participantes a aceptar - a cambio de la porcion respectiva de su Deuda Existente a Reestructurar - Unidades que el Banco considerara que dichos titulares han optado por recibir en la Primera Etapa (definida en el Anexo II) de la Oferta de Canje de Obligaciones Negociables descripta en Anexo II;
(ii) a los Acreedores de Comercio Exterior No Participantes a aceptar - a cambio de la porcion respectiva de su Deuda Existente a Reestructurar - Unidades sustancialmente en los terminos ofrecidos en la Oferta de Canje de Obligaciones Negociables en terminos similares a los del Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior; y
(iii) a los Acreedores Clase "A" que no hubieran participado en el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" a aceptar la reestructuracion de su Deuda Existente Clase "A" del modo previsto en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior.
Clausula 2.2. A los efectos del Procedimiento de APE, los Acreedores Participantes reconocen y aceptan que los Obligacionistas Participantes y los Bancos Participantes formaran parte de la misma clase de acreedores, dado que los terminos economicos de las propuestas a ellos presentadas son sustancialmente identicos; y que los Acreedores de Comercio Exterior y los Acreedores Clase "A" constituiran clases separadas de acreedores.
Clausula 2.3. (a) Los Acreedores Participantes reconocen que el Banco tiene derecho a presentar el APE en la Fecha de Presentacion del APE, a su solo criterio y sujeto a que obtenga las mayorias descriptas en la Clausula 2.3 (b) anterior, a fin de obtener la Homologacion Judicial del APE de acuerdo con lo dispuesto por los articulos 69 a 76 y disposiciones relacionadas de la Ley de Quiebras.
(b) A la Fecha de Presentacion del APE, el Banco declara que:
(i) los Acreedores Participantes representaran la mayoria absoluta de los Acreedores Afectados, representando por lo menos el 95% de la Deuda Existente a Reestructurar pendiente de pago a esa fecha;
(ii) dentro de la clase formada por los Obligacionistas Participantes y los Bancos Participantes, el Banco habra obtenido las mayorias previstas bajo ley Argentina;
(iii) dentro de la clase formada por los Acreedores de Comercio Exterior Participantes, el Banco habra obtenido las mayorias previstas bajo ley Argentina; y
(iv) dentro de la clase formada por los Acreedores Clase "A" Participantes, el Banco habra obtenido las mayorias previstas bajo ley Argentina.
A los efectos de determinar las referidas mayorias, (i) de acuerdo con lo dispuesto en el parrafo 3 del articulo 45 bis de la Ley de Quiebras, (A) los titulares de Obligaciones Negociables al 9% con vencimiento en 2003 se agruparon en los que estan a favor del
Exhibit A-6
APE y los que se oponen al mismo, y los titulares de Obligaciones Negociables a Tasa Flotante Creciente con vencimiento en 2002 se agruparon en los que estan a favor del APE y los que se oponen al mismo, y (B) cada grupo se trato como un Acreedor Afectado, de modo tal que se considero que cada tramo de Obligaciones Negociables al 9% con vencimiento en 2003 y de Obligaciones Negociables a Tasa Flotante Creciente con vencimiento en 2002 estaba en poder de dos Acreedores Afectados; y (ii) cada Banco que era parte en el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, cada Acreedor de Comercio Exterior que era parte en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y cada Acreedor Clase "A" que era parte en el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", se trato como un Acreedor Afectado separado.
(c) De acuerdo con los requisitos previstos en el articulo 72 de la Ley de
Quiebras, los siguientes documentos, debidamente certificados por contador
publico independiente, seran presentados por el Banco (juntamente con el APE y
otros documentos) ante el Tribunal de Quiebras en la Fecha de Presentacion del
APE: (i) el Estado de Situacion Patrimonial; (ii) el Listado de Acreedores;
(iii) el Listado de Acciones Judiciales y Procesos Administrativos; (iv) el
Listado de Libros del Banco; y (v) el Detalle de la Deuda Existente a
Reestructurar de los Acreedores Participantes.
Clausula 2.4. Los Acreedores Participantes reconocen y acuerdan que en virtud del APE el Banco (i) no tiene intencion de modificar los terminos de sus obligaciones con los acreedores que no sean Acreedores Afectados, como por ejemplo (de manera no taxativa) los acreedores de la deuda originalmente correspondiente a su Sucursal Nueva York y posteriormente canjeada por deuda del Banco en julio de 2002 (los "Acreedores No Afectados", cuyas categorias de acreedores se adjuntan como Anexo VI, declarando y garantizando el Banco que se trata de una lista verdadera y completa de las categorias de acreedores a la fecha del presente), (ii) que es intencion del Banco cumplir sus obligaciones con los Acreedores No Afectados de acuerdo con los actuales terminos de las mismas y sus modificaciones, y de acuerdo con las leyes argentinas aplicables, y que el Banco se reserva el derecho de realizar el pago total a cualquier Acreedor No Afectado en la fecha de vencimiento de sus respectivas acreencias, en el giro normal de las operaciones del Banco. No obstante lo antedicho, si el Tribunal de Quiebras solicitara al Banco obtener el consentimiento de los Acreedores No Afectados para suscribir el presente APE, el Banco por el presente se compromete a hacer sus mejores esfuerzos para cumplir con dicha solicitud del Tribunal de Quiebras, y (iii) continuara llevando a cabo sus negocios bajo la autoridad y supervision del BCRA, cuya autoridad y poderes de supervision y regulatorios sobre el Banco se mantendran sin cambios en todo momento.
SECCION III
Dispensas del incumplimiento de ciertos compromisos asumidos por el Banco en virtud de la Deuda Existente a Reestructurar.
Clausula 3.1. Las Partes acuerdan que, al producirse la liquidacion de la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", ellas estaran sujetas a las renuncias previstas bajo dichos documentos y a los terminos y condiciones alli previstos ( la "Dispensa").
Clausula 3.2. Si el presente APE resultara homologado judicialmente, se
considerara que los Acreedores No Participantes han convenido que, contra
entrega de la contraprestacion prevista en el presente con respecto a los
Acreedores No Participantes, el Banco (i) quedara liberado de, y se considerara
que los Acreedores No Participantes han dispensado, el incumplimiento de
cualquier otro termino o condicion de la Deuda Existente a Reestructurar con los
Acreedores No Participantes, incluyendo supuestos de incumplimiento que existan
o puedan haber existido antes o al momento de la contraprestacion prevista en
este APE con respecto a los Acreedores No Participantes; y (ii) quedara liberado
de todos los pasivos del Banco con respecto a los Acreedores No Participantes
(la "Dispensa de los Acreedores No Participantes").
SECCION IV
Vigencia de la reestructuracion de la Deuda Existente a Reestructurar.
Clausula 4.1. Las Partes acuerdan que los terminos y condiciones de la Propuesta de Reestructuracion entraran en vigencia en la Fecha de Liquidacion.
Clausula 4.2. En el caso de el APE no fuera homologado por el Tribunal de Quiebras, ya sea porque este APE no fue presentado al Tribunal de Quiebras por el Banco o por cualquier otro motivo, el presente APE seguira siendo vinculante respecto de los Acreedores Participantes y el Banco, y todos los actos y acuerdos realizados en virtud de la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior y/o el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" seguiran en plena vigencia, generando derechos y obligaciones para los sucesores, derechohabientes, herederos y representantes personales de los Acreedores Participantes y el Banco.
Exhibit A-7
SECCION V
Efectos de la Homologacion Judicial respecto de los Acreedores No Participantes.
Clausula 5.1. De acuerdo con lo dispuesto por el articulo 76 de la Ley de Quiebras, si se otorgara la Homologacion Judicial, las Partes acuerdan que el presente APE sera vinculante para todos los Acreedores Afectados, inclusive los Acreedores No Participantes.
Clausula 5.2. La Propuesta de Reestructuracion que se extendera a los Acreedores No Participantes implicara la cancelacion y extincion de todas las obligaciones del Banco en virtud de la Deuda Existente a Reestructurar correspondiente a dichos Acreedores No Participantes, y el canje o reestructuracion obligatoria de dicha Deuda Existente a Reestructurar, segun corresponda, de acuerdo a lo dispuesto en esta Seccion V.
Clausula 5.3. Los terminos y condiciones reestructurados con respecto a los Acreedores No Participantes entraran en vigencia entre el Banco y estos, a partir de la Fecha de Homologacion Judicial.
Clausula 5.4. Con sujecion a la Homologacion Judicial, el Banco llevara a cabo los siguientes actos con respecto a cada Acreedor No Participante:
(I) OBLIGACIONISTAS NO PARTICIPANTES Y BANCOS NO PARTICIPANTES
El Banco entregara a los Obligacionistas No Participantes y a los Bancos No Participantes, Unidades por una suma de capital total equivalente al 100% del capital de sus Instrumentos de deuda bancaria y Deuda Bancaria Existente, con mas los intereses devengados e impagos, de acuerdo a lo previsto en la Oferta de Canje de Obligaciones Negociables descripta en el Anexo II y el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria descripto en el Anexo III.
(II) ACREEDORES DE COMERCIO EXTERIOR NO PARTICIPANTES
El Banco entregara a los Acreedores de Comercio Exterior No Participantes, Unidades sustancialmente en los terminos ofrecidos en la Oferta de Canje de Obligaciones Negociables por una suma de capital total equivalente al 100% del capital de su Deuda Existente de Comercio Exterior, con mas los intereses devengados e impagos, de acuerdo a lo previsto en la Oferta de Canje de Obligaciones Negociables descripta en el Anexo II.
(III) ACREEDORES CLASE "A" NO PARTICIPANTES
El Banco reestructurara la Deuda Existente Clase "A" del modo previsto en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior descripto en el Anexo V.
Clausula 5.5. Se considerara que todos los Acreedores No Participantes que reciban las contraprestaciones previstas en este APE, de acuerdo a lo que resuelva el Tribunal de Quiebras, efectuan las Declaraciones y Garantias incluidas en la Seccion VII del presente.
SECCION VI
Declaraciones y Garantias del Banco.
El Banco por el presente declara y garantiza a las demas Partes, a la fecha del presente, lo siguiente:
Clausula 6.l. Consentimientos. No se requiere ningun consentimiento, aprobacion, autorizacion, notificacion, orden o inscripcion por parte de ninguna autoridad gubernamental o regulatoria ni de ningun tribunal, a fin de perfeccionar las operaciones previstas en el APE, con excepcion de (i) la ausencia de una Observacion del BCRA (como se la define abajo) respecto del APE; (ii) la Homologacion Judicial; (iii) la aprobacion de la CNV de la oferta publica de las Nuevas Obligaciones Negociables y las Acciones Preferidas de Grupo Galicia (como se la define abajo) y la autorizacion para negociar las Nuevas Obligaciones Negociables en la BCC y el MAE y la autorizacion para negociar las Acciones Preferidas de Grupo Galicia en la BCBA, la BCC y el MAE; y (iv) la ratificacion del APE por parte de los accionistas del Banco, en el plazo de 30 dias contados a partir de la Fecha de Presentacion del APE.
Clausula 6.2. Conflictos. La celebracion y otorgamiento del APE por parte del
Banco, el cumplimiento de sus obligaciones en virtud del presente y el
perfeccionamiento de las operaciones aqui previstas, no entraran en conflicto
con, ni provocaran un incumplimiento de, los terminos, condiciones y
disposiciones del acta constitutiva o los estatutos del Banco, ni de ninguna ley
o norma aplicable. Adicionalmente, a esta fecha, todos los actos efectuados por
el Banco para la celebracion y presentacion de este APE, han sido efectuados de
modo compatible con el derecho de los Acreedores Participantes a recibir un
trato igualitario.
Exhibit A-8
Clausula 6.3. Exigibilidad de la Propuesta de Reestructuracion. La Propuesta de Reestructuracion y las consideraciones alli previstas constituyen obligaciones legitimas, validas y vinculantes del Banco, exigibles de acuerdo con los terminos de la correspondiente documentacion, excepto en la medida en que su exigibilidad pudiera verse limitada por leyes de quiebra, insolvencia, concurso, moratoria o leyes similares que afecten los derechos de los acreedores en general, y por los principios generales de equidad (ya sea que su cumplimiento se exija en virtud del sistema de derecho estricto o del common law).
SECCION VII
Declaraciones y Garantias de los Acreedores Participantes.
Clausula 7.l. Con respecto a la reestructuracion. A la Fecha de Homologacion Judicial, cada Acreedor Participante renuncia a cualquier derecho que pudiera tener en virtud de la legislacion argentina de (i) oponerse a la validez de las operaciones previstas en el presente y en la Oferta de Canje de Obligaciones Negociables, en el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, en el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y en el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", incluyendo el derecho a interponer una accion revocatoria respecto de los pagos efectuados por el Banco en tal sentido, y (ii) iniciar acciones de responsabilidad contra los directores, sindicos o funcionarios jerarquicos del Banco como consecuencia de las referidas operaciones, excepto que dicha accion derive de una conducta dolosa del director, sindico o funcionario jerarquico del Banco o del incumplimiento de los estatuso del Banco o de cualquier ley o regulacion. Las renuncias y/o consentimientos previstos en el presente no seran aplicables a cualquir acto u omision del banco que constituya un incumplimiento de cualquier obligacion del Banco bajo la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A".
Clausula 7.2. Con respecto al levantamiento de inhibiciones sobre la disposicion de los activos del Banco. Cada uno de los Acreedores Participantes reconoce que, al celebrar el presente APE, se considerara que el mismo aprueba cualquier solicitud del Banco para levantar o eliminar cualquier medida de inhibicion general sobre la disposicion de los activos del Banco que pudiera haber sido impuesta por el Tribunal de Quiebras en relacion con el APE durante el Periodo Previo a la Homologacion Judicial, al producirse la Homologacion Judicial y hasta la fecha en que el Tribunal de Quiebras formalmente declare que el Banco ha dado cumplimiento a todas sus obligaciones en virtud del APE, de acuerdo con lo dispuesto por el articulo 59 de la Ley de Quiebras. Las renuncias y/o consentimientos previstos en el presente no seran aplicables a cualquir acto u omision del banco que constituya un incumplimiento de cualquier obligacion del Banco bajo la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A"
Clausula 7.3. Con respecto a las Nuevas Obligaciones Negociables y a las Acciones Preferidas de Grupo Galicia. Cada uno de los Acreedores Participantes reconoce y acuerda, y el Banco declara, que (i) ni el APE ni las Nuevas Obligaciones Negociables y las Acciones Preferidas de Grupo Galicia que el Banco debera entregar en la correspondiente Fecha de Liquidacion, han sido inscriptos en virtud de la Ley de Titulos Valores de 1933 de EE.UU. y sus modificatorias (la "Ley de Titulos Valores"), ni en virtud de ninguna ley de titulos valores estadual de ese pais, y (ii) cualesquiera titulos valores emitidos en virtud del APE y/o la Propuesta de Reestructuracion, seran entregados por el Banco, unicamente (a) en los Estados Unidos, a "compradores institucionales calificados" en los terminos de la Norma 144A de la Ley de Titulos Valores, en una operacion privada basada en una exencion de los requisitos de inscripcion de dicha Ley, y (b) fuera de los Estados Unidos, en operaciones en el exterior basadas en la Regulacion S dictada en virtud de la Ley de Titulos Valores.
Clausula 7.4. Con respecto a la ratificacion del APE. Cada uno de los Obligacionistas Participantes por el presente reconoce que, en virtud de su Carta de Transmision y Autorizacion, ha autorizado al Banco a firmar el APE.
Clausula 7.5. Valido otorgamiento del Poder. Cada Obligacionista Participante ha otorgado validamente al Representante el Poder para llevar adelante los actos alli contemplados.
Clausula 7.6. Efectos del Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A". Cada uno de los Acreedores Participantes por el presente reconoce que si (a) no se otorgara la Homologacion Judicial; (b) se declarara posteriormente la nulidad del APE, o (c) existiera alguna Observacion del BCRA con respecto al Procedimiento de APE, o (d) el Banco decidiera no seguir adelante con el Procedimiento de APE, o (e) no se implementara el APE, entonces, la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", seguiran siendo validos, vinculantes, definitivos y exigibles de acuerdo con sus terminos, y no se veran afectados en modo alguno por el APE.
Clausula 7.7. Con respecto al Representante. Cada Obligacionista Participante reconoce y acuerda que el Representante (a) actua en virtud del presente unicamente en su caracter de apoderado de cada Obligacionista Participante, (b) no asume ninguna obligacion o relacion fiduciaria con respecto al Obligacionista Participante, (c) no tendra ningun deber u obligacion con
Exhibit A-9
excepcion de aquellos especificamente previstos en el presente, y (d) actuara como Representante de los Obligacionistas Participantes en virtud del APE, unicamente a los efectos de recibir y enviar notificaciones e instrucciones en virtud del presente.
Clausula 7.8. Inexistencia de invitaciones. Se considera que cada uno de los
Obligacionistas No Participantes declara y garantiza no haber recibido
invitacion alguna en el Procedimiento de APE por parte de Citi group Global
Markets Inc. en su caracter de principal colocador de las ofertas y la
invitacion a aceptar el APE prevista en la Oferta de Canje de Obligaciones
Negociables, ni de ninguna de sus afiliadas, con la salvedad de que, si un
Obligacionista No Participante no pudiera efectuar dicha certificacion, antes de
que el mismo pueda recibir las Nuevas Obligaciones Negociables como consecuencia
del APE, el Banco le exigira que envie una carta certificando que el mismo es
una persona: (1) que no se encuentra en los "Estados Unidos" en los terminos de
la Norma 903(a)(1) de la Regulacion S dictada en virtud de la Ley de Titulos
Valores, y no es una "persona estadounidense" en los terminos de la Norma 902
(o) de la Regulacion S dictada en virtud de la Ley de Titulos Valores, o (2) que
es un dealer u otro fiduciario profesional constituido o, en el caso de personas
fisicas, residente en los Estados Unidos, que posee una cuenta discrecional o
similar, con excepcion de un acervo hereditario o fideicomiso, en beneficio o
por cuenta de una persona no estadounidense. El Banco podra exigir declaraciones
adicionales a los efectos de dar cumplimiento a las leyes de otras
jurisdicciones.
SECCION VIII
Extincion y Cumplimiento.
Clausula 8.1. Extincion del APE. El APE quedara extinguido en la primera de las
siguientes fechas: (a) en la fecha en que el tribunal de apelacion dicte
sentencia definitiva e inapelable rechazando la homologacion del APE; (b) en la
fecha en que el Tribunal de Quiebras o el BCRA declare la liquidacion del Banco;
(c) cuando el Banco deje de cumplir o viole cualquier compromiso o acuerdo
contenido en el presente APE, y tal incumplimiento continuara por un periodo de
30 (treinta) dias consecutivos luego de notificacion escrita cursada al Banco en
los terminos de la Clausula 9.4.; y (d) cuando cualquier autoridad gubernamental
hubiera nacionalizado o en general expropiado todo o una parte sustancial de los
activos o bienes del Banco, o el capital accionario de este, o hubiera asumido
la custodia o el control de dichos activos o bienes o de la operatoria del Banco
o su capital accionario, o hubiera tomado cualquier medida que impidiera al
Banco o a sus funcionarios llevar a cabo la operatoria de la entidad o una parte
sustancial de la misma, durante un plazo superior a sesenta (60) dias corridos,
y el resultado de dichas medidas afectare de manera sustancial la capacidad del
Banco de cumplir sus obligaciones en virtud del APE.
Las Partes acuerdan que este APE se extinguira automaticamente si la Fecha de Liquidacion no ocurre en o antes del tercer Dia Habil Judicial posterior a la Fecha de Presentacion del APE (si la Fecha de Presentacion del Ape ocurre).
EN CASO DE EXTINCION DEL APE, LAS PARTES DEJARAN DE ESTAR OBLIGADAS POR LOS TERMINOS DEL MISMO, CON LA SALVEDAD DE QUE LOS EFECTOS DE LOS ACTOS Y ACUERDOS REALIZADOS EN VIRTUD DE LA OFERTA DE CANJE DE OBLIGACIONES NEGOCIABLES, EL ACUERDO Y DOCUMENTACION DE REESTRUCTURACION DE DEUDA BANCARIA, EL ACUERDO Y DOCUMENTACION DE REESTRUCTURACION DE DEUDA DE COMERCIO EXTERIOR, Y/O EL ACUERDO Y DOCUMENTACION DE REESTRUCTURACION DE DEUDA CLASE "A", CONTINUARAN EN PLENA VIGENCIA, GENERANDO DERECHOS Y OBLIGACIONES PARA LOS ACREEDORES PARTICIPANTES Y EL BANCO.
Clausula 8.2. Retiro o falta de perfeccionamiento. El Banco se reserva el derecho de retirar y dejar sin efecto el presente APE en cualquier momento luego de su celebracion y antes de la Homologacion Judicial, y, en tal caso, de presentar otras solicitudes de APE. En todos los casos, los efectos de los actos y acuerdos realizados en virtud de la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" continuaran en plena vigencia, generando derechos y obligaciones para los Acreedores Participantes y el Banco.
Clausula 8.3 Cumplimiento. Este APE sera considerado como cumplido, en el caso que la Homologacion Judicial se obtuviere, luego de la entrega de las contraprestaciones establecidas bajo el presente APE a favor de los Acreedores No Participantes y su confirmacion por el Tribunal de Quiebras bajo el Articulo 59 de la Ley de Quiebras. Luego de dicho cumplimiento, las Partes cesaran de estar sujetas a los terminos del presente, previendose sin embargo que los efectos de los actos y acuerdos asumidos de acuerdo a la Oferta de Canje de Obligaciones Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", permaneceran en plena vigencia, seran ejecutables contra y otorgaran beneficios a, los Acreedores Participantes y al Banco.
Clausula 8.4. Ejecucion. A mayor abundamiento, se entiende por el presente que
la celebracion de este APE por o por cuenta de los Acreedores Participantes o la
presentacion de este APE ante el Tribunal de Quiebras no constituye una renuncia
o de cualquier forma un impedimento para que los Acreedores Participantes puedan
ejercer cualquiera de sus derechos bajo la Oferta de Canje de Obligaciones
Negociables, el Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria,
el Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, y
el Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A" o bajo los
documentos que los evidencien o fueren relacionados a ellos, o bajo la ley
aplicable, ante el incumplimiento del Banco de cualquiera de sus obligaciones
bajo los mismos.
Exhibit A-10
SECCION IX
Disposiciones Generales.
Clausula 9.1. Obligaciones de indemnizacion. Las obligaciones o derechos del Banco de defender, indemnizar, reembolsar o limitar la responsabilidad de sus directores, sindicos, funcionarios o empleados presentes o pasados en virtud del acta constitutiva o estatuto del Banco, su politica de indemnizacion al personal, las leyes argentinas aplicables o cualquier acuerdo especifico, respecto de cualquier reclamo, demanda, causa, accion o proceso contra los mismos basado en actos u omisiones relacionados con los servicios que aquellos prestaran al Banco antes de la Fecha de Presentacion del APE, seguiran vigentes luego de la Homologacion Judicial y no se veran afectados por esta, y no quedaran dispensados, independientemente de si dicha defensa, indemnizacion, reembolso o limitacion de responsabilidad se refieren a actos acaecidos antes o despues de la fecha de Homologacion Judicial.
Clausula 9.2. Pago de Creditos Administrativos. (a) Los Acreedores Afectados
reconocen y acuerdan que durante el Periodo Previo a la Homologacion Judicial
(i) en relacion con la celebracion, otorgamiento y cumplimiento del presente
APE, el Banco incurrira en Creditos Administrativos, y (ii) el Banco tiene
derecho a pagar dichos Creditos Administrativos de acuerdo con la decision
judicial correspondiente, los terminos de cualquier acuerdo relacionado con los
mismos, o en terminos menos favorables para los titulares de un Credito
Administrativo segun lo convenido entre el Banco y los titulares de dicho
Credito Administrativo.
Clausula 9.3. Sucesores y derechohabientes. Los derechos, beneficios y obligaciones de cualquier persona fisica o juridica que se mencione o a la que se haga referencia en el APE, seran vinculantes respecto de cualquier heredero, sucesor, cesionario o derechohabiente de dicha persona.
Clausula 9.4. Domicilios. A todos los efectos derivados del APE, las Partes
constituyen domicilio en los indicados en el parrafo introductorio del presente
o bajo los espacios correspondientes a sus firmas abajo, donde se enviaran
validamente todas las notificaciones y comunicaciones que pudieran corresponder,
incluyendo notificaciones judiciales y/o extrajudiciales. Dichos domicilios
continuaran en vigencia hasta tanto cualquiera de las partes notifique lo
contrario expresamente por escrito.
Clausula 9.5. Derecho aplicable; jurisdiccion y competencia. Las leyes argentinas regiran todos los aspectos de este APE, incluyendo su forma y contenido, el proceso de solicitud y aprobacion, y los efectos de su aprobacion y de cualquier sentencia definitiva sobre la Deuda Existente a Reestructurar. A todos los efectos legales derivados del presente, las partes se someten a la jurisdiccion y competencia de los tribunales ordinarios en lo comercial de la ciudad de Buenos Aires, renunciando a cualquier otro fuero o jurisdiccion que pudiera corresponder.
EN FE DE LO CUAL las partes suscriben el presente en ejemplares del mismo tenor y a un solo efecto, en el lugar y fecha arriba indicados.
BANCO DE GALICIA Y BUENOS AIRES S.A.
Nombre: Nombre: Cargo: Cargo: REPRESENTANTE DE LOS OBLIGACIONISTAS PARTICIPANTES Nombre: Cargo: BANCO / ACREEDOR DE COMERCIO EXTERIOR Nombre: |
Cargo:
Exhibit A-11
LISTADO DE ANEXOS
Anexo I Documentacion del Banco y el Representante.
Anexo II Descripcion de la deuda representada por las Instrumentos de deuda bancaria y Terminos y Condiciones Basicos del Canje de Obligaciones Negociables, Deuda de los Obligacionistas Participantes y porcentaje que la misma representa respecto de la Deuda Existente a Reestructurar. Copia del Prospecto, del Suplemento de Precio y de la Addenda al Suplemento de Precio. Anexo III Descripcion de la Deuda Bancaria Existente y Terminos y Condiciones Basicos del Acuerdo y Documentacion de Reestructuracion de Deuda Bancaria, Deuda Bancaria Existente y el procentaje que la misma representa respecto de la Deuda Existente a Reestructurar. Anexo IV Descripcion de la Deuda Existente de Comercio Exterior y Terminos y Condiciones Basicos del Acuerdo y Documentacion de Reestructuracion de Deuda de Comercio Exterior, Deuda de Comercio Exterior y porcentaje que la misma representa respecto de la Deuda Existente a Reestructurar. Anexo V Descripcion de la Deuda Existente Clase "A" y Terminos y Condiciones Basicos del Acuerdo y Documentacion de Reestructuracion de Deuda Clase "A", Deuda Clase "A" y el porcentaje que la misma representa respcto de la Deuda Existente a Reestructurar. Anexo VI Categorias de Acreedores No Afectados. Exhibit A-12 |
(ENGLISH VERSION) |
In the City of Buenos Aires, on the [_] day of the month of [___] of 200_, this out-of-court composition agreement with creditors (Acuerdo Preventivo Extrajudicial) (the "APE" or the "APE Agreement") for the restructuring of debt is entered into, by and between:
1. BANCO DE GALICIA Y BUENOS AIRES S.A., with legal domicile at Tte. Gral. Peron
407, 2nd floor, City of Buenos Aires, Argentine Republic, represented by Mr.
[________], in accordance with the documentation that is attached to this APE
Agreement as Exhibit I (the "Bank"); and
2. (a) CITIBANK, N.A., with legal domicile at 5 Carmelite Street, London, England, represented by Mr. [___________] in its capacity as representative, in accordance with the documentation that is attached to this APE Agreement as Exhibit I (the "Representative"), of the holders of the notes with an interest rate of 9% due in 2003 and step-up floating rate notes due 2002 issued by the Bank (together the "Existing Notes") (collectively the "Participating Noteholders"), in each case that have tendered their existing Notes for exchange under the Notes Exchange Offer (as defined below) and have authorized the execution of this APE Agreement by the Representative on their behalf and granted the Representative the corresponding Power of Attorney (as defined below);
(b) the bank and multilateral agency creditors that will adhere to this APE Agreement by sending to the Bank, on or before the APE Filing Date (as defined below), an executed copy of this APE Agreement (the "Participating Banks");
(c) the trade finance creditors that will adhere to this APE Agreement by sending to the Bank, on or before the APE Filing Date, an executed copy of this APE Agreement (the "Participating Trade Finance Creditors"); and
(d) the creditors of the Existing Trade "A" Debt (as defined below) that will adhere to this APE Agreement by sending to the Bank, on or before the APE Filing Date, an executed copy of this APE Agreement (the "Participating Trade "A" Creditors" and together with the Participating Noteholders, the Participating Banks, and the Participating Trade Finance Creditors, the "Participating Creditors", and together with the Bank, the "Parties").
RECITALS
(i) WHEREAS, on the date of execution of this APE Agreement (the "Execution Date"), the Bank declares that it maintains (a) with all holders of Existing Notes (the "Noteholders"), the debt described in Exhibit II of this APE Agreement (the "Existing Noteholders Debt"); (b) with all the bank and multilateral agency creditors (the "Banks"), the unsecured bank debt detailed in Exhibit III of this APE Agreement (the "Existing Bank Debt"); (c) with all the trade finance creditors (the "Trade Finance Creditors") the existing trade debt described in Exhibit IV of this APE Agreement (the "Existing Trade Finance Debt"); and (d) with all creditors of Existing Trade "A" Debt (as defined below) (the "Trade "A" Creditors") the existing trade debt described in Exhibit V of this APE Agreement (the "Existing Trade "A" Debt" and together with the Existing Noteholders Debt, the Existing Bank Debt, and the Existing Trade Finance Debt, the "Existing Restructuring Debt"). As of the Execution Date, the Bank declares that the Existing Restructuring Debt amounts to US$[____] million in aggregate principal amount.
(ii) WHEREAS, since December 2001, the Bank experienced adverse financial consequences created by, among other factors, the approval of the Public Emergency and Foreign Exchange System Reform Law, Law No. 25,561 and
Exhibit A-13
subsequent decrees and regulations that resulted in the devaluation of the Argentine peso (the "Peso") against foreign currencies,
(iii) WHEREAS, within this context, the Bank implemented a restructuring process, in accordance with Law No. 21,526, as amended (the "Financial Institutions Law"), and submitted a regularization plan, as amended (the "Galicia Capitalization and Liquidity Plan"), to the Central Bank of the Argentine Republic (the "Argentine Central Bank"), which provides for the restructuring of the Bank's Existing Restructuring Debt and contemplates the successful restructuring of the Existing Restructuring Debt as an essential component thereof.
(iv) WHEREAS, within the context of Decree No. 739/03 and 1262/03, and Argentine Central Bank Communique "A" 3941 and Communique "A" 3940, the terms and conditions for restructuring of the Existing Restructuring Debt were approved by the Argentine Central Bank on November 27, 2003.
(v) WHEREAS, as part of the debt restructuring, the Bank has proposed to
restructure the Existing Notes through a voluntary exchange of Existing
Notes, as further described in the Pricing Supplement of the Bank dated
December 23, 2003 and the Supplement to such Pricing Supplement, dated
March 18, 2004 (the "Notes Exchange Offer"). Under the Restructuring
Proposal, the Bank has requested a Letter of Transmittal and Authorization
(as defined below) which contained an authorization for the Bank to file
the APE and a Power of Attorney (as defined below), authorizing the
Representative to execute this APE Agreement on their behalf and appear on
behalf of each of the Participating Noteholders at Meetings (as defined
below). The period for tendering the Existing Notes to participate in the
Notes Exchange Offer has expired on [__], 2004 (the "Expiration Date") and
[__]% of the aggregate principal amount of all Existing Notes has been
validly tendered for exchange and not revoked pursuant to the terms of the
Notes Exchange Offer.
(vi) WHEREAS, as part of the debt restructuring, the Existing Bank Debt, the Existing Trade Finance Debt and the Existing Trade "A" Debt is being restructured through different voluntary restructuring arrangements entered into with the Banks, Trade Finance Creditors and Trade "A" Creditors, respectively, which are attached hereto as Exhibit III, IV and V, respectively (the "Bank Debt Restructuring Arrangement and Documentation", "Trade Finance Debt Restructuring Arrangement and Documentation" and "Trade "A" Debt Restructuring Arrangement and Documentation", respectively, and together with the Notes Exchange Offer, the "Restructuring Proposal"). Under such debt restructuring, the Bank has requested the Banks, Trade Finance Creditors and Trade "A" Creditors to execute this APE Agreement.
(vii) WHEREAS, the Restructuring Proposal provides for the exercise by the Bank of its right to file, in accordance with sections 69 to 76 of the Argentine Bankruptcy Law No. 24,522, as amended (the "Argentine Bankruptcy Law"), an APE procedure (the "APE Procedure") in order to extend the effects of the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and the Trade "A" Debt Restructuring Arrangement and Documentation to those creditors holding Existing Restructuring Debt that did not participate in the Restructuring Proposal.
(viii) WHEREAS, the Restructuring Proposal shall be in full force and effect with respect to the creditors that participated therein, independently from the Court Endorsement (as defined below) of this APE Agreement, which is not a condition to their consummation.
(ix) WHEREAS, the Bank seeks through this APE Agreement to reach a comprehensive restructuring of its foreign debt, which includes having a restructuring agreement with all of its Affected Creditors (as defined below) under the Existing Restructuring Debt.
(x) WHEREAS, given that the restructuring proposals submitted to the holders of Existing Notes and the Banks have substantially equivalent economic terms, the holders of Existing Notes and the Banks were grouped in the same
Exhibit A-14
category of financial creditors. Additionally, since each of the restructuring proposals submitted to the Trade Finance Creditors and to the Trade "A" Creditors have its particular terms and conditions, each of them constitute an additional separate category of financial creditors.
(xi) WHEREAS, this APE Agreement contemplates, in accordance with Section 76 of the Argentine Bankruptcy Law, that if the filing provided herein is endorsed ("homologado") by the Bankruptcy Court (as defined below), (a) the holders of the Existing Notes that did not participate in the Notes Exchange Offer and the Banks that did not participate in the Bank Debt Restructuring Arrangement and Documentation would be compelled to exchange their Existing Notes and Existing Bank Debt, respectively, for Units (as defined below), which the Bank will deem such holders to have elected to receive in the First Step Exchange Offer (as defined in Exhibit II) in the Notes Exchange Offer, (b) the Trade Finance Creditors that did not participate in the Trade Finance Debt Restructuring Arrangement and Documentation would be compelled to exchange their Existing Trade Finance Debt for units substantially in the terms offered in the Notes Exchange Offer on terms similar to those of the Trade Finance Debt Restructuring Arrangement and Documentation; and (c) the Trade "A" Creditors that did not participate in the Trade "A" Debt Restructuring Arrangement and Documentation would be compelled to accept the restructuring of their Existing Trade "A" Debt in the manner contemplated in the Trade Finance Debt Restructuring Arrangement and Documentation.
NOW, THEREFORE, the Parties agree to enter into this APE Agreement in accordance with Sections 69 through 76 and related provisions of the Argentine Bankruptcy Law.
ARTICLE I.
Definitions.
Section 1.1
"Administrative Claims" means the amount of any court tax payable determined by the Bankruptcy Court, as well as any legal fee and costs related to the administration of the court proceedings related to the APE Procedure and the preservation of the Bank's assets that is entitled to priority under Section 240 of the Argentine Bankruptcy Law, including all claims, costs, fees and expenses incurred by the Representative of the Participating Creditors as a consequence of the APE Procedure.
"Affected Creditors" means (i) in the case of any series of Existing Notes, all holders of the Existing Notes; (ii) in the case of the Existing Bank Debt, all holders of Existing Bank Debt; (iii) in the case of the Existing Trade Finance Debt, all holders of Existing Trade Finance Debt; and (iv) in the case of the Existing Trade "A" Debt, all holders of Existing Trade "A" Debt.
"APE" has the meaning specified in the introductory paragraph herein.
"APE Agreement" has the meaning specified in the introductory paragraph herein.
"APE Filing Date" means the date on which this APE Agreement is filed with the
Bankruptcy Court pursuant to Section 72 of the Argentine Bankruptcy Law, which
shall occur (i) within 3 Judicial Business Days prior to the Settlement Date, or
(ii) after the Settlement Date.
"APE Procedure" has the meaning specified in the Recitals herein.
"Argentine Bankruptcy Law" has the meaning specified in the Recitals herein.
"Argentine Central Bank" has the meaning specified in the Recitals herein.
"Argentine Central Bank Objection" means any formal objection by the Argentine Central Bank to the ability of the Bank to avail itself of an APE Procedure under Argentine law.
Exhibit A-15
"Assets and Liabilities Statement" means the list of the Bank's assets and liabilities as of the Execution Date, as certified by an independent public accountant pursuant to Section 72, subsection 1 of the Argentine Bankruptcy Law.
"Bank" has the meaning specified in the introductory paragraph herein.
"Banks" has the meaning specified in the introductory paragraph herein.
"Bank's Books List" means the list of all the books used by the Bank within its business, with the indication of their last used folio as of the Execution Date as provided in Section 72, subsection 4 of the Argentine Bankruptcy Law.
"Bank Debt Restructuring Arrangement and Documentation" has the meaning specified in the Recitals herein and that are further detailed herein under Exhibit III.
"Bankruptcy Court" means a commercial Argentine court with competent jurisdiction over the APE Procedure.
"BASE" means the Buenos Aires Stock Exchange (Bolsa de Comercio de Buenos Aires).
"CNV" means the Argentine Securities Commission ("Comision Nacional de Valores").
"Cordoba Stock Exchange" means the Bolsa de Comercio de Cordoba.
"Court Endorsement" means the endorsement (homologacion) of this APE Agreement by the Bankruptcy Court in accordance with Section 76 of the Argentine Bankruptcy Law.
"Court Endorsement Date" means the date when the Court Endorsement occurs (without taking into consideration any opposition or recourse filed against such Court Endorsement, as set forth in Sections 51, 60 and others of the Argentine Bankruptcy Law).
"Creditors List" means the list of the Bank's creditors, as of the Execution Date as certified by an independent public accountant pursuant to Section 72, subsection 2 of the Argentine Bankruptcy Law.
"Detail of Participating Creditors Existing Restructuring Debt" means the detail of the aggregate principal amount of the Participating Creditors Existing Restructuring Debt and the percentage of Affected Creditors that the Participating Creditors account for, pursuant to Section 72, subsection 5 of the Argentine Bankruptcy Law.
"Execution Date" has the meaning specified in the Recitals herein.
"Existing Bank Debt" has the meaning specified in the Recitals herein.
"Existing Noteholders Debt" has the meaning specified in the Recitals herein.
"Existing Notes" has the meaning specified in the introductory paragraph herein.
"Existing Restructuring Debt" has the meaning specified in the Recitals herein.
"Existing Trade Finance Debt" has the meaning specified in the Recitals herein.
"Existing Trade "A" Debt" has the meaning specified in the Recitals herein.
"Expiration Date" has the meaning specified in the Recitals herein.
"Financial Institutions Law" has the meaning specified in the Recitals herein,
"Galicia Capitalization and Liquidity Plan" has the meaning specified in the Recitals herein.
"Grupo Galicia Preferred Shares" has the meaning specified under Exhibit II herein.
"Judicial Actions and Administrative Proceedings List" means the list of actions, suits or judicial, arbitral, other administrative or other proceedings before any court or governmental agency, authority or body or any arbitrator against or affecting the Bank, pursuant to Section 72, subsection 3 of the Argentine Bankruptcy Law.
"Judicial Business Day" means any day (other than a Saturday or Sunday) on which the courts in Buenos Aires are open.
"Letter of Transmittal and Authorization" means the electronic letter of transmittal and authorization granted by each of the Participating Noteholders to the Representative in order to tender the Existing Notes under the Notes Exchange Offer. The Letter of Transmittal and Authorization also contains an authorization for the Bank to pursue the APE.
"MAE" means the Mercado Abierto Electronico S.A.
Exhibit A-16
"Meetings" means any meetings of holders of the Existing Notes that the Bank may call or request the Bankruptcy Court to call, prior or after the APE Filing Date, in order to confirm the execution of this APE Agreement and to petition to the Bankruptcy Court to extend the effect of the APE Agreement to Non-Participating Creditors.
"New Notes" means, collectively, the Long Term Notes, Subordinated Notes and Medium Term Notes as these terms are defined in Exhibit II.
"Non-Participating Banks" has the meaning specified in Section 2.1(b) hereof.
"Non-Participating Creditors" shall mean the holders of Existing Restructuring Debt, that even though do not execute this APE Agreement, subject to the Court Endorsement, will be obligated pursuant to the terms of the APE Agreement in accordance with Section 76 of the Argentine Bankruptcy Law.
"Non-Participating Creditors' Waiver" has the meaning specified in Sections 3.2 herein.
"Non-Participating Noteholders" has the meaning specified in Section 2.1(b) herein.
"Non-Participating Trade Finance Creditors" has the meaning specified in Section 2.1(b) herein.
"Non-Participating Trade "A" Creditors" has the meaning specified in Section 2.1
(b) herein.
"Noteholders" has the meaning specified in the Recitals herein.
"Notes Exchange Offer" has the meaning specified in the Recitals herein.
"Offering Memorandum" shall mean the offering memorandum dated November 5, 2003, a copy of which is attached hereto as Exhibit II.
"Participating Banks" has the meaning specified in the introductory paragraph herein, including their successor, assignee or transferee of such person or entity.
"Participating Noteholders" has the meaning specified in the introductory paragraph herein, including their heirs, successors, assigns, transferees or assignees of such individual or entity.
"Participating Creditors" means, collectively, the Participating Noteholders, the Participating Banks, the Participating Trade Finance Creditors, and the Participating Trade "A" Creditors.
"Participating Trade "A" Creditors" has the meaning specified in the introductory paragraph herein, including their heirs, successors, assigns, transferees or assignees of such individual or entity.
"Participating Trade Finance Creditors" has the meaning specified in the introductory paragraph herein, including their heirs, successors, assigns, transferees or assignees of such individual or entity.
"Parties" has the meaning specified in the introductory paragraph herein.
"Peso" has the meaning specified in the Recitals herein.
"Power of Attorney" is the authorization granted by each Participating Noteholder in favor of the Representative authorizing the Representative to execute this APE Agreement on behalf of such Participating Noteholder in accordance with the Argentine Bankruptcy Law and to attend and vote at any Meetings on their behalf. Each Power of Attorney, included in Exhibit I, has been validly authenticated under Argentine law requirements (public notary certification, apostille or equivalent authentication).
"Pre-Endorsement Period" means the period of time that runs from the APE Filing Date with the Bankruptcy Court until the date of the Court Endorsement.
"Pricing Supplement" means the pricing supplement in respect of the New Notes dated December 23, 2003, a copy of which is included in Exhibit II.
"Representative" has the meaning specified in the introductory paragraph herein.
"Restructuring Proposal" has the meaning specified in the recitals herein.
"Securities Act" has the meaning specified in Section 7.3 herein.
"Settlement Date" means the date in which the transactions contemplated under the (i) Notes Exchange Offer, (ii) Bank Debt Restructuring Arrangement and Documentation-, (iii) Trade Finance Debt Restructuring Arrangement and Documentation, (iv)
Exhibit A-17
Trade "A" Debt Restructuring Arrangement and Documentation (on the understanding that the Settlement Date for all Participating Creditors shall occur on the same date); are completed, and there are no pending actions to perfect such transactions.
"Trade "A" Creditors" has the meaning specified in the Recitals herein.
"Trade Finance Creditors" has the meaning specified in the Recitals herein.
"Trade "A" Debt Restructuring Arrangement and Documentation" has the meaning specified in the Recitals herein.
"Trade Finance Debt Restructuring Arrangement and Documentation" has the meaning specified in the Recitals herein.
"Unaffected Creditors" has the meaning specified in Section 2.4 herein.
"Units" has the meaning specified in the Bank Debt Restructuring Arrangement and Documentation.
"Waiver" has the meaning specified in Section 3.1 herein.
Interpretation.
Section 1.2. For all purposes of this APE Agreement, except as otherwise expressly provided herein or unless the context otherwise requires: (a) the terms defined in this APE Agreement have the meaning herein specified and include the plural as well as the singular, and vice- versa; (b) words importing gender include all genders; (c) any reference to an "Article" or "Section" or "Exhibit" refers to an Article, Section or Exhibit, as the case may be, of this APE Agreement; (d) all references to this APE Agreement and the phrases "herein", "hereof", "hereto" and "hereunder" and other words of similar import refer to this APE Agreement as a whole, and not to any particular Article, Section, Exhibit or and other kind of subdivision; (e) any references to "includes" or "including" shall mean "including, but not limited to"; and (f) any reference to agreements or contracts, including this APE Agreement, refers to such agreements or contracts, together with all the exhibits, appendixes and attachments thereto and as such agreements or contracts may be amended, restated, supplemented or otherwise modified from time to time.
ARTICLE II
Judicial Endorsement of the APE Agreement.
Section 2.1. (a) The Bank intends that the Restructuring Proposal shall restructure only the Existing Restructuring Debt. In order to effect such restructuring, the Bank shall implement: (i) the Notes Exchange Offer, (ii) the Bank Debt Restructuring Arrangement and Documentation; (iii) the Trade Finance Debt Restructuring Arrangement and Documentation; and (iv) the Trade "A" Debt Restructuring Arrangement and Documentation.
(b) In order to extend the effects of the restructuring of the Existing Restructuring Debt to the holders that did not participate in the Notes Exchange Offer (the "Non-Participating Noteholders"), to the Banks that did not participate in the Bank Debt Restructuring Arrangement and Documentation (the "Non-Participating Banks"), to the Trade Finance Creditors that did not participate in the Trade Finance Debt Restructuring Arrangement and Documentation (the "Non- Participating Trade Finance Creditors") and to the Trade "A" Creditors that did not participate in the Trade "A" Debt Restructuring Arrangement and
Exhibit A-18
Documentation (the "Non-Participating Trade "A" Creditors"), the Participating Creditors agree that the Bank will seek Court Endorsement of this APE Agreement in order to compel:
(i) the Non-Participating Noteholders and the Non-Participating Banks to accept - in exchange for their respective portion of Existing Restructuring Debt - Units which the Bank will deem such holders to have elected to receive in the First Step Exchange Offer (as such term is defined in Exhibit II) had they participated in the Notes Exchange Offer described in Exhibit II herein
(ii) the Non-Participating Trade Finance Creditors to accept - in exchange for their respective portion of Existing Restructuring Debt- Units substantially on the terms offered in the Notes Exchange Offer on terms similar to those of the Trade Finance Debt Restructuring Arrangement and Documentation; and
(iii) the Trade "A" Creditors that did not participate in the Trade "A" Debt Restructuring Arrangement and Documentation would be compelled to accept the restructuring of their Existing Trade "A" Debt in the manner contemplated in the Trade Finance Debt Restructuring Arrangement and Documentation.
Section 2.2. For purposes of the APE Procedure, the Participating Creditors acknowledge and accept that the Participating Noteholders and the Participating Banks shall be part of the same category of creditors, given the fact that the economic terms of the proposals offered to them are substantially similar; and that the Trade Finance Creditors and the Trade "A" Creditors shall constitute, each of them, a separate and individual category of creditors.
Section 2.3. (a) The Participating Creditors acknowledge that the Bank has the right to file the APE Agreement on the APE Filing Date, at its sole discretion subject to obtaining the majorities described in Section 2.3 (b) below, in order to seek the Court Endorsement of this APE Agreement in accordance with Sections 69 through 76 and related provisions of the Argentine Bankruptcy Law.
(b) The Bank represents that, as of the APE Filing Date:
(i) the Participating Creditors shall represent an absolute majority of the Affected Creditors accounting for at least 95% of the aggregate principal amount of the then outstanding Existing Restructuring Debt;
(ii) within the category conformed by the Participating Noteholders and the Participating Banks, the Bank shall have obtained the majorities required under Argentine Law;
(iii) within the category conformed by the Participating Trade Finance Creditors, the Bank shall have obtained the majorities required under Argentine Law; and
(iv) within the category conformed by the Participating Trade "A" Creditors, the Bank shall have obtained the majorities required under Argentine Law.
For purposes of determining such majorities, (i) in compliance with paragraph 3 of Section 45 bis of the Argentine Bankruptcy Law, (A) holders of the Notes with an interest rate of 9% due 2003 were grouped into those who support this APE Agreement and those who oppose this APE Agreement, and holders of the Step-Up Floating Rate Notes due 2002 were grouped into those
Exhibit A-19
who support this APE Agreement and those who oppose this APE Agreement, and (B) each such group was treated as one Affected Creditor such that each tranche of Notes with an interest rate of 9% due in 2003 and Step-Up Floating Rate Notes due 2002 was deemed held by two Affected Creditors; and (ii) each Bank that was a party to the Bank Debt Restructuring Arrangement and Documentation, each Trade Finance Creditor that was a party to the Trade Finance Debt Restructuring Arrangement and Documentation, and each Trade "A" Creditor that was a party to the Trade "A" Debt Restructuring Arrangement and Documentation were treated as separate Affected Creditor.
(c) In compliance with the requirements set forth under Section 72 of the Argentine Bankruptcy Law, the following documents duly certified by an independent public accountant will be filed by the Bank (jointly with the APE Agreement and other documents) before the Bankruptcy Court, on the APE Filing Date: (i) the Assets and Liabilities Statement; (ii) the Creditors List; (iii) the Judicial Actions and Administrative Proceedings List; (iv) the Bank's Books List; and (v) the Detail of the Participating Creditors Existing Restructuring Debt.
Section 2.4. The Participating Creditors acknowledge and agree that the Bank, pursuant to the APE Agreement: (i) does not intend to amend the terms of its obligations with unsecured creditors other than the Affected Creditors, such as (but not limited to) the creditors of the debt originally held by its New York Branch and exchanged for the Bank's debt in July 2002 (the "Unaffected Creditors", a list of which categories of creditors is attached hereto as Exhibit VI, which the Bank hereby represents and warrants is true and complete list of such categories as of the date hereof), (ii) the Bank intends to honor its obligations with the Unaffected Creditors in accordance with their existing terms, as amended, and in accordance with applicable Argentine law and reserves the right to pay any Unaffected Creditor in full on the date that any credit of the Unaffected Creditors becomes due in the ordinary course of the Bank's business. Notwithstanding the foregoing, if the Bankruptcy Court requests the Bank to obtain the consent of the Unaffected Creditors to execute this APE Agreement, the Bank hereby compromises to make its best efforts to fulfill such requirement, and (iii) shall continue to carry its business under the authority and supervision of the Argentine Central Bank, which authority and supervisory and regulatory powers towards the Bank should remain unaffected at all times.
ARTICLE III
Waivers for the non-compliance of certain covenants assumed by the Bank under the Existing Restructuring Debt.
Section 3.1. The Parties agree that upon the settlement of the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation and the Trade "A" Debt Restructuring Arrangement and Documentation, they shall be bound by the waivers provided under such documents and pursuant to the terms and conditions provided therein (together, the "Waiver").
Section 3.2. If this APE Agreement is judicially endorsed, the Non-Participating Creditors will be deemed to have agreed that, upon delivery of the consideration provided in this APE Agreement with respect to the Non-Participating Creditors, the Bank will be (i) discharged from, and the Non-Participating Creditors will be deemed to have waived, the breach and/or non compliance of any and all covenants, and any breach of any other terms and conditions of the Existing Restructuring Debt with the Non-Participating Creditors, including events of default that exist or may have existed on or prior to delivery of the consideration provided in this APE Agreement with respect to the Non-Participating Creditors; and (ii) discharged and released of all liabilities of the Bank with respect to all the Non-Participating Creditors (together, the "Non- Participating Creditors' Waiver").
Exhibit A-20
ARTICLE IV
Effectiveness of the restructuring of the Existing Restructuring Debt.
Section 4.1. The Parties agree that the terms and conditions of the Restructuring Proposal will become effective on the Settlement Date.
Section 4.2. In the event that the APE Agreement is not endorsed by the Bankruptcy Court either because the Bank does not file this APE Agreement with the Bankruptcy Court or otherwise, this APE Agreement will still be binding as to the Participating Creditors and the Bank and all the acts and agreements entered into pursuant the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation and/or the Trade "A" Debt Restructuring Arrangement and Documentation shall remain in full force and effect and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Participating Creditors and the Bank.
ARTICLE V
Effect of Court Endorsement on Non-Participating Creditors.
Section 5.1. In accordance with Section 76 of the Argentine Bankruptcy Law, if the Court Endorsement is granted, the Parties agree that this APE Agreement shall be binding upon all Affected Creditors, including all Non-Participating Creditors.
Section 5.2. The Restructuring Proposal that shall be extended to the Non-Participating Creditors shall imply the cancellation, termination and discharge of all of the obligations of the Bank under the Existing Restructuring Debt held by such Non-Participating Creditors and the mandatory exchange or restructuring of said Existing Restructuring Debt, as the case may be, as provided in this Article V.
Section 5.3. The restructured terms and conditions with respect to the Non-Participating Creditors will become effective between the Bank and the Non-Participating Creditors as from the Court Endorsement Date.
Section 5.4. Subject to the Court Endorsement, the Bank shall execute the following actions with respect to each Non-Participating Creditor:
(I) NON-PARTICIPATING NOTEHOLDERS AND NON-PARTICIPATING BANKS
The Bank shall deliver to the Non-Participating Noteholders and the Non-Participating Banks Units in an aggregate principal amount equivalent to 100% of the principal amount of their Existing Notes and Existing Bank Debt plus the accrued and unpaid interests as provided under the Notes Exchange Offer described in Exhibit II and the Bank Debt Restructuring Agreement and Documentation, as described in Exhibit III.
Exhibit A-21
(II) NON-PARTICIPATING TRADE FINANCE CREDITORS
The Bank shall deliver to the Non-Participating Trade Finance Creditors Units substantially in the terms offered in the Notes Exchange Offer in an aggregate principal amount equivalent to 100% of the principal amount of their Existing Trade Finance Debt plus the accrued and unpaid interests as provided under the Notes Exchange Offer described in Exhibit II.
(III) NON PARTICIPATING TRADE "A" CREDITORS
The Bank shall restructure the Existing Trade "A" Debt in the manner contemplated in the Trade Finance Debt Restructuring Arrangement and Documentation described in Exhibit V.
Section 5.5. All Non-Participating Creditors receiving the considerations set forth under this APE Agreement, as ruled by the Bankruptcy Court, shall be deemed to make the Representations and Warranties set forth in Article VII herein.
ARTICLE VI
Representations and Warranties of the Bank.
The Bank hereby represents and warrants to the other Parties, as of the date hereof:
Section 6.l. No Consents. No consent, approval, authorization, notice or order
of, or filing with, any governmental agency or regulatory authority or any
court, is required for the consummations of the transactions contemplated by
this APE Agreement other than (i) the absence of an Argentine Central Bank
Objection (as defined below) to this APE Agreement; (ii) the Court Endorsement;
(iii) the approval by the CNV of the public offering of the New Notes and the
Grupo Galicia Preferred Shares (as defined below) and the authorization to list
the New Notes (as defined below) in the Cordoba Stock Exchange and the MAE and
the authorization to trade the Grupo Galicia Preferred Shares in the BASE,
Cordoba Stock Exchange and the MAE; and (iv) the ratification by the Bank's
shareholders of this APE Agreement within 30 days of the APE Filing Date.
Section 6.2. No Conflicts. The execution and delivery of this APE Agreement by the Bank does not, and the performance of its obligations hereunder and the consummation of the transactions contemplated hereby will not, conflict with, result in a violation or breach of, any of the terms, conditions and provisions of the certificate or articles of incorporation of bylaws (estatutos) or agreements of the Bank or any applicable laws and regulations. Additionally, as of this date, all acts undertaken by the Bank for the execution and filing of this APE Agreement have been effected in a manner consistent with the statutory rights of any Affected Creditors to be treated equally and ratably.
Section 6.3. Enforceability of the Restructuring Proposal. The Restructuring Proposal and the considerations set forth therein and herein constitute legal, valid and binding obligation of the Bank, enforceable against the Bank in accordance with the terms of the corresponding documentation, except insofar as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
ARTICLE VII
Exhibit A-22
Representations and Warranties by the Participating Creditors.
Section 7.1. Regarding the Restructuring. As of the Court Endorsement Date, each of the Participating Creditor waives any rights that it may have pursuant to Argentine law to (i) challenge the validity of the transactions provided for herein and in the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring and Documentation and the Trade "A" Debt Restructuring Arrangement and Documentation, including the right to claw back ("accion revocatoria") any payment made by the Bank in connection therewith, and (ii) file any action against any director, syndic or senior officer of the Bank ("accion de responsabilidad") in connection with or as a result of any of the aforementioned transactions, except that such action derives from willful misconduct of the director, syndic or senior officer of the Bank or from their violation to the by-laws of the Bank or to any law or regulation. The waivers and/or consents provided herein shall not apply to any acts or omissions of the Bank that constitute a breach of any of the obligations of the Bank under the Notes Exchange Offer, Bank Debt Restructuring Arrangement and Documentation, Trade Finance Debt Restructuring Arrangement and Documentation and Trade "A" Debt Restructuring Arrangement and Documentation.
Section 7.2. Regarding the Removal of Any Injunction on Disposition of the Bank's Assets. Each of the Participating Creditors acknowledges that, by its execution of this APE Agreement, it shall be deemed to have consented to any relief that the Bank may seek to remove or vacate any general injunction on the disposition of the Bank's assets that may have been imposed by the Bankruptcy Court in connection with this APE Agreement during the Pre-Endorsement Period, upon the Court Endorsement and until the date on which the Bankruptcy Court formally declares that the Bank has fully performed its obligations under this APE Agreement in accordance with Section 59 of the Argentine Bankruptcy Law. The waivers and/or consents contained herein shall not apply to any acts or omissions of the Bank that constitute a breach of any of the obligations of the Bank under the Notes Exchange Offer, Bank Debt Restructuring Arrangement and Documentation, Trade Finance Debt Restructuring Arrangement and Documentation and Trade "A" Debt Restructuring Arrangement and Documentation.
Section 7.3. Regarding the New Notes and Grupo Galicia Preferred Shares. Each Participating Creditor acknowledges and agrees and the Bank represents that (i) neither this APE Agreement nor the New Notes and Grupo Galicia Preferred Shares to be delivered by the Bank on the corresponding Settlement Date has been registered under the United States Securities Act 1933, as amended ("Securities Act"), or under any U. S. State securities law, and (ii) any securities issued pursuant to the APE and/or the Restructuring Proposal will be delivered by the Bank, only (a) in the United States, to "qualified institutional buyers" as that term is defined in Rule 144A under the Securities Act, in a private transaction in reliance upon exemption from the registration requirements of the Securities Act and (b) outside the United States in offshore transactions in reliance upon Regulation S under the Securities Act.
Section 7.4. Regarding Ratification of this APE Agreement. Each of the Participating Noteholders does hereby acknowledge that pursuant to its Letter of Transmittal and Authorization it has authorized the Bank to pursue the APE.
Section 7.5. Valid grant of Power of Attorney. Each Participating Noteholder has validly granted the Power of Attorney to the Representative, to take on its behalf the actions therein contemplated.
Section 7.6. Effects of the Notes Exchange, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and Trade "A" Debt Restructuring Arrangement and Documentation. Each
Exhibit A-23
of the Participating Creditors hereby acknowledges that if: (a) the Court Endorsement is not granted, (b) this APE Agreement is subsequently declared null and void or (c) there is an Argentine Central Bank Objection to the APE Procedure, (d) the Bank decides to withdraw the APE Procedure, or (e) this APE Agreement is not implemented, then the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and the Trade "A" Debt Restructuring Arrangement and Documentation shall continue to be valid, binding, definitive and enforceable in accordance with their terms and shall not be affected in any way by this APE Agreement.
Section 7.7. Regarding the Representative. Each Participating Noteholder acknowledges and agrees that the Representative: (a) is acting hereunder solely in its capacity as attorney-in-fact on behalf of each such Participating Noteholder, (b) does not assume any obligation or relationship of trust, for or with such Participating Noteholder, and (c) shall have no duties or obligations other than those specifically set forth herein, and (d) shall act as Representative of the Participating Noteholders under this APE Agreement solely for purposes of receiving and sending notices and instructions hereunder.
Section 7.8. No Solicitation. Each Non-Participating Noteholder shall be deemed to represent and warrant that it has not been solicited in the APE Procedure by Citigroup Global Markets Inc. as dealer manager for the offers and the APE solicitation provided for in the Notes Exchange Offer or by any of its affiliates, provided however, that if such Non-Participating Noteholder cannot make such certification, before such Non-Participating Noteholder can receive the New Notes as a result of the APE Agreement, the Bank shall require such Non-Participating Noteholder return a letter of inquiry certifying that he/she is a person: (1) who is not in the "United States" as contemplated by Rule 903(a)(1) of Regulation S under the Securities Act, and is not a "U.S. person" as defined in Rule 902 (o) of Regulation S under the Securities Act or (2) who is a dealer or other professional fiduciary organized, incorporated or, if an individual, resident in the United States holding a discretionary account or similar account, other than an estate or trust, for the benefit or account of a non "U.S. person". The Bank may require additional representations to comply with the laws of other jurisdictions.
ARTICLE VIII
Termination and Fulfillment.
Section 8.1. Termination of this APE Agreement. This APE Agreement shall terminate upon the earlier of: (a) the date upon which the court of appeals shall have entered a final non-appealable order rejecting the endorsement of this APE Agreement; (b) the date upon which the Bankruptcy Court or the Argentine Central Bank declares the liquidation of the Bank; (c) the Bank shall fail to perform or breach any covenant or agreement contained in this APE Agreement and such failure and default shall continue unremedied for a period of thirty (30) consecutive days after written notice shall have been given to the Bank pursuant to Section 9.4; and (d) any government or governmental authority shall have condemned, nationalized, seized, or otherwise expropriated all or any substantial portion of the assets or property of the Bank, or the share capital of the Bank, or shall have assumed custody or control of such assets or property or of the business or operations of the Bank or the share capital of the Bank, or shall have taken any action that would prevent the Bank or its officers from carrying on its business or operations or a substantial part thereof for a period exceeding sixty (60) consecutive days and the result of any such action shall materially prejudice the ability of the Bank to perform its obligations under this APE Agreement.
The Parties agree that this APE Agreement shall automatically terminate if the Settlement Date does not occur on or prior to the third Judicial Business Day after the APE Filing Date (if the APE Filing Date occurs).
Exhibit A-24
Upon such termination, the Parties hereto shall cease to be bound by the terms hereof, provided however that the effects of the acts and agreements entered pursuant to the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and/or the Trade "A" Debt Restructuring Arrangement and Documentation shall remain in full force and effect and shall be binding upon and inure to the benefit of the Participating Creditors and the Bank.
Section 8.2. Withdrawal or Non-Consummation. The Bank reserves the right to withdraw and terminate this APE Agreement at any time after its execution and prior to the Court Endorsement and, in such case, to file other APE applications. In all cases, the effects of the acts and agreements entered pursuant to the Notes Exchange Offer, the Bank Debt Restructuring arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and the Trade "A" Debt Restructuring Arrangement and Documentation shall remain in full force and effect and shall be binding upon and inure to the benefit of the Participating Creditors and the Bank.
Section 8.3. Fulfillment. This APE Agreement shall be considered as fulfilled, in the event that the Court Endorsement is obtained, upon delivery of the considerations set forth under this APE Agreement to the Non-Participating Creditors and its confirmation by the Bankruptcy Court under Section 59 of the Argentine Bankruptcy Law. Upon such fulfillment, the Parties hereto shall cease to be bound by the terms hereof, provided however that the effects of the acts and agreements entered pursuant to the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and/or the Trade "A" Debt Restructuring Arrangement and Documentation shall remain in full force and effect and shall be binding upon and inure to the benefit of the Participating Creditors and the Bank.
Section 8.4. Enforcement of rights. For the avoidance of doubt, it is hereby understood that the execution of this APE Agreement by or on behalf of the Participating Creditors or the filing of this APE Agreement with the Bankruptcy Court does not constitute a waiver or otherwise an impediment of the ability of the Participating Creditors to enforce any of its rights under the Notes Exchange Offer, the Bank Debt Restructuring Arrangement and Documentation, the Trade Finance Debt Restructuring Arrangement and Documentation, and the Trade "A" Debt Restructuring Arrangement and Documentation or instruments evidencing or related to these documents or under applicable law upon failure by the Bank to comply with any obligation thereunder.
ARTICLE IX
Miscellaneous.
Section 9.1. Indemnification Obligations. Any obligations or rights of the Bank to defend, indemnify, reimburse or limit the liability of its present and former directors, syndics, officers or employees pursuant to the Bank's certificate of incorporation, bylaws, employee indemnification policy, applicable Argentine law or specific agreement in respect of any claims, complaints, suits, causes of action or proceedings against such directors, syndics, officers or employees based on any act or omission related to such present or former directors', syndics', officers' and employees' service with, for, or on behalf of the Bank prior to the date of the filing of this APE Agreement will survive the Court Endorsement and remain unaffected thereby, and will not be discharged, irrespective of whether such defense, indemnification, reimbursement or limitation of liability is owed in connection with an occurrence before or after the date of the Court Endorsement.
Exhibit A-25
Section 9.2. Payment of Administrative Claims. (a) The Affected Creditors acknowledge and agree that during the Pre-Endorsement Period (i) in connection with the execution, delivery and performance of this APE Agreement, the Bank will incur Administrative Claims and (ii) the Bank is entitled to pay such Administrative Claims in accordance with the applicable court resolution, the terms of any agreement relating thereto or on such less favorable terms to the holders of any such Administrative Claim as agreed upon between the Bank and the holders of such Administrative Claim.
Section 9.3. Successors and Assigns. The rights, benefits and obligations of any person or legal entity named or referenced in this APE Agreement shall be binding upon and will inure to the benefit of any heir, successor, transferee or assignee of such person or entity.
Section 9.4. Domiciles. To all effects derived from this APE Agreement, the Parties set up domicile at the addresses specified in the introductory paragraph hereof or under its signature below, where all relevant notices and communications sent will be deemed valid, including judicial and/or extra-judicial notices. Those domiciles will continue to be effective unless otherwise expressly notified in writing by the relevant Party.
Section 9.5. Applicable Law and Jurisdiction. The laws of Argentina will govern all aspects of this APE Agreement, including its required form and content, the application and approval process, and the effect of its approval and final judicial order on the Existing Restructuring Debt. To all judicial effects derived herefrom, the Parties submit to the jurisdiction of the ordinary commercial courts of the City of Buenos Aires, waiving any other venue or jurisdiction that may be applicable.
IN WITNESS WHEREOF_____, identical counterparts are signed to a single effect in the place and date first above written.
Exhibit A-26
Domicile:
Exhibit A-27
LIST OF EXHIBITS
Exhibit I Bank and Representative Documentation.
Exhibit II Description of Existing Notes Debt and Basic Terms and Conditions of the Notes Exchange, Participating Noteholders' Debt and the percentage it accounts of the total debt of the Existing Restructuring Debt. Copy of Offering Memorandum, the Pricing Supplement and the Supplement to the Pricing Supplement.
Exhibit III Description of Existing Bank Debt and Basic Terms and Conditions of the Bank Debt Restructuring Arrangement and Documentation, Existing Bank Debt and the percentage it accounts of the total debt of the Existing Restructuring Debt.
Exhibit IV Description of Existing Trade Finance Debt and Basic Terms and Conditions of the Finance Trade Debt Restructuring Arrangement and Documentation, Trade Finance Debt and the percentage it accounts of the total debt of the Existing Restructuring Debt.
Exhibit V Description of Existing Trade "A" Debt and Basic Terms and Conditions of the Trade "A" Debt Restructuring Arrangement and Documentation, Trade "A" Debt and the percentage it accounts of the total debt of the Existing Restructuring Debt.
Exhibit VI Categories of Unaffected Creditors.
Exhibit A-28
EXHIBIT B
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Note Purchase Agreement dated as of April 27, 2004 (as amended, supplemented or otherwise modified from time to time, the "Note Purchase Agreement"; the terms defined therein, unless otherwise defined herein, being used herein as therein defined) among BANCO DE GALICIA Y BUENOS AIRES S.A., a sociedad anonima organized under the laws of the Republic of Argentina (the "Issuer"), the Holders party thereto from time to time, the Documentation Agent party thereto, and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Agent for the Holders.
Each "Assignor" referred to on Schedule 1 hereto (each, an "Assignor") and each "Assignee" referred to on Schedule 1 hereto (each, an "Assignee") agrees severally with respect to all information relating to it and its assignment hereunder and on Schedule 1 hereto as follows:
(1) Such Assignor hereby sells and assigns, without recourse except as to the representations and warranties made by it herein, to such Assignee, and such Assignee hereby purchases and assumes from such Assignor, an interest in and to such Assignor's rights and obligations under the Note Purchase Agreement as of the date hereof equal to the applicable percentage interest specified on Schedule 1 hereto of the applicable Restructured Dollar Notes under the Note Purchase Agreement. After giving effect to such sale and assignment, such Assignee's Restructured Dollar Notes and the amount of the Restructured Dollar Notes owing to such Assignee will be as set forth on Schedule 1 hereto.
(2) Such Assignor (i) represents and warrants that its name set forth on Schedule 1 hereto is its legal name, that it is the legal and beneficial owner of the interest or interests being assigned by it hereunder and that such interest or interests are free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with any Financing Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or priority of any lien or security interest created or purported to be created under or in connection with, any Financing Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Issuer or the performance or observance by the Issuer of any of its obligations under any Financing Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches the Note or Notes held by such Assignor and requests that the Agent exchange such Note or Notes for a new Note or Notes payable to the order of such Assignee in an amount equal to the Restructured Dollar Notes assumed by such Assignee pursuant hereto or new Notes payable to the order of such Assignee in an amount equal to the Restructured Dollar Notes assumed by such Assignee pursuant hereto and such Assignor in an amount equal to Restructured Dollar Notes retained by such Assignor under the Note Purchase Agreement, respectively, as specified on Schedule 1 hereto.
(3) Such Assignee (i) confirms that it has received a copy of the Note Purchase Agreement, together with copies of the financial statements referred to in Section 4.15 thereof and such other documents and information as it has deemed appropriate to make its own credit
Exhibit B-1
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without reliance upon any Agent, any Assignor or any other Holder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Note Purchase Agreement; (iii) represents and warrants that its name set forth on Schedule 1 hereto is its legal name; (iv) represents and warrants that it is (x) a "Qualified Institutional Buyer as defined in Rule 144A under the Securities Act, and a "Qualified Purchaser," as defined under Section 2(a)(51) of the Investment Company Act of 1940, as amended or (y) an institutional "accredited investor" as defined in Regulation D under the Securities Act or (z) is not a U.S. Person; (v) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers and discretion under the Financing Agreements as are delegated to such Agent by the terms thereof, together with such powers and discretion as are reasonably incidental thereto; (vi) agrees that it will perform in accordance with their terms all of the obligations that by the terms of the Note Purchase Agreement are required to be performed by it as a Holder; and (vii) makes each of the representations and warranties set forth in Section 9.5 of the Note Purchase Agreement.
Each Holder (including any assignee of a Holder) represents, warrants and covenants to the Issuer that such Holder is acquiring the Restructured Dollar Notes owing to it and the Note or Notes held by it for its own account and not with a view to assignment, participation or transfer other than in a manner that will not violate United States securities laws or the securities laws of any other applicable jurisdiction
(4) Following the execution of this Assignment and Acceptance, it will be delivered to the Agent for acceptance and recording by the Agent. The effective date for this Assignment and Acceptance (the "Effective Date") shall be the date of acceptance hereof by the Agent, unless otherwise specified on Schedule 1 hereto.
(5) Upon such acceptance and recording by the Agent, as of the Effective Date, (i) such Assignee shall be a "Holder" pursuant to the Note Purchase Agreement and, to the extent provided in this Assignment and Acceptance, have the rights and obligations of a Holder thereunder and (ii) such Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Note Purchase Agreement (other than its rights and obligations under the Financing Agreements that are specified under the terms of such Financing Agreements to survive the payment in full of the Obligations of the parties under the Financing Agreements to the extent any claim thereunder relates to an event arising prior to the Effective Date of this Assignment and Acceptance) and, if this Assignment and Acceptance covers all of the remaining portion of the rights and obligations of such Assignor under the Note Purchase Agreement, such Assignor shall cease to be a party thereto.
(6) Upon such acceptance and recording by the Agent, from and after the Effective Date, the Agent shall make all payments under the Note Purchase Agreement and the Notes in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to such Assignee. Such Assignor and such Assignee shall make all appropriate adjustments in payments under the Note Purchase Agreement and the Notes for periods prior to the Effective Date directly between themselves.
Exhibit B-2
(7) This Assignment and Acceptance shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflicts of law principles (except for Section 5-1401 and Section 5-1402 of the New York General Obligations Law).
(8) This Assignment and Acceptance may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart hereof by telecopier shall be effective as delivery of an original executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, each Assignor and each Assignee have caused Schedule 1 to this Assignment and Acceptance to be executed by their officers thereunto duly authorized as of the date specified thereon.
ASSIGNOR
_________________________, as Assignor
[Type or print legal name of Assignor]
By:_________________________________________
Title:______________________________________
Dated: _________ __, ____
Exhibit B-3
ASSIGNEE
_________________________, as Assignee
[Type or print legal name of Assignee]
By:_________________________________________
Title:______________________________________
Dated: _________ __, ____
Holder Address:
Acknowledged this ____day of ___________, ____.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Agent
By ______________________________
Title:
Exhibit B-4
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE
ASSIGNOR: LONG-TERM DOLLAR LIBOR NOTES Outstanding principal amount of Long-Term Dollar LIBOR Notes payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Long-Term Dollar LIBOR Notes assigned $ Principal amount of Long-Term Dollar LIBOR Notes payable to Assignor after giving effect to assignment $ LONG-TERM DOLLAR FIXED RATE NOTES Outstanding principal amount of Long-Term Dollar Fixed Rate Notes payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Long-Term Dollar Fixed Rate Notes assigned $ Principal amount of Long-Term Dollar Fixed Rate Notes payable to Assignor after giving effect to assignment $ MEDIUM-TERM DOLLAR LIBOR NOTES Outstanding principal amount of Medium-Term Dollar LIBOR Notes payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Medium-Term Dollar LIBOR Notes assigned $ Principal amount of Medium-Term Dollar LIBOR Notes payable to Assignor after giving effect to assignment $ MEDIUM-TERM DOLLAR FIXED RATE NOTES Outstanding principal amount of Medium-Term Dollar Fixed Rate Notes payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Medium-Term Dollar Fixed Rate Notes assigned $ Principal amount of Medium-Term Dollar Fixed Rate Notes payable to Assignor after giving effect to assignment $ SUBORDINATED DOLLAR LIBOR NOTES |
Exhibit B-5
Outstanding principal amount of Subordinated Dollar LIBOR Notes payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Subordinated Dollar LIBOR Notes assigned $ Principal amount of Subordinated Dollar LIBOR Notes payable to Assignor after giving effect to assignment $ SUBORDINATED DOLLAR FIXED RATE NOTES Outstanding principal amount of Subordinated Dollar Fixed Rate Notes payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Subordinated Dollar Fixed Rate Notes assigned $ Principal amount of Subordinated Dollar Fixed Rate Notes payable to Assignor after giving effect to assignment $ SUBORDINATED DOLLAR LIBOR PIK NOTE Outstanding principal amount of Subordinated Dollar LIBOR PIK Note payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Subordinated Dollar LIBOR PIK Note assigned $ Principal amount of Subordinated Dollar LIBOR PIK Note payable to Assignor after giving effect to assignment $ SUBORDINATED DOLLAR FIXED RATE PIK NOTE Outstanding principal amount of Subordinated Dollar Fixed Rate PIK Note payable to Assignor $ Percentage interest assigned % Outstanding principal amount of Subordinated Dollar Fixed Rate PIK Note assigned $ Principal amount of Subordinated Dollar Fixed Rate PIK Note payable to Assignor after giving effect to assignment $ |
ASSIGNEE: LONG-TERM DOLLAR LIBOR NOTES Percentage interest assumed % Outstanding principal amount of Long-Term Dollar LIBOR Notes assumed $ |
Exhibit B-6
Principal amount of Long-Term Dollar LIBOR Notes payable to Assignee $ LONG-TERM DOLLAR FIXED RATE NOTES Percentage interest assumed % Outstanding principal amount of Long-Term Dollar Fixed Rate Notes assumed $ Principal amount of Long-Term Dollar Fixed Rate Notes payable to Assignee $ MEDIUM-TERM DOLLAR LIBOR NOTES Percentage interest assumed % Outstanding principal amount of Medium-Term Dollar LIBOR Notes assumed $ Principal amount of Medium-Term Dollar LIBOR Notes payable to Assignee $ MEDIUM-TERM DOLLAR FIXED RATE NOTES Percentage interest assumed % Outstanding principal amount of Medium-Term Dollar Fixed Rate Notes assumed $ Principal amount of Medium-Term Dollar Fixed Rate Notes payable to Assignee $ SUBORDINATED DOLLAR LIBOR NOTES Percentage interest assumed % Outstanding principal amount of Subordinated Dollar LIBOR Notes assumed $ Principal amount of Subordinated Dollar LIBOR Notes payable to Assignee $ SUBORDINATED DOLLAR FIXED RATE NOTES Percentage interest assumed % Outstanding principal amount of Subordinated Dollar Fixed Rate Notes assumed $ Principal amount of Subordinated Dollar Fixed Rate Notes payable to Assignee $ SUBORDINATED DOLLAR LIBOR PIK NOTE Percentage interest assumed % Outstanding principal amount of Subordinated Dollar LIBOR PIK Note assumed $ Principal amount of Subordinated Dollar LIBOR PIK Note payable to Assignee $ SUBORDINATED DOLLAR FIXED RATE PIK NOTE Percentage interest assumed % |
Exhibit B-7
Outstanding principal amount of Subordinated Dollar Fixed Rate PIK Note assumed $ Principal amount of Subordinated Dollar Fixed Rate PIK Note payable to Assignee $ |
Exhibit B-8
EXHIBIT C
FORM OF ALLOCATION NOTICE
To the Holders party to the
Note Purchase Agreement referred to below
_________, 200_
RE: BANCO DE GALICIA Y BUENOS AIRES S.A.
NOTE PURCHASE AGREEMENT - ALLOCATIONS
Ladies and Gentlemen:
Reference is made to the Note Purchase Agreement, dated as of April 27, 2004 (the "Note Purchase Agreement"), among Banco de Galicia y Buenos Aires S.A. (the "Issuer"), the holders party thereto from time to time (the "Holders"), Barclays Bank PLC, as Documentation Agent, and Deutsche Bank Trust Company Americas, as Agent (the "Agent"). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Note Purchase Agreement.
This Allocation Notice is delivered pursuant to Section 2.1(d) of the Note Purchase Agreement. The principal amount of each Holder's Long-Term Dollar LIBOR Notes, Long-Term Dollar Fixed Rate Notes, Medium-Term Dollar LIBOR Notes, Medium-Term Dollar Fixed Rate Notes, Subordinated Dollar LIBOR Notes, Subordinated Dollar Fixed Rate Notes, Preferred Shares (or Preferred Shares and the cash equivalent, if any), BODEN Tender Offer Exchange Amounts and Cash Tender Offer Payment Amounts are set forth in the table below.
Enclosed for your reference are the Exchange Agent's allocations of Long-Term Dollar Notes, Medium-Term Dollar Notes, Subordinated Dollar Notes, the Equity Participation Tender Offer, the BODEN Tender Offer and the Cash Tender Offer and calculations of any proration factor, delivered to the Agent by the Issuer pursuant to Section 2.1(c) of the Note Purchase Agreement.
Also enclosed is Schedule 5.1(b)(ii) (Effective Date Interest Amounts) to the Note Purchase Agreement and the Issuer's calculations thereof, delivered to the Agent by the Issuer pursuant to Section 2.1(c) of the Note Purchase Agreement.
Sincerely,
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Agent
By:
Name:
Title:
Enclosures
Exhibit C-1
cc. [_______], Banco de Galicia y Buenos Aires S.A. Priscilla Almodovar, White & Case LLP
Exhibit C-2
NOTE PURCHASE AGREEMENT - ALLOCATIONS
Aggregate Adjusted Principal Amount of Medium- Holder's Existing Long-Term Long-Term Medium-Term Term Dollar Bank Debt Dollar LIBOR Dollar Fixed Dollar LIBOR Fixed Rate Holder Exchanged Notes Rate Notes Notes Notes ------ --------- ----- ---------- ----- ----- US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ BODEN Tender Cash Tender Subordinated Subordinated Offer Offer Dollar LIBOR Dollar Fixed Preferred Exchange Payment Holder Notes Rate Notes Shares Amounts Amounts ------ ----- ---------- ------ ------- ------- US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ US$ |
Exhibit C-3
EXHIBIT D-1
FORM OF ARGENTINE NOTES(1)
PAGARE
US$ [______________]
Buenos Aires, [__] de [______] de 20[____]
Por igual valor recibido, pagaremos incondicionalmente a la vista a [NAME
OF LENDER], sin protesto, NO A LA ORDEN, la cantidad de Dolares Estadounidenses
[_____________] millones (US$[____________]).
En caso de falta de pago a la fecha de presentacion de este Pagare, el monto adeudado bajo el presente devengara un interes punitorio del [_]% ([__] por ciento) anual hasta la fecha del efectivo pago. En caso de mora, los intereses punitorios se capitalizaran mensualmente y seran considerados a partir de dicha capitalizacion como capital a todos los efectos que pudieran corresponder.
Todos los pagos a efectuar en virtud de este pagare seran efectuados indefectiblemente en Dolares Estadounidenses. Renunciamos en forma incondicional e irrevocable a invocar la teoria de la imprevision y onerosidad sobreviniente (Articulo 1198, parrafo segundo, del Codigo Civil de la Republica Argentina), u otras defensas y/o derechos relativos a la imposibilidad de pago en Dolares Estadounidenses (incluyendo caso fortuito y fuerza mayor).
Todos los montos adeudados en virtud del presente Pagare seran pagados libres de, y sin deducciones por, impuestos, tasas, gastos, derechos, y/o retenciones, presente o futuros, de cualquier naturaleza o tipo, sean estos de jurisdiccion nacional o provincial de la Argentina, o impuestos cobrados por cualquier autoridad impositiva de la Argentina. En caso de ser aplicable algun impuesto, tasa, cargo, gasto, derecho y/o retencion de la indole mencionada, este sera pagado exclusivamente por nosotros.
En nuestro caracter de suscriptores, hacemos constar expresamente que ampliamos el plazo de presentacion para el pago de este pagare hasta diez (10) anos a contar desde la fecha.
Renunciamos expresamente e irrevocablemente a oponer la "excepcion de arraigo" prevista en el articulo 348 del C.P.C.C.N.
Este pagare estara sujeto a las leyes de la Republica Argentina, en particular, al Decreto Ley N(0) 5965/63 y, en caso de ejecucion judicial, a los tribunales Ordinarios en lo Comercial de la Ciudad de Buenos Aires. A los efectos de la notificacion de cualquier accion o reclamo iniciado por el tenedor contra el suscriptor con motivo de este Pagare, su validez, interpretacion, cumplimiento y/o incumplimiento por cualquier persona y para cualesquiera otros efectos derivados de este Pagare, por el presente constituimos domicilio en la calle [___________], Ciudad Autonoma de Buenos Aires. En el supuesto que este pagare o cualquiera de sus clausulas
Exhibit D-1-1
no fueren considerados un pagare bajo los terminos del Decreto Ley N(0) 5965/63
o aptas para ser contenidas en un pagare, respectivamente, el pagare o la
clausula en cuestion, segun corresponda, seran considerados como un
reconocimiento de deuda por nosotros con efectos de titulo ejecutivo que trae
aparejada su ejecucion en los terminos de los articulos 520 y 523 del Codigo
Procesal Civil y Comercial de la Nacion a cuyos efectos se procede a certificar
la firma del suscriptor con el fin de otorgarle fecha cierta al presente
instrumento.
Lugar de pago: [ADDRESS OF LENDER].
BANCO DE GALICIA Y BUENOS AIRES S.A.
Por: _________________________________
Nombre:
Cargo:
Exhibit D-1-2
EXHIBIT D-2
FORM OF U.S. NOTES
US$[__________] Dated: _______________
New York, New York
FOR VALUE RECEIVED, the undersigned, BANCO DE GALICIA Y BUENOS AIRES S.A., a sociedad anonima organized under the laws of the Republic of Argentina (the "Issuer"), HEREBY PROMISES TO PAY to the order of [NAME OF HOLDER] or its registered assigns (the "Holder"), the principal amount of US$[_________] pursuant to the terms of that certain the Note Purchase Agreement, dated as of April 27, 2004, among the Issuer, Barclays Bank PLC, as documentation agent, Deutsche Bank Trust Company Americas, as agent, and the noteholders party thereto (as amended, amended and restated, supplemented or otherwise modified from time to time, the "Agreement"). Terms defined in the Agreement, unless otherwise defined herein, are being used herein as therein defined. In the event of any conflict between the terms specified herein and in the Agreement, the terms of the Agreement shall govern.
The Issuer promises to pay interest on the unpaid principal amount of the Holder's [Long-Term Dollar LIBOR Note][Long-Term Dollar Fixed Rate Note][Medium-Term Dollar LIBOR Note][Medium-Term Dollar Fixed Rate Note][Subordinated Dollar LIBOR Note][Subordinated Dollar Fixed Rate Note][Subordinated Dollar PIK LIBOR Note][Subordinated Dollar PIK Fixed Rate Note] from the date of such [Long-Term Dollar LIBOR Note][Long-Term Dollar Fixed Rate Note][Medium-Term Dollar LIBOR Note][Medium-Term Dollar Fixed Rate Note][Subordinated Dollar LIBOR Note][Subordinated Dollar Fixed Rate Note][Subordinated Dollar PIK LIBOR Note][Subordinated Dollar PIK Fixed Rate Note] until such principal amount is paid in full, at such interest rates, and payable at such times, as are specified in the Agreement.
Both principal and interest are payable in lawful money of the United States of America to Deutsche Bank Trust Company Americas, as Agent, at the Agent's Account in same day funds.
This U.S. Note is one of the U.S. Notes referred to in, and is entitled to the benefits of, the Agreement. The Agreement, among other things contains provisions for acceleration of the maturity hereof upon the happening of certain stated events and also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and conditions therein specified.
The Issuer waives diligence, presentment, protest, demand and notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder that is made in accordance with the terms of the Agreement.
This U.S. Note shall be governed by, and construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the Issuer has caused this U.S. Note to be duly executed and delivered as of the date and year first above written.
Exhibit D-2-1
BANCO DE GALICIA Y BUENOS AIRES S.A.
By: ____________________________________
Name:
Title:
Exhibit D-2-2
EXHIBIT E
ELECTION BALLOT
Banco de Galicia y Buenos Aires S.A. Barclays Bank PLC, as Docum entation Agent
Tte, Gral. J.D. Peron 407 Piso 2 200 Park Avenue Buenos Aires, Argentina (1038) New York, NY 10166 Attention: Maria Justo +1(212) 412-3980 (Direct) Ladies and Gentlemen: +1(212) 412-4000 (Switchboard) +1(212) 412-5660 or 5661 (Fax) maria.justo@barcap.com |
This Election Ballot is delivered by the undersigned lender in connection with the bank debt restructuring of Banco de Galicia y Buenos Aires S.A. (the "Borrower") as outlined in the Summary of Terms and Conditions of Proposed Restructuring Transactions, dated March 9, 2004 (the "Term Sheet"). As part of its bank debt restructuring, the Borrower is offering to exchange the outstanding principal amount of its existing bank debt listed below for the Par Package, which at a lender's election may be exchanged for any one or more of Cash Tender Offer, BODEN Tender Offer, Long Term Instrument Tender Offer, Equity Participation Tender Offer and New Money Option, as set forth below. Capitalized terms used here in that are not otherwise defined shall have the meaning assigned to such terms in the Term Sheet.
I - Aggregate Principal Amount of lender's existing debt elected to be exchanged for Par Package in the INITIAL EXCHANGE: US$___________*
Please indicate which loan facility the lender's existing debt is issued under:
Assigned participation of IFC Loan Agreement ......................... US$_____________ Assigned participation of IIC Loan Agreement ......................... US$_____________ CCC Export Guarantee Program ......................................... US$_____________ Santander Central Hispano/MIGA facilities ............................ US$_____________ Bank of America lead Commercial Paper Program ........................ US$_____________ JP Morgan lead commercial Paper Program .............................. US$_____________ Other: (Describe_____________________) ............................... US$_____________ |
* THE PRINCIPAL AMOUNT WILL BE INCREASED BY ACCRUED AND UNPAID INTEREST, CALCULATED AT 4.75% PER ANNUM, FROM MAY 1, 2002 THROUGH DECEMBER 31, 2003. THE DOCUMENTATION AGENT WILL ASSUME THAT SUCH ACCRUED AND UNPAID INTEREST WILL BE TENDERED IN THE SAME PROPORTIONS AS THE PRINCIPAL AMOUNT OF OUTSTANDING DEBT.
II - If you are electing to participate in the SIMULTANEOUS EXCHANGE, indicate aggregate principal amount of existing debt elected to be exchanged for any one or more of the various options. The dollar amounts should equal in the aggregate, the dollar amount tendered in the initial Exchange and indicated in Section I above. If you are electing to participate in the ALTERNATIVE SIMULTANEOUS EXCHANGE, fill in the percentages of the various options that you wish to receive if your choice(s) under the Simultaneous Exchange are oversubscribed. The percentages you fill in should add up to 100%. PLEASE NOTE THAT ANY AMOUNT NOT ACCEPTED FOR EXCHANGE INTO THE OPTION OF YOUR CHOICE BECAUSE SUCH OPTION IS OR BECOMES OVERSUBSCRIBED WILL BE EXCHANGED FOR PAR PACKAGE.
SIMULTANEOUS EXCHANGE ALTERNATIVE SIMULTANEOUS EXCHANGE -------------------------------------------------------- -------------------------------------------------------------- AMOUNT ELECTED TO BE EXCHANGED FOR: AMOUNT ELECTED TO BE EXCHANGED FOR: LONG CASH BODEN TERM EQUITY NEW TENDER TENDER INSTRUMENT PARTICIPATION MONEY OFFER OFFER TENDER OFFER TENDER OFFER OPTION CASH TENDER OFFER US$________________ X _______% _______% _______% _______% BODEN TENDER OFFER US$________________ _______% X _______% _______% _______% LONG TERM INSTRUMENT TENDER OFFER US$________________ _______% _______% X _______% _______% EQUITY PARTICIPATION TENDER OFFER US$________________ _______% _______% _______% X _______% NEW MONEY OPTION US$________________ _______% _______% _______% _______% X |
III - Indicate type of instruments you would like to receive: [ ] BONDS UNDER AN INDENTURE [ ] NOTE UNDER A LOAN-STYLE AGREEMENT |
If you elected to receive your New Instruments IN THE FORM OF BONDS UNDER AN INDENTURE, complete the following for purposes of delivery of the New Instruments:
Euroclear/Clearstream Account Number:_______________ Custodial Bank Name:________________________________ Custodial Bank Contact Person:__________ Custodial Bank Contact Telephone Number:____________ Email Address:__________________________ |
Exhibit E-1
If you elected to receive your New Instruments IN THE FORM OF NOTES UNDER A LOAN-STYLE AGREEMENT, indicate the interest rate election for all of your instruments to be received:
LONG TERM INSTRUMENT [ ] FLOATING RATE [ ] FIXED RATE MEDIUM TERM INSTRUMENT [ ] FLOATING RATE [ ] FIXED RATE SUBORDINATED INSTRUMENT [ ] FLOATING RATE [ ] FIXED RATE |
IV - If you elected the NEW MONEY OPTION, indicate the type of trade financing to provide:
[ ] LETTER OF CREDIT [ ] ADVANCES FOR TRADE LINES [ ] BOTH
V - If you elected to receive your New Instruments IN THE FORM OF BONDS UNDER AN INDENTURE of if you elected to participate in the EQUITY PARTICIPATION TENDER OFFER, you must certify whether you are:
[ ] a "qualified institutional buyer" as that term is defined in Rule 144A under the Securities Act (a QIB);*
[ ] not in the United States (as contemplated in Rule 903(a)(1) of Regulation S under the Securities Act) and are not a U.S. person (as defined in Rule 902(o) of Regulation S under the Securities Act) (each a "Regulation S investor"), or
[ ] a dealer or other professional fiduciary organized, incorporated, or (if an individual) resident in the United States holding a discretionary account or similar account (other than an estate or trust) for the benefit or account of a non-U.S. person (as contemplated by Rule 903(a)(1) or Regulation S under the Securities Act) (each a "Regulation S investor").
*IF YOU ARE A QIB THAT ELECTED TO PARTICIPATE IN THE EQUITY PARTICIPATION TENDER OFFER, YOU MUST EXECUTE AND DELIVER TO GRUPO GALICICA IN INVESTOR LETTER WHICH MAY BE OBTAINED FROM THE DOCUMENTATION AGENT, AND WHICH SETS FORTH CERTAIN ADDITIONAL REPRESENTATIONS, RESTRICTIONS AND PROCEDURES REGARDING THE TRANSFER OF ANY PREFERRED SHARES HELD BY YOU. YOU WILL RECEIVE "RESTRICTED" PREFERRED SHARES, WHICH WILL BE DELIVERED IN DEFINITIVE FORM ONLY IN THE NAME AND TO THE ADDRESS YOU INDICATE TO THE DOCUMENTATION AGENT.
VI - If you elected to participate in the EQUITY PARTICIPATION TENDER OFFER, you hereby acknowledge that the Borrower shall; (1) transfer Subordinated Instruments that would otherwise be delivered to you as part of the Par Package to the trust (the "Trust") established pursuant to a trust agreement, to be entered into on or prior to the Expiration Date, between First Trust of New York, N.A., Argentine Parmanent Representation acting solely as trustee (the "Trustee"), and the Borrower, as settlor, in order that the Trustee (1) subscribes the Preferred Shares pursuant to an assignment agreement to be entered into on or prior to the Expiration Date, among the Trustee, EBA Holding S. A. and other shareholders of Grupo Galicia, and to a subscription agreement to be entered into on or prior to the Expiration Date, between the Trustee and Grupo Galicia, and (2) transfers the relevant Preferred Shares to you as beneficiary of the Trust, and (ii) sell to Grupo Galicia the remaining Subordinated Instruments that would be delivered to you as part of the Par Package, at no more than US$ 0.73 per Subordinated Instrument, pursuant to the terms of a purchase agreement, to be entered into on or prior to the Expiration Date, between the Borrower and Grupo Galicia, and transfer such cash to you in exchange for the Preferred Shares you would otherwise have received.
VII - By submitting the Election Ballot, and subject to and effective upon delivery by the Borrower of the New Instruments, cash, BODEN and Preferred Shares, as the case may be, in the Bank Exchange in exchange for the Restructured Debt tendered herewith, except as set forth in the loan agreement or note purchase agreement relating to the New Instruments, you hereby:
(i) irrevocably sell, assign and transfer to or upon the Borrower's order or the order of its nominee, all right, title and interest in and to, and any and all claims in respect of or arising or having arisen as a result of your status as a holder of, all Restructured Debt tendered hereby, such that hereafter you shall have no contractual or other rights or claims in law or equity against the Borrower or any fiduciary, trustee, agent or other person connected with the Restructured Debt arising under, from or in connection with such Restructured Debt;
(ii) waive any and all rights with respect to the Restructured Debt tendered hereby (including, without limitation, any existing, past or continuing defaults and their consequences in respect of such Restructured Debt); and
(iii) release and discharge the Borrower, its affiliates and the agents under any existing loan facility of the Borrower, and any agents of the new loand facilities or note purchase facilities pursuant to which the New Instruments will be delivered, from any and all claims you may have, now or in the future, arising out of or related to the Restructured Debt tendered hereby, including, without limitation, any claims that you are entitled to receive any accrued interest or any other payment with respect to the existing debt tendered hereby or to participate in any redemption or defeasance of the Restructured Debt tendered hereby.
VIII - Please indicate if you vote in favor of the APE: [ ] In favor of APE [ ] Not in favor of APE |
If you vote in favor of the APE, please return to the Documentation Agent the signature page to the APE with this Election Ballot.
_______________________________, 2004
The Documentation Agent will determine, in its sole discretion, all questions as to the validity, form, eligibility (including the time of receipt), assignment and acceptance of any Election Ballot and its determination shall be final and binding on all parties. The Documentation Agent reserves the absolute right to reject any and all tenders of Restructured Debt via Election Ballot determined by it not to be in the proper form of the acceptance of or payment for which may be unlawful. No tender of Restructured Debt will be deemed to have been validly made until all defects and irregularities have been cured or waived. Unless wanted, all defects or irregularities in connection with tenders must be cured within such time as the Documentation Agent shall determine. Upon notice from the Documentation Agent (which may be delivered by telephone, fax, letter or email), the Participating Creditor shall have one business day to respond to such notice. Silence may be interpreted by the Documentation Agent as a grant or power to the Documentation Agent to, in its sole discretion, determine the reasonable response to the notice. The Documentation Agent is not obligated to give notice of defects or irregularities in tenders, nor shall the Documentation Agent incur any liability for failure to give or for delay in giving any such notice.
_____________________________________, as Lender
(Name of Lender)
By ____________________________________________________
Name:
Title:
By ____________________________________________________
Name:
Title:
Exhibit E-2
EXHIBIT F
FORM OF CLOSING CERTIFICATE
OFFICER'S CERTIFICATE
I, [_______________], the [________________] of Banco de Galicia y Buenos Aires S.A., a sociedad anonima organized under the laws of the Republic of Argentina (the "Company"), do hereby certify on behalf of the Company that:
1. This Certificate is furnished pursuant to (i) the Amended and Restated Long-Term Loan Agreement, dated as of April 27, 2004 between the Company and the International Finance Corporation ("IFC") (the "IFC Long-Term Loan Agreement"), (ii) the Amended and Restated Medium-Term Loan Agreement, dated as of April 27, 2004 between the Company and IFC (the "IFC Medium-Term Loan Agreement"), (iii) the Amended and Restated Subordinated Loan Agreement, dated as of April 27, 2004 between the Company and IFC (the "IFC Subordinated Loan Agreement"), (iv) the Amended and Restated Long-Term Loan Agreement, dated as of April 27, 2004 between the Company and the Inter-American Investment Corporation ("IIC") (the "IIC Long-Term Loan Agreement"), (v) the Amended and Restated Medium-Term Loan Agreement, dated as of April 27, 2004 between the Company and IIC (the "IIC Medium-Term Loan Agreement"), (vi) the Amended and Restated Subordinated Loan Agreement, dated as of April 27, 2004 between the Company and IIC (the "IIC Subordinated Loan Agreement"), (vii) the Note Purchase Agreement, dated as of April 27, 2004 among the Company, Barclays Bank PLC, as documentation agent ("NPA Documentation Agent"), Deutsche Bank Trust Company Americas, as agent ("NPA Agent"), and the noteholders party thereto (the "Note Purchase Agreement"), (viii) the Dollar Loan Agreement, dated as of April 27, 2004 between the Company and the Commodity Credit Corporation, as initial sole lender and agent ("CCC") (the "CCC Loan Agreement"), and (ix) the Trade Credit Agreement dated as of April 27, 2004, by and among the Company, Barclays Bank PLC, as documentation agent ("TCA Documentation Agent"), Deutsche Bank Trust Company Americas, as agent ("TCA Agent"), the issuing bank party thereto and the lenders party thereto (the "Trade Credit Agreement", and collectively with the IFC Long-Term Agreement, the IFC Medium-Term Agreement, the IFC Subordinated Loan Agreement, the IIC Long-Term Agreement, the IIC Medium-Term Agreement, the IIC Subordinated Loan Agreement, the Note Purchase Agreement and the CCC Loan Agreement, the "Agreements"). Unless otherwise defined herein, capitalized terms used in this Certificate shall have the respective meanings set forth in the Agreements.
2. A true and complete copy of the Charter of the Company, together with all amendments to date, certified by the Inspeccion General de Justicia, is attached hereto as Exhibit A. The Charter is in full force and effect on this date. No action has been taken by the board of directors of the Company or, to my knowledge, the stockholders of the Company for the purpose of effecting any further amendment to or modification of such Charter.
Exhibit F-1
3. True and correct copies of resolutions duly adopted by the board of directors of the Company on [_______], 2004, at meetings at which a quorum was present and acting throughout, are attached hereto as Exhibit B (the "Resolutions"). Such Resolutions constitute the only actions taken by the Company's board of directors or any committee thereof relating to the execution, delivery or performance of the Agreements and any other Transaction Documents, have not been amended, modified or rescinded and are in full force and effect on the date hereof.
4. On or prior to the date hereof, the Company has obtained, and provided to the IFC, IIC, the NPA Documentation Agent, the NPA Agent, CCC, the TCA Documentation Agent and the TCA Agent copies of all Authorizations required in connection with the execution, delivery and performance of each of the Financing Agreements (with respect to each Agreement) (except Authorizations from the Central Bank that may become necessary for the Company to make prepayments in accordance with the provisions of the Agreements).
5. On the date hereof, the Company, and each of its Subsidiaries,
(i) are not engaged in, nor, to the best of their knowledge, after due inquiry
threatened by, any litigation, arbitration or administrative proceedings, the
outcome of which has had or could reasonably be expected to have a Material
Adverse Effect; (ii) have not requested a moratorium or suspension of payment of
debts from any court; (iii) have not instituted proceedings or taken any form of
corporate action to be liquidated, adjudicated bankrupt or insolvent; (iv) have
not consented to the institution of bankruptcy or insolvency proceedings against
it; (v) have not filed a petition or answer or consent seeking reorganization or
relief under any Applicable Law or consented to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of them or of any substantial part of their
respective property; and (vi) have not made a general assignment for the benefit
of their respective creditors.
6. On the date hereof, (i) there is not in effect any statute, regulation, order, decree or judgment of any Authority that makes illegal or enjoins or prevents the consummation of the transactions contemplated by the Agreements or any other Transaction Document and (ii) no action or proceeding has been commenced or, to the best knowledge of the Company, threatened, that seeks to prevent or enjoin any transactions contemplated by the Agreements or any other Transaction Document.
7. On the date hereof, the representations and warranties of the Company set forth in the Agreements are true and correct with the same effect as though such representations and warranties had been made on and as of the date hereof.
8. On the date hereof, no Event of Default and no Potential Event of Default has occurred and is continuing except for those that may occur if the restructuring contemplated by the Agreements, or in any other Transaction Document, does not become effective in accordance with the terms and conditions set forth in the respective Transaction Documents.
9. On the date hereof, the exchange contemplated in the Bond Exchange Offer has been completed.
Exhibit F-2
10. On the date hereof, the Company's assets and business operations have been insured in accordance with the Agreements.
11. The Effective Date of each of the Agreements is the date hereof.
Exhibit F-3
IN WITNESS WHEREOF, I have hereunto signed my name as of this ____ day of May, 2004.
BANCO DE GALICIA Y BUENOS AIRES S.A.
By: _____________________________
Name: _____________________________
Title: _____________________________
I, _____________________________, do hereby certify that:
1. I am the duly elected, qualified and acting _____________________________ of the Company.
2. _____________________________ is the duly elected, qualified and acting _____________________________ of the Company, and the signature appearing above is such person's true and genuine signature.
In Witness Whereof, I have hereunto signed my name as of this ___ day of May, 2004.
BANCO DE GALICIA Y BUENOS AIRES S.A.
By: ____________________________
Name: ____________________________
Title: ____________________________
Exhibit F-4
EXHIBIT G
FORM OF CERTIFICATE OF INCUMBENCY AND AUTHORITY
Deutsche Bank Trust Company Americas
Attn.: Dorothy Robinson
60 Wall Street
New York, NY 10005
Officers' Certificate
Dear Sirs,
With reference to the Note Purchase Agreement among us, Barclays
Bank PLC, as documentation agent ("Documentation Agent"), Deutsche Bank Trust
Company Americas, as agent ("Agent"), and the holders party thereto ("Holders"),
dated as of April 27, 2004 (the "Note Purchase Agreement"), I, the undersigned
[Chairman/Director/Senior Executive Vice President] of Banco de Galicia y Buenos
Aires S.A. (the "Company"), duly authorized to do so, hereby certify that the
following are the names, offices and true specimen signatures of the persons
[each] [any two] of whom are, and will continue to be, authorized:
(a) to sign any certification provided for in the Note Purchase Agreement and other agreement or document in connection therewith or in relation thereto; and
(b) to take any other action required or permitted to be taken, done, signed or executed under the Note Purchase Agreement or any other agreement or document to which any of the Documentation Agent, the Agent and any of the Holders and the Company may be parties.
*Name Office Specimen Signature ---- ------ ------------------ --------------------- -------------------- ----------------------- --------------------- -------------------- ----------------------- --------------------- -------------------- ----------------------- --------------------- -------------------- ----------------------- |
Exhibit G-1
You may assume that any such person continues to be so authorized until you receive authorized written notice from the Company that they, or any of them, is no longer so authorized.
Yours truly,
BANCO DE GALICIA Y BUENOS AIRES S.A.
By ______________________________________________
[Chairman/Director/Senior Executive Vice
President]
Exhibit G-2
EXHIBIT H
FORM OF PROCESS AGENT LETTER
[CT Corp Letterhead]
April 27, 2004
Banco de Galicia y Buenos Aires S.A.
Tte. Gral. Juan D. Peron 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Argentina
Re: BANCO DE GALICIA Y BUENOS AIRES S.A.
Gentlemen:
Reference is made to (a) the Note Purchase Agreement (the "Note Purchase Agreement"), dated April 27, 2004 among Banco de Galicia y Buenos Aires S.A. (the "Issuer"), Barclays Bank PLC, as Documentation Agent and Deutsche Bank Trust Company Americas, as Agent and (b) the Notes issued pursuant to the Note Purchase Agreement (the "Notes") (collectively, the "Financing Agreements").
Pursuant to Section 9.10 of the Agreement, "the Issuer hereby irrevocably appoints CT Corporation System (the "Process Agent") with an office on the date hereof at 111 Eighth Avenue, New York, New York 10011, United States, as its agent to receive on behalf of the Issuer and its property service of copies of the summons and complaint and any other process which may be served in any such action or proceeding arising out of or relating to this Agreement or any other Financing Agreement governed by New York law. Such service may be made by mailing or delivering a copy of such process to the Issuer in care of the Process Agent at the Process Agent's above address, and the Issuer hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf."
The Process Agent hereby accepts such irrevocable appointment as agent and agrees that it (i) shall maintain an office in the City of New York and shall inform the Issuer promptly in writing of any change of its address in the City of New York (such address presently being 111 Eighth Avenue, New York, New York 10011), (ii) shall perform its obligations as agent in accordance with the applicable provisions of the Note Purchase Agreement, (iii) shall forward promptly, by courier, to the Issuer, at its address set forth in the attachment hereto, a copy of any legal process, summons, notice or document received by the Process Agent in its capacity as agent of the Issuer, and (iv) shall not terminate its agency under the Note Purchase Agreement until January 1, 2020, or if all of the obligations of the Issuer under the Note Purchase Agreement have been satisfied prior to January 1, 2020, one calendar year after such obligations have been satisfied.
By its acceptance hereof, the Process Agent and its successors agree to discharge the above-mentioned obligations and will not refuse fulfillment of such obligations under the Note Purchase Agreement and under this letter agreement.
CT CORPORATION SYSTEM
By:_________________________________
Name:
Title:
Exhibit H-1
SCHEDULE TO GALICIA PROCESS AGENT LETTER
Address for notices:
BANCO DE GALICIA Y BUENOS AIRES S.A.
Tte. General Juan D. Peron 407, 2 degrees Piso
(C1038AAI) Buenos Aires
Republic of Argentina
Facsimile: (+54 11) 3329-6429 Attention: Carlos Lopez
with a copy to:
WHITE & CASE LLP
1155 Avenue of the Americas
New York, NY 10036
Facsimile: (+1 212) 354-8113
Attention: Priscilla Almodovar
Exhibit H-2
EXHIBIT I
FORM OF AUDITOR AUTHORIZATION
[BANCO DE GALICIA'S LETTERHEAD]
[NAME OF AUDITING COMPANY]
[ADDRESS]
Dear [SHORT NAME OF AUDITING COMPANY],
Relating to [SHORT NAME OF AUDITING COMPANY]'s auditing of Banco de Galicia y Buenos Aires S.A. ("Client"), the Client authorizes [SHORT NAME OF AUDITING COMPANY] ("Auditors"), to meet and communicate directly upon the written request of any representative of the International Finance Corporation, the Inter-American Investment Corporation, the Commodity Credit Corporation, the Agent under the Trade Credit Agreement, dated April 27, 2004 or the Agent under the Note Purchase Agreement, dated April 27, 2004 ("Recipients"), regarding the Client's accounts, operations, affairs and finances; provided, however, that we are given prior written notice of, and are entitled to participate in, any meetings or oral communication between the Auditors, on the one hand, and any officer or representative of the Recipients on the other. The Client acknowledges and agrees that it acquires no new rights against the Auditors as a result of the Recipients' review.
Regarding the Auditors' cooperation, neither the Auditors, its affiliated firms nor any of the Auditors' nor such affiliated firms' respective directors, officers, managers, partners, participating principals, national directors, employees, representatives or similar persons will have any liability of any kind, and shall have no liability for any consequential, special, incidental or exemplary damages; the foregoing shall apply regardless of the theory of relief asserted (including negligence of the Auditors or others) and even if the Auditors is advised of the possibility of such damage or loss.
Client also acknowledges that it (and not the Auditors) is solely responsible for determining the applicability of any tax advisor privilege, attorney-client privilege or other privilege or similar rule (e.g., the work product rules) to the above-mentioned information and for otherwise managing the establishment and maintenance of any such privilege or protection and for considering possible waiver thereof (and for involving legal counsel as necessary). The Client further acknowledges that the Auditors reserves the right to withhold from disclosure any information that the Auditors in its discretion determines is proprietary or confidential to the Auditors.
Very truly yours,
Banco de Galicia y Buenos Aires S.A. "Client"
By: ____________________________________________________
(Authorized Officer)
________________________________________________________ Title Date Exhibit I-1 |
Acknowledged and Agreed: [NAME OF AUDITING COMPANY] By: __________________________ Name: Title: Exhibit I-2 |
Exhibit 12.1
CERTIFICATION
I, Antonio Garces, certify that:
1. I have reviewed this annual report on Form 20-F of Grupo Financiero Galicia S.A.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting; and
5. The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditors and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
Date: July 13, 2004 /s/ Antonio Garces ----------------------- Antonio Garces Chief Executive Officer (principal executive officer) |
Exhibit 12.2
CERTIFICATION
I, Pedro A. Richards, certify that:
1. I have reviewed this annual report on Form 20-F of Grupo Financiero Galicia S.A.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4. The company's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the company and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Evaluated the effectiveness of the company's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(c) Disclosed in this report any change in the company's internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company's internal control over financial reporting; and
5. The company's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company's auditors and the audit committee of the company's board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company's ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the company's internal control over financial reporting.
Date: July 13, 2004 /s/ Pedro A. Richards ----------------------- Pedro A. Richards Chief Financial Officer (principal financial officer) |
Exhibit 13.1
CERTIFICATION
(pursuant to 18 U.S.C Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002)
In connection with the Annual Report on Form 20-F for the fiscal year ended December 31, 2003, of Grupo Financiero Galicia S.A. (the "Company") as filed with the U.S. Securities and Exchange Commission (the "Commission") on the date hereof (the "Report") and pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Antonio Garces, Chief Executive Officer of the Company, certify, that:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: July 13, 2004 /s/ Antonio Garces ----------------------- Antonio Garces Chief Executive Officer |
A signed original of this written statement required by Section 906 has been provided to Grupo Financiero Galicia S.A. and will be retained by Grupo Financiero Galicia S.A. and furnished to the Commission or its staff upon request.
Exhibit 13.2
CERTIFICATION
(pursuant to 18 U.S.C Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002)
In connection with the Annual Report on Form 20-F for the fiscal year ended December 31, 2003, of Grupo Financiero Galicia S.A. (the "Company") as filed with the U.S. Securities and Exchange Commission (the "Commission") on the date hereof (the "Report") and pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, I, Pedro Richards, Chief Financial Officer of the Company, certify, that:
(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
Date: July 13, 2004 /s/ Pedro Richards ----------------------- Pedro Richards Chief Financial Officer |
A signed original of this written statement required by Section 906 has been provided to Grupo Financiero Galicia S.A. and will be retained by Grupo Financiero Galicia S.A. and furnished to the Commission or its staff upon request.
Exhibit 99.1
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of May 18, 2004 of Grupo Financiero Galicia S.A., an Argentine corporation (the "Company") for the benefit of the Holders (as defined below). In order to induce the creditors to participate in the debt restructuring (the "Restructuring") of Banco de Galicia y Buenos Aires S.A., a subsidiary of the Company, the Company has agreed for the benefit of the Holders to provide the registration rights set forth in this Agreement.
The Company agrees that for the benefit of the beneficial owners from time to time of the Preferred Shares (as defined herein) and any securities into or for which such Preferred Shares has been converted or exchanged, and the beneficial owners from time to time thereof (each of the foregoing a "Holder" and together the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without definition shall have their respective meanings set forth in the Pricing Supplement. As used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means with respect to any specified person, an "affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close.
"Common Stock" means the ordinary "B" shares of the Company, with Ps. 1.00 par value per share.
"Company" has the meaning set forth in the first paragraph hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the Effectiveness Deadline Date and ending on September 30, 2005.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Holder" has the meaning set forth in the second paragraph of this Agreement.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the date the preferred shares of the Company are issued to the Holders, which preferred shares are automatically convertible into the Common Stock, on the first anniversary of the Issue Date.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notice and Questionnaire" means a written notice delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire distributed by the Company to the Holders prior to the Effectiveness Deadline Date.
"Notice Holder" means, on any date, any Holder that has delivered a Notice and Questionnaire to the Company on or prior to such date.
"Preferred Shares" means preferred shares of the Company which are held by persons other than Regulation S investors (as defined in the Pricing Supplement) issued pursuant to the equity prospectus dated April 26, 2004 which will be automatically converted into Common Stock on the first (1st) anniversary date of their issuance or, if earlier, on the occurrence of a change of control of the Company.
"Pricing Supplement" means the pricing supplement, dated December 23, 2003, as supplemented on March 18, 2004 and April 6, 2004, relating to the Restructuring.
"Prospectus" means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any amendment or prospectus supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means the Common Stock resulting from conversion of the Preferred Shares pursuant to the terms thereof and any securities into or for which such Common Stock has been converted or exchanged, and any security issued with respect thereto upon any stock dividend, split or similar event until, in the case of any such security, (A) the earliest of (i) such Common Stock's effective registration under the Securities Act and resale in accordance with the Registration Statement covering it, (ii) two years from the effectiveness of the Initial Shelf Registration Statement or (iii) the time at which Rule 144 (or any similar provision then in force, but not Rule 144A) becomes available for the Holder to immediately freely resell under the Securities Act without restriction all Registrable Securities held by it, and (B) as a result of the event or circumstance described in any of the foregoing clauses (i) through (iii), the legend with respect to transfer restrictions described in the Pricing Supplement is removed or removable in accordance with the terms of such legend.
"Registration Statement" means any registration statement of the Company that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such registration statement.
"Restricted Securities" means "restricted securities" as defined in Rule 144.
"Restructuring" has the meaning set forth in the first paragraph hereof.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.
"Special Counsel" means Mayer, Brown, Rowe & Maw LLP or one such
other successor counsel as shall be specified by the Holders of a majority of
the Registrable Securities, but which may be another nationally recognized law
firm experienced in securities law matters designated by the Company that is
approved by the Holders of a majority of the Registrable Securities, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in Section 2(b) hereof.
SECTION 2. Shelf Registration. (a) The Company shall prepare and file or cause to be prepared and filed with the SEC, not later than the date (the "Filing Deadline Date") that is one hundred eighty (180) days after the Issue Date, a Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by Holders thereof of all of the Registrable Securities (the "Initial Shelf Registration Statement") permitted under applicable law to be registered thereon. The Initial Shelf Registration Statement shall be on Form F-1 or another appropriate form permitting registration of such Registrable Securities for resale by such Holders in accordance with the methods of distribution elected by the Holders and set forth in the Initial Shelf Registration Statement and will use its reasonable best efforts to cause such registration statement as amended to become effective under the Securities Act as promptly as is reasonably practicable thereafter; provided, however, that if the Company files the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement on Form F-1 and subsequently becomes eligible to use Form F-3, it will file a post-effective amendment to such Form F-1 on Form F-3 prior to the end of the fiscal year in which it becomes eligible to use such Form F-3. The Company shall use its reasonable best efforts to cause the Initial Shelf Registration Statement to be declared effective under the Securities Act by no later than June 1, 2005 (the "Effectiveness Deadline Date"), and to keep the Initial Shelf Registration Statement (or any Subsequent Shelf Registration Statement (as defined below)) continuously effective under the Securities Act until the expiration of the Effectiveness Period. At the time the Initial Shelf Registration Statement is declared effective, each Holder that is a Notice Holder or its nominee, as applicable, shall be named as a selling security holder in the Initial Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable law. None of the Company's security holders (other than the Holders of Registrable Securities) shall have the right to include any of the Company's securities in the Initial Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), the Company shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) Business Days of such cessation of effectiveness amend the Initial Shelf Registration Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, and file an additional registration statement covering all of the securities that as of the date of such filing are Registrable Securities (a "Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration Statement is filed, the Company shall use its reasonable best efforts to cause the Subsequent Shelf Registration Statement to become effective as promptly as is reasonably practicable after such filing and to keep such Registration Statement (or Subsequent Shelf Registration Statement) continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend (including by means of a post-effective amendment) a Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Registration Statement, if required by the Securities Act or Exchange Act or as necessary to name a Notice Holder as a selling security holder pursuant to Section (d) below.
(d) Each Holder agrees that if such Holder wishes to sell Registrable Securities pursuant to a Registration Statement and related Prospectus, it will do so only in accordance with this Agreement. Following the date that the Initial Shelf Registration Statement is declared effective, each Holder wishing to sell Registrable Securities pursuant to a Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire pursuant to Section 4, which Notice and Questionnaire shall be provided to Holders at least fifteen (15) days prior to the effective date of the Initial Shelf Registration Statement and any Subsequent Shelf Registration Statement, unless a Notice and Questionnaire has previously been delivered to the Company. From and after the date the Initial Shelf Registration Statement is declared effective, the Company shall, as promptly as practicable after the date a Notice and Questionnaire is delivered pursuant to Section 8(c), and in any event upon the later of (x) five (5) Business Days after such date or (y) five (5) Business Days after the expiration of any Deferral Period in effect when the Notice and Questionnaire is delivered or put into effect:
(i) if required by applicable law, file with the SEC a post-effective amendment to a Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling security holder in the applicable Registration Statement and the related Prospectus in such a manner as to permit such Notice Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with
applicable law and, if the Company shall file a post-effective amendment to the Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act within thirty days after the filing of the post-effective amendment, (the "Amendment Effectiveness Deadline Date");
(ii) promptly following the Amendment Effectiveness Deadline, provide such Holder copies of any Prospectus or supplement or amendment thereto filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall, to the extent required, take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(h). Notwithstanding anything contained herein to the contrary, if a Deferral Period shall be in effect on the Amendment Effectiveness Deadline Date (i) the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling security holder in any Registration Statement or related Prospectus until the expiration of the relevant time period specified in Section 2(d), provided, however, that the Company shall use its reasonable best efforts to name such Holder as a selling security holder as soon as is otherwise practicable and (ii) the Company shall use its reasonable best efforts to cause any post-effective amendment filed by the Company to be declared effective under the Securities Act within thirty days after the expiration of a Deferral Period.
SECTION 3. Registration Procedures. In connection with the registration obligations of the Company under Section 2 hereof, from the date hereof until the expiration of the Effectiveness Period, the Company shall:
(a) Prepare and file, subject to the provisions of Section 2(a) hereof, with the SEC a Registration Statement or Registration Statements on Form F-1 or another appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided that before filing the Initial Shelf Registration Statement with the SEC, furnish to the Special Counsel of such offering, if any, copies of all such documents proposed to be filed at least three (3) Business Days prior to the filing of such Initial Shelf Registration Statement or amendment thereto or Prospectus or supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in
Section 2(a); cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and use its reasonable best efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
(i) when any Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with
the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has been declared effective, (ii)
of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to
any Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, (v) of the occurrence of, but not the
nature of or details concerning, a Material Event or (vi) of the
determination by the Company that a post-effective amendment to a
Registration Statement will be filed with the SEC, which notice may, at
the discretion of the Company (or as required pursuant to Section 3(h)),
state that it constitutes a Deferral Notice, in which event the provisions
of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide immediate notice to each Notice Holder and the Special Counsel of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder and the Special Counsel, upon request and without charge, at least one conformed copy of the Registration Statement and any amendment thereto, including exhibits and all documents incorporated or deemed to be incorporated therein by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder and, upon request, the Special Counsel, in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder and Special Counsel may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the Notice Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder's offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not be required to qualify but for this paragraph (g), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction.
(h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of a Registration Statement or the initiation of proceedings with respect to a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a "Material Event") as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) the occurrence or existence of any pending corporate development that, in the sole and reasonable judgment of the Company upon the receipt of an appropriate opinion from counsel to the Company, makes it appropriate to suspend the availability of a Registration Statement and the related Prospectus, including, without limitation, the determination by the Company that a post-effective amendment to a Registration Statement is required to be filed or (D) the issuance of a notification by the SEC to the Company that has the effect of, or upon the Company's reasonable determination following the receipt of advice of counsel satisfactory to the Holders that the rules and regulations of the SEC have the effect of, requiring the Company to identify Notice Holders as selling security holders in the Registration Statement by means of a post-effective amendment to the Registration Statement:
(i) in the case of clause (B) above, subject to the next sentence, as promptly as reasonably practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use its reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) in the case of any of clauses (A) through (D) above, give notice to the Notice Holders, and the Special Counsel, if any, that the availability of a Registration Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed or commence, as applicable (x) in the case
of clauses (A) and (D) above, as promptly as is reasonably practicable,
(y) in the case of clause (B) above, as soon as, in the sole and
reasonable judgment of the Company, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests of the
Company or, if necessary to avoid unreasonable burden or expense, as soon
as reasonably practicable thereafter and (z) in the case of clause (C)
above, as soon as in the sole and reasonable judgment of the Company upon
the receipt of an appropriate opinion from counsel to the Company, such
suspension is no longer appropriate or required under applicable law. The
Company shall be entitled to exercise its right under this Section 3(h) to
suspend the availability of the Registration Statement or any Prospectus
and, subject to clause (z) below, any such period during which the
availability of the Registration Statement and any Prospectus is suspended
(the "Deferral Period") shall not exceed 5 days; provided that the
aggregate duration of any Deferral Periods shall not exceed 25 days in any
120-day period (or 45 days in any 120-day period in the event of a
Material Event pursuant to which the Company has delivered a second notice
as permitted below); (y) in the case of a Material Event relating to an
acquisition or a probable acquisition or financing, recapitalization,
business combination or other similar transaction, the Company may deliver
to Notice Holders a second notice to the effect set forth above, which
shall have the effect of extending the Deferral Period by up to an
additional 5 days, or such shorter period of time as is specified in such
second notice; or (z) in the case of clause (D) above, the Company shall
use its reasonable best efforts to terminate such Deferral Period as
promptly as is reasonably practicable but shall not be subject to the provisions of clauses (x) and (y) of this sentence. Each Notice Holder agrees to hold any notice by the Company in respect of any Deferral Period or Material Event described in clause (y) of the preceding sentence in confidence.
(i) If requested in writing in connection with an underwritten
disposition of Registrable Securities pursuant to a Registration
Statement, make reasonably available for inspection during normal business
hours by a representative for the underwriters of such Registrable
Securities, any attorneys and accountants retained by such underwriters
all relevant financial and other records and pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal
business hours on reasonable notice all relevant information reasonably
requested by such representative for such underwriters, or any attorneys
or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided that such
persons shall first agree in writing with the Company that any non-public
information shall be kept confidential by such persons and shall be used
solely for the purposes of exercising rights under this Agreement, unless
(i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard by any such person or (iv) such information becomes available
to any such person from a source other than the Company and such source is
not known to be bound by a confidentiality agreement, and provided further
that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of all underwriters and
the other parties entitled thereto by the Special Counsel. Any person
legally compelled to disclose any such confidential information made
available for inspection shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
(j) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and, if required, provide the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
(k) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc.
(l) Use its reasonable best efforts to list all Registrable Securities sold pursuant to a Registration Statement on the Nasdaq Small Cap Market.
(m) Use its reasonable best efforts to comply with the Securities Act in connection with the offer and sale of the Registrable Securities to be sold pursuant to a
Registration Statement, and, make available to its security holders, as soon as reasonably practicable, an earning statement covering at least twelve (12) months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(n) If required to complete the sale, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing their Registrable Securities to be sold pursuant to a Registration Statement and not bearing any legends; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as such Holders may reasonably request at least two (2) business days prior to any sale of their Registrable Securities.
(o) Enter into customary agreements (including an underwriting agreement or securities sales agreement, if any, in customary form) containing such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings as may be reasonably requested of them and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities.
(p) Furnish to each registering Holder of Registrable Securities and to each underwriter, if any, a signed counterpart, addressed to such registering Holder of Registrable Securities or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Holders of a majority of the Registrable Securities included in such offering or the managing underwriters therefore reasonably request; and
SECTION 4. Holder's Obligations. Each Holder agrees, by acquisition of the Registrable Securities, that no Holder shall be entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to Section 2(d) hereof.
Each Notice Holder agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading and any other information regarding such Notice Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request. Any sale of any Registrable Securities by any Holder shall constitute a representation and warranty by such Holder that the information relating to such Holder and its plan of distribution is as set forth in the Prospectus delivered by such Holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to or provided by such Holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact relating to or provided by such Holder or its plan of distribution necessary to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading.
Each Holder acknowledges and agrees that a Notice and Questionnaire will only be valid for a period of 30 Business Days commencing with the proposed sales date and that if any of the Registrable Securities to which such Notice and Questionnaire relates are not sold during such period, a new Notice and Questionnaire will need to be submitted to the Company not later than five (5) Business Days prior to the new proposed sales date. Notwithstanding the foregoing, no Notice and Questionnaire may be submitted, or if submitted will be of no force and effect, and no Registrable Securities may be sold pursuant to the Registration Statement if a Deferral Period is then in effect.
SECTION 5. Registration Expenses. The Company shall bear all fees and expenses incurred in connection with the performance by the Company of its obligations under Sections 2 and 3 of this Agreement whether or not any Registration Statement is declared effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (x) with respect to filings required to be made with the National Association of Securities Dealers, Inc. and (y) of compliance with federal and state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of the Special Counsel in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as Notice Holders may designate pursuant to Section 3(g) of this Agreement and any filings required to be made with the National Association of Securities Dealers, Inc.), (ii) printing expenses, (iii) duplication expenses relating to copies of any Registration Statement or Prospectus delivered to any Holders hereunder, (iv) reasonable fees and disbursements of counsel for the Company and of the Special Counsel in connection with any Registration Statement; provided, that the reimbursement of fees to Special Counsel shall be limited to $25,000, and (v) any Securities Act liability insurance obtained by the Company in its sole discretion. In addition, the Company shall pay the internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing by the Company of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed and the fees and expenses of any person, including special experts, retained by the Company. Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay selling expenses, including any underwriting discount and commissions, and all registration expenses to the extent required by applicable law.
SECTION 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder, each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Holder within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Holder furnished to the Company in writing by such Holder expressly for use therein; provided that the indemnification contained in this paragraph shall not inure to the benefit of any Holder (or to the benefit of any affiliate of such Holder or any person controlling such Holder) on account of any such losses, claims, damages or liabilities caused by any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement; provided in each case the Company has performed its obligations under Section 3(f) hereof if either (A) (x) such Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale by such Holder to the person asserting the claim from which such losses, claims, damages or liabilities arise and (y) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (B) (x) such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of a Registrable Security to the person asserting the claim from which such losses, claims, damages or liabilities arise.
(b) Indemnification by Holders. Each Holder agrees severally and not jointly to indemnify and hold harmless the Company and its directors, its officers and each person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) and each affiliate of the Company within the meaning of Rule 405 under the Securities Act or any other Holder, to the same extent as the foregoing indemnity from the Company to such Holder, but only with reference to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in such Registration Statement or Prospectus or amendment or supplement thereto. In no event shall the liability of any Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by, in the case of parties indemnified pursuant to
Section 6(a), the Holders of a majority of the Registrable Securities covered by
the Registration Statement held by Holders that are indemnified parties pursuant
to Section 6(a) and, in the case of parties indemnified pursuant to Section
6(b), the Company. The indemnifying party shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company shall be deemed to be equal to the aggregate face value of the subordinated notes (as defined in the Pricing Supplement) that are being used by Holders to purchase Preferred Shares as part of the equity participation offer (as defined in the Pricing Supplement), before deducting expenses. The relative benefits received by any Holder shall be deemed to be equal to the value of receiving Registrable Securities that are registered under the Securities Act. The relative fault of the Holders on the one hand and the Company on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Holders or by the Company, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders' respective obligations to contribute pursuant to this Section 6 are several
in proportion to the respective number of Registrable Securities they have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding this Section 6, no indemnifying party that is a selling Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity, hereunder or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder, any person controlling any Holder or any affiliate of any Holder
or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
SECTION 7. Information Requirements. The Company covenants that, if at any time before the end of the Effectiveness Period the Company is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Holder and take such further commercially reasonable action as any Holder may reasonably request in writing (including, without limitation, making such reasonable representations as any such Holder may reasonably request), all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A under the Securities Act and customarily taken in connection with sales pursuant to such exemptions. Upon the written request of any Holder, the Company shall deliver to such Holder a written statement as to whether it has complied with such filing requirements, unless such a statement has been included in the Company's most recent report filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities (other than the Common Stock) under any section of the Exchange Act.
SECTION 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor shall it, on or after the date of this Agreement, enter into, any agreement with respect to its securities that conflicts with the rights granted to the Holders in this Agreement. The Company represents and warrants that the rights granted to the Holders hereunder do not in any way conflict with the rights granted to the holders of the Company's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding the
foregoing sentence, this Agreement may be amended by written agreement signed by
the Company and the Holders, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by such Holder to the Company in a Notice and Questionnaire or any amendment thereto:
with a copy to (which shall not constitute notice):
Mayer, Brown, Rowe & Maw LLP 190 South LaSalle Street Chicago, IL 60603 Attention: Douglas Doetsch, Esq.
Fax No.: (312) 701-7711
(ii) if to the Company, to:
Grupo Financiero Galicia S.A.
Tte. Gral. Jua D. Peron 407, 2 Piso
C1038AA1 Buenos Aires
Argentina
Attention: Pedro Richards
Fax No.: 011-54-11-4-343-7528
with a copy to (which shall not constitute notice):
White & Case LLP
New York, NY 10036
Attention: Priscilla Almodovar, Esq.
Fax No.: (212) 354-8113
or to such other address as such person may have furnished to the other persons identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) (other than subsequent Holders if such subsequent Holders are deemed to be such affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in either the numerator or denominator in determining whether such consent or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties and shall inure to the benefit of and be binding upon each Holder of any Registrable Securities. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term provision, covenant or restriction of this Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, and the parties hereto shall use their efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and the registration rights granted by the Company with respect to the Registrable Securities. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein, with respect to the registration rights granted by the Company with respect to the Registrable Securities. This Agreement supersedes all prior agreements and undertakings among the parties with respect to such registration rights. No party hereto shall have any rights, duties or obligations other than those specifically set forth in this Agreement. In no event will such methods of distribution take the form of an underwritten offering of the Registrable Securities without the prior agreement of the Company.
(k) Termination. This Agreement and the obligations of the parties hereunder shall terminate upon the end of the Effectiveness Period, except for any liabilities or obligations under Section 4, 5 or 6 hereof, which shall remain in effect in accordance with its terms.
(l) Specific Performance. In the event that the Company fails to perform any of its obligations under this Agreement, any Holder shall be entitled, in addition to any other remedies as may be available to such Holder at law or in equity, to seek specific performance of the Company's obligations hereunder.
IN WITNESS WHEREOF, the Company has executed this Agreement for the benefit of the Holders as of the date first written above.
GRUPO FINANCIERO GALICIA S.A.
By: /s/ Pedro A. Richards --------------------------------- Name: Pedro A. Richards Title: Managing Director |
Exhibit 99.2
AGREEMENT
DATED AS OF
APRIL 27, 2004
AMONG
GRUPO FINANCIERO GALICIA S.A.,
INTERNATIONAL FINANCE CORPORATION,
INTER-AMERICAN INVESTMENT CORPORATION,
COMMODITY CREDIT CORPORATION,
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS NOTE PURCHASE AGREEMENT AGENT,
AND
AS NEW TRADE CREDIT AGREEMENT AGENT.
AGREEMENT
This Agreement (this "Agreement") is made as of April 27, 2004 among:
(i) Grupo Financiero Galicia S.A. (together with its successors and permitted assigns, "Grupo"),
(ii) International Finance Corporation (together with its successors and assigns, "IFC"),
(iii) Inter-American Investment Corporation (together with its successors and assigns, "IIC"),
(iv) Deutsche Bank Trust Company Americas, acting as agent for the holders from time to time parties to the Note Purchase Agreement (together with its successors and assigns in such capacity, the "Note Purchase Agreement Agent") and as Agent under the New Trade Credit Agreement (defined below) (together with its successors and assigns in such capacity, the "New Trade Credit Agreement Agent"), and
(v) Commodity Credit Corporation (together with its successors and assigns, "CCC").
PRELIMINARY STATEMENTS
A. Banco de Galicia y Buenos Aires, S.A. ("Banco de Galicia"), an Argentine corporation, is a subsidiary of Grupo. Banco de Galicia is entering into a restructuring of its foreign currency-denominated unsecured indebtedness.
B. In connection with such restructuring, and in order to encourage the other parties hereto to enter into the Transaction Documents (defined below) and the Other Documents (defined below), Grupo is entering into this Agreement.
NOW THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. As used in this Agreement, the following terms shall have the following respective meanings:
"Accounting Principles" means the accounting principles generally accepted in the Country in effect from time to time, relating to financial holding companies, including without limitation Grupo, in the Country, applied on a consistent basis.
"Affiliate" means a Person who directly or indirectly through one or more intermediaries Controls or is Controlled by, or is under common Control with, Grupo.
"Assignment Agreement" means the assignment agreement to be entered into on or prior to the Effective Date and executed and delivered by and between EBA Holding S.A. and First Trust of New York, National Association, Representacion Permanente en Argentina, as trustee under the Trust Agreement.
"Auditors" means Price Waterhouse & Co., or such other "Big Four" firm of internationally recognized independent public accountants, as Grupo may from time to time appoint as its auditors.
"Authority" means any national, supranational, regional or local government or governmental, administrative, fiscal, judicial, legislative, regulatory, executive, government-owned (directly or indirectly) or government-controlled (directly or indirectly) body, department, commission, authority, tribunal, agency or entity, or central bank (or any Person, whether or not government owned and howsoever constituted or called, that exercises the functions of a central bank).
"Authorization" means any consent, registration, filing, agreement, notarization, certificate, license, approval, permit, authority or exemption from, by or with any Authority, whether given by express action or deemed given by failure to act within any specified time period, and all applicable corporate, creditors' and shareholders' approvals or consents.
"Banco de Galicia" has the meaning set forth in the preliminary statements to this Agreement.
"Business Day" means a day when banks are open for business in New York, New York and Buenos Aires, Argentina.
"Capital Stock" means with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
"CCC" has the meaning set forth in the preamble to this Agreement.
"Change of Control" means (i) the failure of EBA Holding S.A. to (A)
Control and (B) own Voting Stock which (except for those matters for which class
"A" shares of Grupo have the right to only one vote) has the right to at least
fifty-nine point forty-two percent (59.42%) of the total votes at shareholders
meetings of Grupo, provided that such percentage may be reduced (without
constituting a "Change of Control") to a percentage of Voting Stock which
(except for those matters for which class "A" shares of Grupo have the right to
only one vote) has the right to cast a majority of the votes at shareholders
meetings of Grupo in the event that Grupo issues equity securities by reason of
any transaction not prohibited under the terms of the Financing Agreements
(including, without limitation, the issuance of equity by the Borrower), (ii)
the failure of Grupo to (A) Control Banco de Galicia and (B) to own at least
ninety-three percent (93%) of the Capital Stock and Voting Stock of Banco de
Galicia (provided that such percentage may be reduced (without constituting a
"Change of Control") to sixty-five percent (65%) of the Capital Stock and Voting
Stock of Banco de Galicia in the event that Banco de Galicia issues equity
securities by reason of any transaction not prohibited under the terms of the
Transaction Documents (including, without limitation, the issuance of equity by
Banco de Galicia).
"Charter" means, with respect to Grupo, its "estatutos sociales".
"Clearstream" means Clearstream Banking Societe Anonyme.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of Voting Stock, by contract or otherwise, and the verb "Control" and the terms "Controlling" and "Controlled" have the meanings correlative to the foregoing.
"Country" means the Republic of Argentina.
"Dollar Equivalent" means, with respect to (i) any monetary amount denominated in Dollars, such amount, (ii) any monetary amount denominated in Pesos, at any time for the determination thereof, the amount of Dollars obtained by converting Pesos into Dollars at the EMTA Rate or, if such rate shall not be available, at the rate determined by IFC, IIC, CCC, the Note Purchase Agreement Agent and the New Trade Credit Agreement Agent, based on the average of exchange rate for the purchase of Dollars with Pesos as reported at the close of business two (2) Business Days prior to the date of determination by Banco Rio de la Plata S.A., Deutsche Bank S.A. and the branch of Citibank, N.A. in the Country (or if any of such entities shall not report such quotations, by any of HSBC Bank Argentina S.A., Bankboston N.A. Buenos Aires Branch or JP Morgan Chase Bank Buenos Aires Branch, respectively), and (iii) a currency other than Dollars or Pesos, at any time for the determination thereof, the amount of Dollars obtained by converting such other currency into Dollars at the average of the spot rates for the purchase of Dollars with such other currency, as publicly quoted by the Note Purchase Agreement Agent in the normal course of business at approximately 11:00 a.m. (New York City time), on the date of determination thereof specified herein or, if the date of determination thereof is not otherwise specified herein, in each case on the date two (2) Business Days prior to such determination
"Dollars" or "$" or "US$" means the lawful currency of the United States of America.
"Effective Date" means the latest to occur of the (i) "Effective Date" (as defined in the Restructured IFC Long-Term Loan Agreement), (ii) "Effective Date" (as defined in the Restructured IIC Long-Term Loan Agreement), and (iii) "Effective Date" (as defined in the Note Purchase Agreement).
"EMTA" means the Emerging Markets Trading Association.
"EMTA Rate" means the rate of exchange used for the purchase of Dollars with Pesos as quoted by the EMTA on its website at www.emta.org/aservices (or such other web page of EMTA where the quotation is published if this web address changes) two (2) Business Days prior to the date of determination, at 2:00 p.m. (Buenos Aires time).
"Equity Participation Option" means the offering by Banco de Galicia to make available (i) Medium-Term Bonds up to a maximum amount of three hundred million Dollars ($300,000,000) and (ii) up to one hundred and forty-nine million (149,000,000) Preferred Shares (or Preferred Shares and cash, if any), to each creditor of Banco de Galicia participating in the equity participation option, subject to the prorationing procedures set forth in the applicable Other Documents.
"Escasany, Ayerza and Braun Family Members" means any members of the Escasany, Ayerza and Braun families who are holders of Class "A" Shares of EBA Holding S.A., or their heirs, descendants and spouses who receive shares as a result of dissolution of marriage and the
Fundacion Banco de Galicia y Buenos Aires S.A., which holders of class "A" shares are identified in the shareholders' meeting minutes, Number 1, of EBA Holding S.A., dated October 12, 1999, and registered in the Registro Publico de Comercio under number 18,036, Libro VIII, Tomo de Sociedades por Acciones.
"Euroclear" means Euroclear Bank S.A/N.V.
"Fiscal Year" means the accounting year of Grupo commencing each year on January 1 and ending on the following December 31, or such other accounting period of Grupo as Grupo may from time to time designate as its accounting year.
"Grupo" has the meaning set forth in the preamble to this Agreement.
"IFC" has the meaning set forth in the preamble to this Agreement.
"IIC" has the meaning set forth in the preamble to this Agreement.
"Long-Term Bonds" means the Dollar-denominated notes (obligaciones negociables) due 2014 to be issued by Banco de Galicia under, and pursuant to the terms and conditions applicable to, the Restructuring.
"Material Adverse Effect" means a material adverse effect on:
(i) the condition (financial or otherwise), operations, Property, business affairs or business prospects of Grupo and its Subsidiaries taken as a whole;
(ii) the validity or enforceability of any of the Transaction Documents;
(iii) the rights and remedies of, or benefits available to, any party (other than Grupo) under any of the Transaction Documents; or
(iv) the ability of Grupo to perform its obligations under this Agreement or any other Transaction Document in accordance with the terms hereof or thereof.
"Medium-Term Bonds" means the Dollar-denominated notes (obligaciones negociables) due 2010 to be issued by Banco de Galicia under, and pursuant to the terms and conditions applicable to, the Restructuring.
"NASDAQ" means, The Nasdaq Stock Market, Inc.
"New Trade Credit Agreement" means the trade credit agreement, dated as of April 27, 2004, by and among Banco de Galicia, the New Trade Credit Agreement Agent, the letter of credit bank party thereto and the lenders party thereto from time to time.
"New Trade Credit Agreement Agent" has the meaning set forth in the preamble to this Agreement.
"Note Purchase Agreement" means the note purchase agreement, dated as of April 27, 2004, by and among Banco de Galicia, the Note Purchase Agreement Agent, Barclays Bank PLC, as Documentation Agent and the holders party thereto from time to time.
"Other Documents" means:
(i) the Restructured IFC Loan Agreements;
(ii) the Restructured IIC Loan Agreements;
(iii) the Restructured CCC Loan Agreement;
(iii) the Restructured Bonds;
(iv) the Trust Agreement;
(v) the Assignment Agreement;
(vi) the New Trade Credit Agreement;
(vii) the Note Purchase Agreement; and
(viii) all and any other documents, instruments, indentures, fiscal and paying agency agreements and/or other agreements relating to, and/or in connection with, any of the foregoing agreements and documents.
"Person" means any natural person, corporation, company, partnership, firm, voluntary association, joint venture, trust, business trust, joint stock company, limited liability company, unincorporated association, unincorporated organization, Authority or any other entity whether acting in an individual, fiduciary or other capacity and whether or not having a separate legal personality.
"Pesos" means the lawful currency of the Country.
"Preferred Shares" means preferred shares of Grupo issued pursuant to the equity prospectus dated April 26, 2004 which will be automatically converted into class "B" shares of Grupo on the first (1st) anniversary date of their issuance or, if earlier, on the occurrence of a change of control of Grupo.
"Property" means any asset, revenue or other property, whether tangible or intangible, real or personal, including without limitation any right to receive income.
"Purchase Agreement" means the purchase agreement to be entered into on or prior to the Effective Date between Banco de Galicia and Grupo.
"Registration Rights Agreement" means the registration rights agreement in the form of Exhibit A attached hereto, to be dated as of the Effective Date and executed and delivered by Grupo.
"Regulation S" means Regulation S under the United States Securities Act of 1933, as amended.
"Restructured Bonds" means, collectively, (i) the Long-Term Bonds,
(ii) the Medium-Term Bonds, and (iii) the Subordinated Bonds.
"Restructured CCC Loan Agreement" means the dollar loan agreement, dated as of April 27, 2004, between Banco de Galicia and CCC.
"Restructured IFC Loan Agreements" means, collectively, (i) the Restructured IFC Long-Term Loan Agreement; (ii) the Restructured IFC Medium-Term Loan Agreement and (iii) the Restructured IFC Subordinated Loan Agreement.
"Restructured IFC Long-Term Loan Agreement" means the amended and restated long-term loan agreement, dated as of April 27, 2004, between Banco de Galicia and IFC.
"Restructured IFC Medium-Term Loan Agreement" means the amended and restated medium-term loan agreement, dated as of April 27, 2004, between Banco de Galicia and IFC.
"Restructured IFC Subordinated Loan Agreement" means the amended and restated subordinated loan agreement, dated as of April 27, 2004, between Banco de Galicia and IFC.
"Restructured IIC Loan Agreements" means, collectively, (i) the Restructured IIC Long-Term Loan Agreement; (ii) the Restructured IIC Medium-Term Loan Agreement and (iii) the Restructured IIC Subordinated Loan Agreement.
"Restructured IIC Long-Term Loan Agreement" means the amended and restated long-term loan agreement, dated as of April 27, 2004, between Banco de Galicia and IIC.
"Restructured IIC Medium-Term Loan Agreement" means the amended and restated medium-term loan agreement, dated as of April 27, 2004, between Banco de Galicia and IIC.
"Restructured IIC Subordinated Loan Agreement" means the amended and restated subordinated loan agreement, dated as of April 27, 2004, between Banco de Galicia and IIC.
"Restructuring" means the restructuring of the foreign currency-denominated unsecured indebtedness of Banco de Galicia.
"SEC" means the United States Securities and Exchange Commission.
"SOX Act" means the U.S. Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder from time to time.
"Subordinated Bonds" means the Dollar-denominated notes (obligaciones negociables) due 2019 to be issued by Banco de Galicia under, and pursuant to the terms and conditions applicable to, the Restructuring.
"Subscription Agreement" means the subscription agreement, to be entered into on or prior to the Effective Date and executed and delivered by and between First Trust of New York, National Association, Representacion Permanente en Argentina, as Trustee and Grupo.
"Subsidiary" means any Person of which, at the time of determination, Grupo and/or one or more of its Subsidiaries owns or Controls directly or indirectly more than fifty percent (50%) of the shares of such Person's capital voting stock.
"Taxes" means any present or future taxes, assessments, withholding obligations, duties and other charges of whatever nature levied, imposed and/or collected by any Authority, and all interest, penalties, or similar liabilities with respect thereto.
"Transaction Documents" means:
(i) this Agreement;
(ii) the Subscription Agreement;
(iii) the Purchase Agreement; and
(iv) the Registration Rights Agreement.
"Trust" means the trust created pursuant to the Trust Agreement.
"Trust Agreement" means the trust agreement, to be entered into on or prior to the Effective Date, between Banco de Galicia and First Trust of New York, National Association, Representacion Permanente en Argentina, as Trustee.
"Voting Stock" means, with respect to a Subsidiary or an Affiliate, any stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such Person; provided, however, that, for the purposes hereof, stock which carries only the right to vote conditionally on the happening of an event shall not be considered Voting Stock, whether or not such event shall have happened.
SECTION 2. Covenants. Until all principal and interest owing by Banco de Galicia under the Other Documents, and all other amounts owing under any of the Transaction Documents have been paid in full,
(a) Grupo shall: (i) from and after the six-month anniversary of the Effective Date, cause the audit committee (which shall be at all times sufficiently and broadly empowered to perform internal audits and to review compensation of directors and senior management of Grupo as well as transactions with Affiliates) of its board of directors to have at least three members, a majority of which shall be "Independent Directors" (as such term is defined in NASDAQ Stock Market Inc. Rule 4350(d)(2)(A)); (ii) comply, as and when required to by foreign private issuers, with Section 402 of the SOX Act and the rules and regulations adopted by the SEC and the Public Company Accounting Oversight Board thereunder; (iii) comply with the internal control report requirements under Section 404(a) of the SOX Act and the rules and regulations adopted by the SEC and the Public Company Accounting Oversight Board
thereunder; (iv) implement a code of ethics as defined in Section 406(c) of the SOX Act, which code of ethics shall be applicable to its chief executive and senior financial officers or persons performing similar functions; and (v) to the extent required under the SOX Act with respect to any reports that Grupo files with the SEC, NASDAQ or other national securities market and in annual reports distributed to Class B shareholders include certifications from its chief executive officer and chief financial officer.
(b) Grupo shall not:
(i) pay fees to the members of its board of directors
during any Fiscal Year, or enter into agreements or any other kind of
transactions pursuant to which Grupo shall (or shall be obligated to) pay
fees, salaries, retainers or any other kind of compensation to the members
of its board of directors during any Fiscal Year, if the aggregate amount
of fees, salaries, retainers or other compensation covered by this clause
(i) during such Fiscal Year would exceed one million five hundred thousand
Dollars ($1,500,000) (or the Dollar Equivalent in any other
currency), provided that Grupo, in accordance with clause (ii) below,
shall be permitted to make additional payments to members of the board who
hold executive positions of Grupo for performing executive functions; or
(ii) make any payment to its Management in excess of Market Compensation. For this purpose: "Management" means full-time employees, full-time officers or members of the board of Grupo who hold executive positions of Grupo; and "Market Compensation" means compensation that is within the normal range of compensation for similar executives in the Country.
(c) Grupo shall furnish to the other parties hereto:
(i) as soon as available but in any event not later than one hundred twenty (120) days after the close of each Fiscal Year in the case of the documents referred to in clauses (1), (3), (6), and (7) below, within one hundred thirty (130) days after the close of each Fiscal Year in the case of the document referred to in clause (8), and within one hundred eighty (180) days after the close of each Fiscal Year in the case of the documents referred to in clauses (2), (4) and (5) below: (1) a complete copy of its annual report in the English language (an "Annual Report", which shall include a consolidated balance sheet, consolidated statement of income, consolidated statement of changes in stockholders' equity and consolidated statement of cash flows for such Fiscal Year of Grupo and will be audited and accompanied by a report thereon of the Auditors), (2) a certificate from the Auditors containing a reconciliation to U.S. generally accepted accounting principles of net income and shareholders' equity of Grupo, (3) a management letter from the Auditors to Grupo or to its management commenting on, among other things, the adequacy of Grupo's financial control procedures and accounting systems and management information system, together with copies of any other communication sent by the Auditors in relation to such procedures and systems; (4) a certificate from Grupo, certifying that it was in compliance with Section 402 of the SOX Act, and setting forth all outstanding loans and other obligations between Grupo and Escasany, Ayerza and Braun Family Members or any Person holding five percent (5%) or
more of the Grupo's Capital Stock shareholders or between Grupo and Banco
de Galicia during such Fiscal Year, (5) commencing with the Fiscal Year
ending in 2005, an internal control report by Grupo containing the
information required under Section 404(a) of the SOX Act and the rules and
regulations adopted by the SEC and the Public Company Accounting Oversight
Board thereunder, together with an attestation from the Auditors with
respect to such reporting as would be required by Section 404(b) of the
SOX Act and the rules and regulations adopted by the SEC and the Public
Company Accounting Oversight Board thereunder; (6) a certificate from
Grupo certifying compliance with the covenants in Section 2(a) and 2(b);
(7) a certificate from Grupo setting forth the organizational structure of
Grupo, listing the percentages of Capital Stock and Voting Stock of Grupo
held by EBA Holding S.A. and certifying that no Change of Control has
occurred in the relevant Fiscal Year; and (8) a certificate from Grupo
setting forth all claims, contingencies or commitments (broken down into
cash and non-cash items) of Grupo against its controlling shareholders or
Banco de Galicia;
(ii) as soon as available but in any event not later than sixty (60) days after the end of each quarter of each Fiscal Year, a quarterly report of Grupo in the English language (a "Quarterly Report", which Quarterly Report shall include an unaudited, consolidated balance sheet, consolidated statement of income and consolidated statement of changes in shareholders' equity for such Fiscal Year or quarter of Grupo and shall be subject to limited review by the Auditors in accordance with the Accounting Principles);
(iii) promptly by facsimile or telex not less than twenty (20) days before it takes place, notice of any meeting of its shareholders including the agenda of the meeting;
(iv) promptly, copies of (A) all notices, reports and other communications of Grupo to its shareholders, and (B) the minutes of all shareholders' meetings;
(v) promptly, notice of any proposed material change in the business or operations of Grupo and of any event or condition that has had or might reasonably be expected to have a Material Adverse Effect;
(vi) notice, as soon as Grupo becomes aware of any litigation or administrative proceedings before any Authority or arbitral body which might reasonably be expected to have a Material Adverse Effect, which notice shall specify the nature of such litigation or proceedings and the steps Grupo is taking or proposes to take with respect thereto;
(vii) promptly after the sending or filing thereof, copies of all material proxy statements, financial statements and reports and copies of all material regular, periodic and special reports that Grupo files with the Argentine Comision Nacional de Valores, the NASDAQ, the SEC or any Authority that may be substituted therefor, or with any national securities exchange;
(viii) promptly upon receipt thereof, all amendments, modifications or waivers of any provision of any of the Transaction Documents; and
(ix) promptly, such information as any party hereto may from time to time reasonably request about Grupo and its Property.
(d) On or before the Effective Date, (i) execute and deliver the Subscription Agreement and the Purchase Agreement, and (ii) fully comply with any and all of its obligations under the Subscription Agreement and Purchase Agreement.
(e) From and after the Effective Date, fully comply with any and all of its obligations under the Transaction Documents.
SECTION 3. Representations and Warranties. Grupo represents and warrants to the other parties hereto, as of the date hereof and the Effective Date, except as expressly set forth herein, that:
(a) Grupo (i) is a company duly incorporated and validly existing under the laws of the jurisdiction of its incorporation, (ii) has obtained all required Authorizations to own its assets and conduct its business as presently conducted, and (iii) has the power, authority and legal right to enter into and perform its obligations under this Agreement and the Transaction Documents or will, in the case of any Transaction Document not executed as at the date of this Agreement, when that Transaction Document is executed, have the power, authority and legal right to enter into and comply with its obligations under such Transaction Document.
(b) Neither the execution, delivery or performance of this Agreement or any Transaction Document nor the compliance with its terms will conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default or require any consent under, any indenture, mortgage, agreement or other instrument or arrangement to which Grupo is a party or by which it is bound, or violate any of the terms or provisions of Grupo's Charter or any Authorization, judgment, decree or order or any statute, rule or regulation applicable to Grupo or result in or require the creation or imposition of any lien upon or with respect to any of the properties of Grupo.
(c) This Agreement and each other Transaction Document to which Grupo is a party has been, or will be, duly authorized and executed by Grupo and constitutes, or will constitute when so executed, a valid and legally binding obligation of Grupo, enforceable against Grupo in accordance with its terms, subject to (i) applicable bankruptcy, insolvency and other similar laws affecting creditor's rights generally, and (ii) general equitable principles regardless of whether the issue of enforceability is considered in a proceeding in equity or at law.
(d) All of the Authorizations needed by Grupo to conduct its business and execute and comply with its obligations under this Agreement and each of the other Transaction Documents have been obtained and are final and in full force and effect and Grupo has not received any notice of proceedings relating to the revocation, cancellation, expropriation or modification of any such Authorization.
(e) Grupo and each of its Subsidiaries is not in violation of any material statute or regulation of any Authority (including social security laws and retirement and pension funds laws and all regulations and requirements of the Argentine National Securities Commission (Comision Nacional de Valores), the NASDAQ, the SEC, and their respective successors.
(f) All material tax returns and reports of Grupo required by law to be filed have been duly filed and all material Taxes, obligations, fees and other governmental charges upon Grupo, or its Properties, or its income or assets, which are due and payable or to be withheld, have been paid or withheld, other than any such liabilities that are being contested in good faith and by appropriate proceedings, and for which adequate reserves with respect thereto have been established to the extent required by Accounting Principles.
(g) There is no Tax, impost, deduction, charge or withholding imposed by the Country or any political subdivision or taxing authority thereof or therein on or by virtue of the execution or delivery of this Agreement.
(h) Neither any information, financial statement, exhibit, schedule nor any report furnished in writing by or on behalf of Grupo to any of the other parties hereto in connection with the negotiation of the Transaction Documents or pursuant to the terms of the Transaction Documents (other than any projections, estimates or information of a general economic nature) contain, when taken as a whole, any untrue statement of a material fact or omit to state a material fact necessary to make the statements made therein not misleading in light of the circumstances under which they were made. All written information furnished after the date hereof by Grupo to any of the other parties hereto in connection with this Agreement and the transactions contemplated in the Transaction Documents will be true, complete and accurate in all material respects or (in the case of projections) based on estimates believed by Grupo to be reasonable, on the date of which such information is stated or certified. There is no fact known to Grupo that could reasonably be expected to have a Material Adverse Effect that has not been disclosed herein or in a report, financial statement, exhibit, schedule, disclosure letter or other writing furnished by Grupo to the other parties hereto on or prior to the date hereof for use in connection with the transactions contemplated hereby, in the other Transaction Documents or in the Other Documents.
(i) This Agreement and the other Transaction Documents are in proper legal form under the laws of the Country for the enforcement thereof against Grupo under the laws of the Country, and the obligations of Grupo under this Agreement and the other Transaction Documents may be enforced (by judgment and levy) in accordance with their respective terms in a proceeding at law in any competent court in the Country; provided, however, that (i) an official Spanish translation of this Agreement or the other Transaction Documents, as applicable, is required to bring an action thereon in the courts of the Country and (ii) the enforcement of foreign judgments in the Country would be recognized if the requirements of Article 517 of the Federal Code on Civil and Commercial Procedure are met, including: (A) the judgment, which must be final in the jurisdiction where rendered, was issued by a competent court in accordance with Argentine laws regarding conflict of laws and jurisdiction and resulted from a personal action, or an in rem action regarding property that was transferred into the Country during or after the prosecution of the foreign action; (B) the defendant against whom enforcement of the
judgment is sought was personally served with the summons, in accordance with due process of law, and was given an opportunity to defend against the foreign action; (C) the judgment must be valid in the jurisdiction where rendered and its authenticity must be established in accordance with the requirements of Argentine law; (D) the judgment does not violate the principles of public policy of Argentine law; and (E) the judgment is not contrary to a prior or simultaneous judgment of an Argentine court.
(j) Grupo is not an "investment company" subject to regulation under the U.S. Investment Company Act of 1940, as amended.
(k) The financial statements of Grupo for the Fiscal Years ending on December 31, 2003 and December 31, 2002, copies of which have been furnished to the other parties hereto:
(i) have been prepared in accordance with the Accounting Principles applicable to Grupo, and present fairly, in all material respects, the financial condition of Grupo as of the date as of which they were prepared and the results of Grupo's operations during the period then ended; and
(ii) disclose all liabilities (contingent or otherwise) of Grupo, and the reserves, if any, for such liabilities and all unrealized or anticipated liabilities and losses arising from commitments entered into by Grupo (whether or not such commitments have been disclosed in such financial statements) required, pursuant to the Accounting Principles, to be disclosed therein.
(l) Grupo has obtained all necessary governmental approvals to consummate the transactions contemplated in the Subscription Agreement and in the Purchase Agreement, including the Comision Nacional de Valores approval for the public offering of the Preferred Shares and the Bolsa de Comercio de Buenos Aires and the Bolsa de Comercio de Cordoba approvals for the listing of the Preferred Shares.
(m) On the Effective Date, the Preferred Shares shall constitute twelve percent (12%) of the issued and outstanding capital stock of Grupo on a fully diluted basis. From and after the Effective Date, the Preferred Shares shall be registered in the stock records of Grupo noting the names of the beneficial owners thereof.
(n) As of the Effective Date, the stock register of Grupo will accurately record the issuance of the Preferred Shares through: (i) a global certificate held by Caja de Valores S.A. in respect of Euroclear and Clearstream on behalf of the beneficial owners of Preferred Shares that do not fall within the category of U.S. Persons as such term is defined under Regulation S, and (ii) definitive form in respect to each of the beneficial owners of Preferred Shares that do fall under the category of U.S. Persons as such term is defined under Regulation S.
(o) As of the Effective Date, the Preferred Shares will be duly issued, subscribed, and paid in, in accordance with their respective terms and conditions of issuance, have no voting rights, and have a par value per share of Ps. 1.00. The Preferred Shares shall automatically convert into ordinary "B" shares of Grupo on the first anniversary of the date of their issuance or, if earlier, upon the occurrence of a Change of Control of Grupo. The Preferred
Shares have preferential rights over the remaining shares of Grupo in the event of liquidation of Grupo.
(p) Except for the preferential and accretion rights corresponding to holders of ordinary shares of Grupo, there are no outstanding options, subscription coupons, or rights of any kind exist to acquire additional shares of Grupo's stock, or bonds convertible into, or exchangeable for, stock or otherwise conferring upon the shareholders of Grupo, the right to acquire additional shares, and no undertaking was made by Grupo to issue any of such options, subscription coupons, rights or bonds. Except for the capital increase for the issuance of the Preferred Shares, Grupo has no pending: (a) capital increase or reduction, (b) subscription, issuance, or redemption of shares, (c) re-statement or amendment of its by-laws, (d) mergers, split-offs or transfers of goodwill, or (e) anything that will adversely affect the consummation of the Restructuring.
SECTION 4. Survival. All covenants, agreements, representations and warranties made by Grupo herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement, regardless of any investigation made by any such other party or on its behalf and notwithstanding that any party hereto may have had notice or knowledge of any incorrect representation or warranty, and shall continue in full force and effect as long as any amount payable under any Other Document is outstanding and unpaid. Without prejudice to the survival of any other agreement of Grupo hereunder, the provisions of Sections 6, 7, 8, 9, 10, 11, 13, 14, 15 and 16 of this Agreement shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby or the payment in full of principal, interest and all other amounts payable under any of the other Other Documents.
SECTION 5. Counterparts; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on separate counterparts), each of which when so executed shall constitute an original, and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be as effective as delivery of a manually executed counterpart of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that Grupo shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the other parties hereto. This Agreement represents the entire agreement of Grupo and the other parties hereto with respect to the subject matter hereof.
SECTION 6. Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof, and the invalidity, illegality or unenforceability of a particular provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 7. Jurisdiction; Consent to Service of Process. (a) Each of the parties hereto (other than the Commodity Credit Corporation) hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents or Other Documents to which it is a party, or for recognition or enforcement of any judgment, and each of the parties hereto (other than the Commodity Credit Corporation) hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such New York State court or, to the fullest extent permitted by law, in such Federal court. The Commodity Credit Corporation hereby irrevocably and unconditionally submits to the jurisdiction of any Federal court of the United States of America and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any of the Other Documents to which it is a party, or for recognition or enforcement of any judgment, and the Commodity Credit Corporation hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in any such Federal court; provided, any suit against the Commodity Credit Corporation shall be brought in the District of Columbia, or in the Federal district wherein the plaintiff resides or is engaged in business. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the party hereto may otherwise have to bring any action or proceeding relating to this Agreement in the courts of any jurisdiction. Grupo irrevocably and unconditionally waives any right to claim a lack of jurisdiction should any Transaction Document or Other Document be enforced in the Country. Grupo hereby irrevocably appoints CT Corporation System (the "Process Agent") with an office on the date hereof at 111 Eighth Avenue, New York, New York 10011, United States, as its agent to receive on behalf of Grupo and its property service of copies of the summons and complaint and any other process which may be served in any such action or proceeding arising out of or relating to this Agreement or any other Transaction Document governed by New York law. Such service may be made by mailing or delivering a copy of such process to Grupo in care of the Process Agent at the Process Agent's above address, and Grupo hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, Grupo also irrevocably consents to the service of any and all process in any such action or proceeding by sending copies of such process by mail to Grupo at its address specified in Section 8. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Transaction Document in any New York State or Federal court referred to in subparagraph (a) of this Section 7. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
SECTION 8. Notices. Any notice, request or other communication to be given or made under this Agreement shall be in writing. Except as otherwise provided in Section 2(c), any such communication may be delivered by hand, airmail, facsimile or established courier service to the
party's address specified below or at such other address as such party notifies to the other parties hereto from time to time, and will be effective upon receipt.
For Grupo:
Tte. Gral. Juan D. Peron 456, 2 degrees piso
C1038AAJ Buenos
Aires Republica Argentina
Facsimile: 4331-9183
Attention: Pedro A. Richards
with a copy (which shall not constitute notice) to:
WHITE & CASE LLP
1155 Avenue of the Americas
New York, NY 10036
Facsimile: (+1 212) 354-8113
Attention: Priscilla Almodovar
For IIC:
INTER-AMERICAN INVESTMENT CORPORATION
1300 New York Avenue, N.W.
Washington, D.C. 20577
United States of America
Facsimile: (+1 202) 623-2360 or 623-3807 Attention: General Manager (with a copy to General Counsel)
With a copy (which shall not constitute notice) to:
MARVAL, O'FARRELL & MAIRAL
Av. Leandro N. Alem 928
(C1001AAR) Buenos Aires
Republic of Argentina
Facsimile: (+54 11) 4310-0200 Attention: Roberto E. Silva, Jr./Luciano Ojea Quintana.
MAYER, BROWN, ROWE & MAW LLP,
190 S. LaSalle Street,
Chicago, Illinois 60603
Facsimile: (+1 312) 706-8125
Attention: Douglas Doetsch
For IFC:
INTERNATIONAL FINANCE CORPORATION
2121 Pennsylvania Avenue, N.W.
Washington, D.C. 20433
United States of America
Facsimile: (+1 202) 974-4300 Attention: Director, Global Financial Markets
With a copy (in the case of communications relating to payments) sent to the attention of the Senior Manager, Financial Operations Unit, at:
Facsimile: (+1 202) 974-4371.
With a copy (which shall not constitute notice) to:
MARVAL, O'FARRELL & MAIRAL
Av. Leandro N. Alem 928
(C1001AAR) Buenos Aires
Republic of Argentina
Facsimile: (+54 11) 4310-0200 Attention: Roberto E. Silva, Jr./Luciano Ojea Quintana.
MAYER, BROWN, ROWE & MAW LLP,
190 S. LaSalle Street,
Chicago, Illinois 60603
Facsimile: (+1 312) 706-8125
Attention: Douglas Doetsch
For CCC:
COMMODITY CREDIT CORPORATION
3101 Park Center Drive, Suite 1208,
Alexandria, Virginia 22302,
Telecopy: (+1 703) 305-2842
Attention: Kristine Chadwick
With a copy (which shall not constitute notice) to:
MARVAL, O'FARRELL & MAIRAL
Av. Leandro N. Alem 928
(C1001AAR) Buenos Aires
Republic of Argentina
Facsimile: (+54 11) 4310-0200 Attention: Roberto E. Silva, Jr./Luciano Ojea Quintana.
MAYER, BROWN, ROWE & MAW LLP,
190 S. LaSalle Street,
Chicago, Illinois 60603
Facsimile: (+1 312) 706-8125
Attention: Douglas Doetsch
For Note Purchase Agreement Agent:
DEUTSCHE BANK TRUST COMPANY AMERICAS
60 Wall Street
New York, New York 10005
Facsimile: (+1 212) 912-7751
Attention: Dorothy Robinson.
With a copy (which shall not constitute notice) to:
MARVAL, O'FARRELL & MAIRAL
Av. Leandro N. Alem 928
(C1001AAR) Buenos Aires
Republic of Argentina
Facsimile: (+54 11) 4310-0200 Attention: Roberto E. Silva, Jr./Luciano Ojea Quintana.
MAYER, BROWN, ROWE & MAW LLP,
190 S. LaSalle Street,
Chicago, Illinois 60603
Facsimile: (+1 312) 706-8125
Attention: Douglas Doetsch
For New Trade Credit Agreement Agent:
DEUTSCHE BANK TRUST COMPANY AMERICAS
60 Wall Street
New York, New York 10005
Facsimile: (+1 212) 912-7751
Attention: Dorothy Robinson.
With a copy (which shall not constitute notice) to:
MARVAL, O'FARRELL & MAIRAL
Av. Leandro N. Alem 928
(C1001AAR) Buenos Aires
Republic of Argentina
Facsimile: (+54 11) 4310-0200 Attention: Roberto E. Silva, Jr./Luciano Ojea Quintana.
MAYER, BROWN, ROWE & MAW LLP,
190 S. LaSalle Street,
Chicago, Illinois 60603
Facsimile: (+1 312) 706-8125
Attention: Douglas Doetsch
SECTION 9. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, OR PERFORMANCE THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10. Waiver of Sovereign Immunity. Grupo, in respect of itself, its Subsidiaries, their respective process agents, and their properties and revenues, hereby irrevocably agrees that, to the extent that Grupo, its Subsidiaries or any of their respective properties and revenues has or may hereafter acquire any right of immunity of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise, and whether characterized as sovereign immunity or otherwise), whether in the United States, the Country or elsewhere, to enforce or collect upon the this Agreement, the other Transaction Documents, or any other liability or obligation of Grupo of any of its Subsidiaries related to or arising from the transactions contemplated by this Agreement or the other Transaction Documents, including without limitation immunity from service of process, immunity from jurisdiction or judgment of any court or tribunal, immunity from execution of a judgment, and immunity of any of its property from attachment prior to any entry of judgment, or from attachment in aid of execution upon a judgment, Grupo, for itself and on behalf of its Subsidiaries, hereby expressly and irrevocably waives any such immunity in respect of its obligations under this Agreement and the other Transaction Documents, and, agrees, without limiting the generality of the foregoing, (i) that the waivers set forth in this Section 11 shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the
United States and are intended to be irrevocable for purposes of such Act, and
(ii) not to assert any such right or claim in any such proceeding, whether in
the United States, the Country or elsewhere.
SECTION 11. English Language. This Agreement has been negotiated and executed in the English language. The English language version of this Agreement and each other Transaction Document shall control and be conclusive as to the meaning of any terms and provisions hereof or thereof except in connection with the enforcement thereof in the Country as may be required by Argentine law. All agreements, documents, certificates, reports or notices to be delivered or communications to be given or made by any party hereto pursuant to the terms of any Transaction Document shall be in the English language or, if originally written in another language, shall be accompanied by an accurate English translation upon which the other parties hereto shall have the right to rely for all purposes of this Agreement and the other Transaction Documents.
SECTION 12. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 13. Remedies. Each of the undersigned acknowledges that damages would not be an adequate remedy for any breach of the provisions of this Agreement and that, in addition to all other remedies available at law, injunction, specific performance and any other form of equitable relief shall be available to enforce the provisions of this Agreement.
SECTION 14. Third Party Beneficiaries. The parties to the Transaction Documents or Other Documents that are not parties to this Agreement are intended third party beneficiaries of this Agreement.
SECTION 15. Agents. The Note Purchase Agreement Agent and the New Trade Credit Agreement Agent shall have no duties or responsibilities except for those that are expressly set forth in the other Transaction Documents or in the Other Documents to which they, respectively, are parties. The Note Purchase Agreement Agent, the New Trade Credit Agreement Agent, and the Documentation Agent shall have no responsibility for any recital, statement, representation or warranty made in any Transaction Document or any Other Document by any other party thereto or for the failure of any other party to any Transaction Document or any Other Document to perform its obligations thereunder.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above by their duly authorized officers.
GRUPO FINANCIERO GALICIA S.A.
By: /s/ Pedro Richards --------------------------------- Name: Pedro Richards --------------------------------- Title: Gerente --------------------------------- |
S-1 Grupo Galicia Agreement
INTERNATIONAL FINANCE CORPORATION
By: /s/ Jyrki I. Koskelo ----------------------------------- Name: Jyrki I. Koskelo ----------------------------------- Title: Director, Global Financial Markets ----------------------------------- By: Name: ----------------------------------- Title: ----------------------------------- |
S-2 Grupo Galicia Agreement
INTER-AMERICAN INVESTMENT CORPORATION By: /s/ Steven L. Reed -------------------------------- Name: STEVEN L. REED -------------------------------- Title: Acting General Manager -------------------------------- |
S-3 Grupo Galicia Agreement
COMMODITY CREDIT CORPORATION
By: /s/ James R. Little ------------------------------------- Name: James R. Little Title: Executive Vice President By: /s/ Kristine M. Chadwick ------------------------------------- Name: Kristine M. Chadwick Title: Controller |
S-4 Grupo Galicia Agreement
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS NOTE PURCHASE AGREEMENT AGENT AND
AS NEW TRADE CREDIT AGREEMENT AGENT
By: /s/ Wanda Camacho ------------------------------------ Name: Wanda Camacho Title: Vice President By: /s/ Cynthia J. Powell ------------------------------------- Name: Cynthia J. Powell Title: Assistant Vice President |
S-5 Grupo Galicia Agreement
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of _________ __, 2004 of Grupo Financiero Galicia S.A., an Argentine corporation (the "Company") for the benefit of the Holders (as defined below). In order to induce the creditors to participate in the debt restructuring (the "Restructuring") of Banco de Galicia y Buenos Aires S.A., a subsidiary of the Company, the Company has agreed for the benefit of the Holders to provide the registration rights set forth in this Agreement.
The Company agrees that for the benefit of the beneficial owners from time to time of the Preferred Shares (as defined herein) and any securities into or for which such Preferred Shares has been converted or exchanged, and the beneficial owners from time to time thereof (each of the foregoing a "Holder" and together the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without definition shall have their respective meanings set forth in the Pricing Supplement. As used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means with respect to any specified person, an "affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close.
"Common Stock" means the ordinary "B" shares of the Company, with Ps. 1.00 par value per share.
"Company" has the meaning set forth in the first paragraph hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the Effectiveness Deadline Date and ending on September 30, 2005.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a) hereof.
Exhibit A-1 Grupo Galicia Agreement
"Holder" has the meaning set forth in the second paragraph of this Agreement.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means the date the preferred shares of the Company are issued to the Holders, which preferred shares are automatically convertible into the Common Stock, on the first anniversary of the Issue Date.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notice and Questionnaire" means a written notice delivered to the Company containing substantially the information called for by the Selling Securityholder Notice and Questionnaire distributed by the Company to the Holders prior to the Effectiveness Deadline Date.
"Notice Holder" means, on any date, any Holder that has delivered a Notice and Questionnaire to the Company on or prior to such date.
"Preferred Shares" means preferred shares of the Company which are held by persons other than Regulation S investors (as defined in the Pricing Supplement) issued pursuant to the equity prospectus dated April 26, 2004 which will be automatically converted into Common Stock on the first (1st) anniversary date of their issuance or, if earlier, on the occurrence of a change of control of the Company.
"Pricing Supplement" means the pricing supplement, dated December 23, 2003, as supplemented on March 18, 2004 and April 6, 2004, relating to the Restructuring.
"Prospectus" means the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any amendment or prospectus supplement, including post-effective amendments, and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such Prospectus.
"Registrable Securities" means the Common Stock resulting from conversion of the Preferred Shares pursuant to the terms thereof and any securities into or for which such Common Stock has been converted or exchanged, and any security issued with respect thereto upon any stock dividend, split or similar event until, in the case of any such security, (A) the earliest of (i) such Common Stock's effective registration under the Securities Act and resale in accordance with the Registration Statement covering it, (ii) two years from the effectiveness of the Initial Shelf Registration Statement or (iii) the time at which Rule 144 (or any similar provision then in force, but not Rule 144A) becomes available for the Holder to immediately freely resell under the Securities Act without restriction all Registrable Securities held by it, and (B) as a result of the event or circumstance described in any of the foregoing clauses (i) through (iii), the legend with respect to transfer restrictions described in the Pricing Supplement is removed or removable in accordance with the terms of such legend.
Exhibit A-2 Grupo Galicia Agreement
"Registration Statement" means any registration statement of the Company that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits and all materials incorporated by reference or explicitly deemed to be incorporated by reference in such registration statement.
"Restricted Securities" means "restricted securities" as defined in Rule 144.
"Restructuring" has the meaning set forth in the first paragraph hereof.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.
"Special Counsel" means Mayer, Brown, Rowe & Maw LLP or one such
other successor counsel as shall be specified by the Holders of a majority of
the Registrable Securities, but which may be another nationally recognized law
firm experienced in securities law matters designated by the Company that is
approved by the Holders of a majority of the Registrable Securities, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof.
"Subsequent Shelf Registration Statement" has the meaning set forth in Section 2(b) hereof.
SECTION 2. Shelf Registration. (a) The Company shall prepare and file or cause to be prepared and filed with the SEC, not later than the date (the "Filing Deadline Date") that is one hundred eighty (180) days after the Issue Date, a Registration Statement for an offering to be made on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale from time to time by Holders thereof of all of the Registrable Securities (the "Initial Shelf Registration Statement") permitted under applicable law to be registered thereon. The Initial Shelf Registration Statement shall be on Form F-1 or another appropriate form permitting registration of such Registrable Securities for resale by such Holders in accordance with the methods of distribution elected by the Holders and set forth in the Initial Shelf Registration Statement and will use its reasonable best efforts to cause such registration statement as amended to become effective under the Securities Act as promptly as is reasonably practicable thereafter; provided, however, that if the Company files the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement on Form F-1 and subsequently becomes eligible to use Form F-3, it will file a post-effective amendment to such Form F-1 on Form F-3 prior to the end of the fiscal year in which it becomes eligible to use such Form F-3. The Company shall use its reasonable best efforts to cause the Initial Shelf Registration Statement to be declared effective under the Securities Act by no later than June 1, 2005 (the
Exhibit A-3 Grupo Galicia Agreement
"Effectiveness Deadline Date"), and to keep the Initial Shelf Registration Statement (or any Subsequent Shelf Registration Statement (as defined below)) continuously effective under the Securities Act until the expiration of the Effectiveness Period. At the time the Initial Shelf Registration Statement is declared effective, each Holder that is a Notice Holder or its nominee, as applicable, shall be named as a selling security holder in the Initial Shelf Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of Registrable Securities in accordance with applicable law. None of the Company's security holders (other than the Holders of Registrable Securities) shall have the right to include any of the Company's securities in the Initial Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because all Registrable Securities registered thereunder shall have been resold pursuant thereto or shall have otherwise ceased to be Registrable Securities), the Company shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall within thirty (30) Business Days of such cessation of effectiveness amend the Initial Shelf Registration Statement in a manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness thereof, and file an additional registration statement covering all of the securities that as of the date of such filing are Registrable Securities (a "Subsequent Shelf Registration Statement"). If a Subsequent Shelf Registration Statement is filed, the Company shall use its reasonable best efforts to cause the Subsequent Shelf Registration Statement to become effective as promptly as is reasonably practicable after such filing and to keep such Registration Statement (or Subsequent Shelf Registration Statement) continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend (including by means of a post-effective amendment) a Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Registration Statement, if required by the Securities Act or Exchange Act or as necessary to name a Notice Holder as a selling security holder pursuant to Section (d) below.
(d) Each Holder agrees that if such Holder wishes to sell Registrable Securities pursuant to a Registration Statement and related Prospectus, it will do so only in accordance with this Agreement. Following the date that the Initial Shelf Registration Statement is declared effective, each Holder wishing to sell Registrable Securities pursuant to a Registration Statement and related Prospectus agrees to deliver a Notice and Questionnaire pursuant to Section 4, which Notice and Questionnaire shall be provided to Holders at least fifteen (15) days prior to the effective date of the Initial Shelf Registration Statement and any Subsequent Shelf Registration Statement, unless a Notice and Questionnaire has previously been delivered to the Company. From and after the date the Initial Shelf Registration Statement is declared effective, the Company shall, as promptly as practicable after the date a Notice and Questionnaire is delivered pursuant to Section 8(c), and in any event upon the later of (x) five (5) Business Days after such date or (y) five (5) Business Days after the expiration of any Deferral Period in effect when the Notice and Questionnaire is delivered or put into effect:
(i) if required by applicable law, file with the SEC a post-effective amendment to a Registration Statement or prepare and, if required by applicable
Exhibit A-4 Grupo Galicia Agreement
law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file any other required document so that the Holder delivering such Notice and Questionnaire is named as a selling security holder in the applicable Registration Statement and the related Prospectus in such a manner as to permit such Notice Holder to deliver such Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if the Company shall file a post-effective amendment to the Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act within thirty days after the filing of the post-effective amendment, (the "Amendment Effectiveness Deadline Date");
(ii) promptly following the Amendment Effectiveness Deadline, provide such Holder copies of any Prospectus or supplement or amendment thereto filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as is reasonably practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 2(d)(i);
provided, that if such Notice and Questionnaire is delivered during a Deferral Period, the Company shall so inform the Holder delivering such Notice and Questionnaire and shall, to the extent required, take the actions set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral Period in accordance with Section 3(h). Notwithstanding anything contained herein to the contrary, if a Deferral Period shall be in effect on the Amendment Effectiveness Deadline Date (i) the Company shall be under no obligation to name any Holder that is not a Notice Holder as a selling security holder in any Registration Statement or related Prospectus until the expiration of the relevant time period specified in Section 2(d), provided, however, that the Company shall use its reasonable best efforts to name such Holder as a selling security holder as soon as is otherwise practicable and (ii) the Company shall use its reasonable best efforts to cause any post-effective amendment filed by the Company to be declared effective under the Securities Act within thirty days after the expiration of a Deferral Period.
SECTION 3. Registration Procedures. In connection with the registration obligations of the Company under Section 2 hereof, from the date hereof until the expiration of the Effectiveness Period, the Company shall:
(a) Prepare and file, subject to the provisions of Section 2(a) hereof, with the SEC a Registration Statement or Registration Statements on Form F-1 or another appropriate form under the Securities Act available for the sale of the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and use its reasonable best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided that before filing the Initial Shelf Registration Statement with the SEC, furnish to the Special Counsel of such offering, if any, copies of all such documents proposed to be filed at
Exhibit A-5 Grupo Galicia Agreement
least three (3) Business Days prior to the filing of such Initial Shelf Registration Statement or amendment thereto or Prospectus or supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable period specified in Section 2(a); cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and use its reasonable best efforts to comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such Registration Statement during the Effectiveness Period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders,
(i) when any Prospectus, prospectus supplement, Registration Statement or
post-effective amendment to a Registration Statement has been filed with
the SEC and, with respect to a Registration Statement or any
post-effective amendment, when the same has been declared effective, (ii)
of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other
federal or state governmental authority for amendments or supplements to
any Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or
state governmental authority of any stop order suspending the
effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by
the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, (v) of the occurrence of, but not the
nature of or details concerning, a Material Event or (vi) of the
determination by the Company that a post-effective amendment to a
Registration Statement will be filed with the SEC, which notice may, at
the discretion of the Company (or as required pursuant to Section 3(h)),
state that it constitutes a Deferral Notice, in which event the provisions
of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment, and provide immediate notice to each Notice Holder and the Special Counsel of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder and the Special Counsel, upon request and without charge, at least one conformed copy of the Registration Statement and any amendment thereto, including exhibits and all documents incorporated or deemed to be incorporated therein by reference.
Exhibit A-6 Grupo Galicia Agreement
(f) During the Effectiveness Period, deliver to each Notice Holder and, upon request, the Special Counsel, in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder and Special Counsel may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the Notice Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice Holder's offer and sale of Registrable Securities pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not be required to qualify but for this paragraph (g), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction.
(h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of a Registration Statement or the initiation of proceedings with respect to a Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a "Material Event") as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (C) the occurrence or existence of any pending corporate development that, in the sole and reasonable judgment of the Company upon the receipt of an appropriate opinion from counsel to the Company, makes it appropriate to suspend the availability of a Registration Statement and the related Prospectus, including, without limitation, the determination by the Company that a post-effective amendment to a Registration Statement is required to be filed or (D) the issuance of a notification by the SEC to the Company that has the effect of, or upon the Company's reasonable determination following the receipt of advice of counsel satisfactory to the
Exhibit A-7 Grupo Galicia Agreement
Holders that the rules and regulations of the SEC have the effect of, requiring the Company to identify Notice Holders as selling security holders in the Registration Statement by means of a post-effective amendment to the Registration Statement:
(i) in the case of clause (B) above, subject to the next sentence, as promptly as reasonably practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use its reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) in the case of any of clauses (A) through (D) above, give notice to the Notice Holders, and the Special Counsel, if any, that the availability of a Registration Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus.
The Company will use its reasonable best efforts to ensure that the use of
the Prospectus may be resumed or commence, as applicable (x) in the case
of clauses (A) and (D) above, as promptly as is reasonably practicable,
(y) in the case of clause (B) above, as soon as, in the sole and
reasonable judgment of the Company, public disclosure of such Material
Event would not be prejudicial to or contrary to the interests of the
Company or, if necessary to avoid unreasonable burden or expense, as soon
as reasonably practicable thereafter and (z) in the case of clause (C)
above, as soon as in the sole and reasonable judgment of the Company upon
the receipt of an appropriate opinion from counsel to the Company, such
suspension is no longer appropriate or required under applicable law. The
Company shall be entitled to exercise its right under this Section 3(h) to
suspend the availability of the Registration Statement or any Prospectus
and, subject to clause (z) below, any such period during which the
availability of the Registration Statement and any Prospectus is suspended
(the "Deferral Period") shall not exceed 5 days; provided that the
aggregate duration of any Deferral Periods shall not exceed 25 days in any
120-day period (or 45 days in any 120-day period in the event of a
Material Event pursuant to
Exhibit A-8 Grupo Galicia Agreement
which the Company has delivered a second notice as permitted below); (y)
in the case of a Material Event relating to an acquisition or a probable
acquisition or financing, recapitalization, business combination or other
similar transaction, the Company may deliver to Notice Holders a second
notice to the effect set forth above, which shall have the effect of
extending the Deferral Period by up to an additional 5 days, or such
shorter period of time as is specified in such second notice; or (z) in
the case of clause (D) above, the Company shall use its reasonable best
efforts to terminate such Deferral Period as promptly as is reasonably
practicable but shall not be subject to the provisions of clauses (x) and
(y) of this sentence. Each Notice Holder agrees to hold any notice by the
Company in respect of any Deferral Period or Material Event described in
clause (y) of the preceding sentence in confidence.
(i) If requested in writing in connection with an underwritten
disposition of Registrable Securities pursuant to a Registration
Statement, make reasonably available for inspection during normal business
hours by a representative for the underwriters of such Registrable
Securities, any attorneys and accountants retained by such underwriters
all relevant financial and other records and pertinent corporate documents
and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal
business hours on reasonable notice all relevant information reasonably
requested by such representative for such underwriters, or any attorneys
or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided that such
persons shall first agree in writing with the Company that any non-public
information shall be kept confidential by such persons and shall be used
solely for the purposes of exercising rights under this Agreement, unless
(i) disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities,
(ii) disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in connection
with the filing of any Registration Statement or the use of any prospectus
referred to in this Agreement), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard by any such person or (iv) such information becomes available
to any such person from a source other than the Company and such source is
not known to be bound by a confidentiality agreement, and provided further
that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of all underwriters and
the other parties entitled thereto by the Special Counsel. Any person
legally compelled to disclose any such confidential information made
available for inspection shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
(j) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and, if required, provide the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
Exhibit A-9 Grupo Galicia Agreement
(k) Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc.
(l) Use its reasonable best efforts to list all Registrable Securities sold pursuant to a Registration Statement on the Nasdaq Small Cap Market.
(m) Use its reasonable best efforts to comply with the Securities
Act in connection with the offer and sale of the Registrable Securities to
be sold pursuant to a Registration Statement, and, make available to its
security holders, as soon as reasonably practicable, an earning statement
covering at least twelve (12) months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
(n) If required to complete the sale, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing their Registrable Securities to be sold pursuant to a Registration Statement and not bearing any legends; and enable certificates for such Registrable Securities to be issued for such numbers of shares and registered in such names as such Holders may reasonably request at least two (2) business days prior to any sale of their Registrable Securities.
(o) Enter into customary agreements (including an underwriting agreement or securities sales agreement, if any, in customary form) containing such representations and warranties to the Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings as may be reasonably requested of them and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities.
(p) Furnish to each registering Holder of Registrable Securities and to each underwriter, if any, a signed counterpart, addressed to such registering Holder of Registrable Securities or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Holders of a majority of the Registrable Securities included in such offering or the managing underwriters therefore reasonably request; and
SECTION 4. Holder's Obligations. Each Holder agrees, by acquisition of the Registrable Securities, that no Holder shall be entitled to sell any of such Registrable Securities pursuant to a Registration Statement or to receive a Prospectus relating thereto, unless such Holder has furnished the Company with a Notice and Questionnaire as required pursuant to Section 2(d) hereof.
Each Notice Holder agrees promptly to furnish to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Notice Holder not misleading and any other information regarding such Notice Holder and the distribution of such Registrable Securities as the Company may from time to time reasonably request. Any sale of any Registrable Securities by any Holder shall constitute a
Exhibit A-10 Grupo Galicia Agreement
representation and warranty by such Holder that the information relating to such Holder and its plan of distribution is as set forth in the Prospectus delivered by such Holder in connection with such disposition, that such Prospectus does not as of the time of such sale contain any untrue statement of a material fact relating to or provided by such Holder or its plan of distribution and that such Prospectus does not as of the time of such sale omit to state any material fact relating to or provided by such Holder or its plan of distribution necessary to make the statements in such Prospectus, in the light of the circumstances under which they were made, not misleading.
Each Holder acknowledges and agrees that a Notice and Questionnaire will only be valid for a period of 30 Business Days commencing with the proposed sales date and that if any of the Registrable Securities to which such Notice and Questionnaire relates are not sold during such period, a new Notice and Questionnaire will need to be submitted to the Company not later than five (5) Business Days prior to the new proposed sales date. Notwithstanding the foregoing, no Notice and Questionnaire may be submitted, or if submitted will be of no force and effect, and no Registrable Securities may be sold pursuant to the Registration Statement if a Deferral Period is then in effect.
SECTION 5. Registration Expenses. The Company shall bear all fees and expenses incurred in connection with the performance by the Company of its obligations under Sections 2 and 3 of this Agreement whether or not any Registration Statement is declared effective. Such fees and expenses shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (x) with respect to filings required to be made with the National Association of Securities Dealers, Inc. and (y) of compliance with federal and state securities or Blue Sky laws (including, without limitation, reasonable fees and disbursements of the Special Counsel in connection with Blue Sky qualifications of the Registrable Securities under the laws of such jurisdictions as Notice Holders may designate pursuant to Section 3(g) of this Agreement and any filings required to be made with the National Association of Securities Dealers, Inc.), (ii) printing expenses, (iii) duplication expenses relating to copies of any Registration Statement or Prospectus delivered to any Holders hereunder, (iv) reasonable fees and disbursements of counsel for the Company and of the Special Counsel in connection with any Registration Statement; provided, that the reimbursement of fees to Special Counsel shall be limited to $25,000, and (v) any Securities Act liability insurance obtained by the Company in its sole discretion. In addition, the Company shall pay the internal expenses of the Company (including, without limitation, all salaries and expenses of officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing by the Company of the Registrable Securities on any securities exchange on which similar securities of the Company are then listed and the fees and expenses of any person, including special experts, retained by the Company. Notwithstanding the provisions of this Section 5, each seller of Registrable Securities shall pay selling expenses, including any underwriting discount and commissions, and all registration expenses to the extent required by applicable law.
SECTION 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder, each person, if any, who controls any Holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of
Exhibit A-11 Grupo Galicia Agreement
any Holder within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Holder furnished to the Company in writing by such Holder expressly for use therein; provided that the indemnification contained in this paragraph shall not inure to the benefit of any Holder (or to the benefit of any affiliate of such Holder or any person controlling such Holder) on account of any such losses, claims, damages or liabilities caused by any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement; provided in each case the Company has performed its obligations under Section 3(f) hereof if either (A) (x) such Holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale by such Holder to the person asserting the claim from which such losses, claims, damages or liabilities arise and (y) the Prospectus would have corrected such untrue statement or alleged untrue statement or such omission or alleged omission, or (B) (x) such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the Prospectus and (y) having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such Holder thereafter fails to deliver such Prospectus as so amended or supplemented, with or prior to the delivery of written confirmation of the sale of a Registrable Security to the person asserting the claim from which such losses, claims, damages or liabilities arise.
(b) Indemnification by Holders. Each Holder agrees severally and not jointly to indemnify and hold harmless the Company and its directors, its officers and each person, if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act) and each affiliate of the Company within the meaning of Rule 405 under the Securities Act or any other Holder, to the same extent as the foregoing indemnity from the Company to such Holder, but only with reference to information relating to such Holder furnished to the Company in writing by such Holder expressly for use in such Registration Statement or Prospectus or amendment or supplement thereto. In no event shall the liability of any Holder hereunder be greater in amount than the dollar amount of the proceeds received by such Holder upon the sale of the Registrable Securities pursuant to the Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b) hereof, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding. In
Exhibit A-12 Grupo Galicia Agreement
any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority of the Registrable Securities covered by the
Registration Statement held by Holders that are indemnified parties pursuant to
Section 6(a) and, in the case of parties indemnified pursuant to Section 6(b),
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability
by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
(d) Contribution. To the extent that the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company shall be deemed to be equal to the aggregate face value of the subordinated notes (as defined in the Pricing Supplement) that are being used by Holders to purchase Preferred Shares as part of the equity participation offer (as defined in the
Exhibit A-13 Grupo Galicia Agreement
Pricing Supplement), before deducting expenses. The relative benefits received by any Holder shall be deemed to be equal to the value of receiving Registrable Securities that are registered under the Securities Act. The relative fault of the Holders on the one hand and the Company on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Holders or by the Company, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Holders' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective number of Registrable Securities they have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding this Section 6, no indemnifying party that is a selling Holder shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities sold by it and distributed to the public were offered to the public exceeds the amount of any damages that such indemnifying party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to an indemnified party at law or in equity, hereunder or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder, any person controlling any Holder or any affiliate of any Holder
or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
SECTION 7. Information Requirements. The Company covenants that, if at any time before the end of the Effectiveness Period the Company is not subject to the reporting requirements of the Exchange Act, it will cooperate with any Holder and take such further commercially reasonable action as any Holder may reasonably request in writing (including, without limitation, making such reasonable representations as any such Holder may reasonably request), all to the extent required from time to time to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 and Rule 144A under the Securities Act and customarily taken in connection with sales pursuant to such exemptions. Upon the written request of any Holder, the Company shall deliver to such Holder a written statement as to whether it has complied with
Exhibit A-14 Grupo Galicia Agreement
such filing requirements, unless such a statement has been included in the Company's most recent report filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to require the Company to register any of its securities (other than the Common Stock) under any section of the Exchange Act.
SECTION 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor shall it, on or after the date of this Agreement, enter into, any agreement with respect to its securities that conflicts with the rights granted to the Holders in this Agreement. The Company represents and warrants that the rights granted to the Holders hereunder do not in any way conflict with the rights granted to the holders of the Company's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Registrable Securities. Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of at least a majority of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence. Notwithstanding the
foregoing sentence, this Agreement may be amended by written agreement signed by
the Company and the Holders, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained herein that may be defective or inconsistent with any other provision
contained herein, or to make such other provisions in regard to matters or
questions arising under this Agreement that shall not adversely affect the
interests of the Holders of Registrable Securities. Each Holder of Registrable
Securities outstanding at the time of any such amendment, modification,
supplement, waiver or consent or thereafter shall be bound by any such
amendment, modification, supplement, waiver or consent effected pursuant to this
Section 8(b), whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by such Holder to the Company in a Notice and Questionnaire or any amendment thereto:
Exhibit A-15 Grupo Galicia Agreement
with a copy to (which shall not constitute notice):
Mayer, Brown, Rowe & Maw LLP 190 South LaSalle Street Chicago, IL 60603 Attention: Douglas Doetsch, Esq.
Fax No.: (312) 701-7711
(ii) if to the Company, to:
Grupo Financiero Galicia S.A.
Tte. Gral. Jua D. Peron 407, 2 Piso
C1038AA1 Buenos Aires
Argentina
Attention: Pedro Richards
Fax No.: 011-54-11-4-343-7528
with a copy to (which shall not constitute notice):
White & Case LLP
New York, NY 10036
Attention: Priscilla Almodovar, Esq.
Fax No.: (212) 354-8113
or to such other address as such person may have furnished to the other persons identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) (other than subsequent Holders if such subsequent Holders are deemed to be such affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted in either the numerator or denominator in determining whether such consent or approval was given by the Holders of such required percentage.
(e) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties and shall inure to the benefit of and be binding upon each Holder of any Registrable Securities. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities, such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed
Exhibit A-16 Grupo Galicia Agreement
shall be deemed to be original and all of which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term provision, covenant or restriction of this Agreement is held to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, and the parties hereto shall use their efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and the registration rights granted by the Company with respect to the Registrable Securities. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein, with respect to the registration rights granted by the Company with respect to the Registrable Securities. This Agreement supersedes all prior agreements and undertakings among the parties with respect to such registration rights. No party hereto shall have any rights, duties or obligations other than those specifically set forth in this Agreement. In no event will such methods of distribution take the form of an underwritten offering of the Registrable Securities without the prior agreement of the Company.
(k) Termination. This Agreement and the obligations of the parties hereunder shall terminate upon the end of the Effectiveness Period, except for any liabilities or obligations under Section 4, 5 or 6 hereof, which shall remain in effect in accordance with its terms.
(l) Specific Performance. In the event that the Company fails to perform any of its obligations under this Agreement, any Holder shall be entitled, in addition to any other remedies as may be available to such Holder at law or in equity, to seek specific performance of the Company's obligations hereunder.
Exhibit A-17 Grupo Galicia Agreement
IN WITNESS WHEREOF, the Company has executed this Agreement for the benefit of the Holders as of the date first written above.
GRUPO FINANCIERO GALICIA S.A.
By:____________________________
Name:
Title:
Exhibit A-18 Grupo Galicia Agreement