ORDINANCE No 2493/98
Sets conditions for the transfer of credits to special purpose corporations.
THE CENTRAL BANK OF BRAZIL, pursuant to article 9 of Law 4,595, dated Dec. 31, 1964, states that the NATIONAL MONETARY COUNCIL, at its session held on May 6, 1998, pursuant to article 4, items VI and VIII, of the above mentioned Law, and article 23 of Law 6,099, dated Sep 12, 1974, as amended by Law º 7.132, dated Oct 26, 1983,
Art. 1 To authorize the transfer of credits arising from loan, financing and lease operations contracted by universal banks, commercial banks, investment banks, credit, financing and investment companies, real estate credit companies, lease companies and mortgage companies to corporations whose sole purpose is the acquisition of such credits.
Paragraph 1 The transfer dealt with under the present article may only be effected with a corporation:
I – whose corporate name contains the expression "Companhia Securitizadora de Créditos Financeiros (Financial Credits Securitization Company)";
II – who collects resources exclusively by means of:
a) domestically, the issuance of debentures for public distribution and shares;
b) abroad, the issuance of securities or stock, as per the laws and regulations in force;
III – whose by-laws and securities or stock issuance instruments determine that, until final settlement of the obligations such securities or stock represent, the following acts are voided:
a) stock-control transfer;
b) stock capital reduction, incorporation, merger, spin-off or termination;
c) transfer of the credits or pledge or placement of any burden on same, in favor of the majority stockholder or any person connected thereto, under conditions other than those set forth on the securities or stock issuance instruments;
IV – who acquires foreign exchange rate-connected credits solely by means of the use of funds collected through the issuance, abroad, of securities or stock.
Paragraph 2 The contents of Paragraph 1, item III, shall not apply in the event of the previous consent of the holders of fifty percent (50%) or more of the nominal worth of said securities and stock, with the exclusion of those held by the majority stockholder or an affiliate thereof, in the course of general meeting specifically called for this purpose and held pursuant to the norms applicable to meetings of publicly listed corporations debentures holders.
Paragraph 3 Regardless of the contents of Paragraph 2, the transfer dealt with under Paragraph 1, III, may only take place at an amount equal to or in excess of the nominal worth of such credits, with the deduction of not yet accrued interest and financial burdens incorporated to the nominal worth as discount, calculated pro rata the number of days to term.
Article 2 The transfer mentioned under article 1:
I – shall not be subject to the restrictions under Ordinance No 1,962, dated Aug 27, 1992, and may comprehend abnormal credits, under conditions such as freely agreed between the parties;
II – shall not sport the transferor or affiliates thereof as joint obligees;
III – shall imply the transfer, to the transferee, of the contracts, title, instruments and guarantees required for performance.
Paragraph 1 The following are voided:
I – transfer of term credits to a securitization company with whom the transferor may be connected as per articles 34 of Law 4,595, dated Dec 31, 1964 and 17 of Law 7,492, dated June 16, 1986;
II – the repurchase, by t he transferor institution, of previously transferred credits or the acquisition of securities or stock issued based on such credits, as well as the performance of any transaction later than the respective transfer that may bring, even tough indirectly, the risk back to the transferor institution.
Paragraph 2 Where the transfer is made with settlement at a later date, provisioning of the credits transferred shall be maintained until final settlement of the operation.
Paragraph 3 Where the transfer includes credits which are the object of credit contingency face to the public sector, same shall remain computed by the transferor institution pursuant to the limits set under Ordinances 2,443, dated Nov 14, 1997 and 2,461, dated Dec 26, 1997, until the respective settlement.
Article 3 At the issuance of debentures as set forth under article 1, Paragraph 1, item II, sub-item "a", a universal bank with commercial and/or investment portfolio, a commercial bank or an investment bank shall be named as fiduciary agent, save where the securitization company is controlled by one of the institutions listed under the caption of article 1.
Article 4 Payment of yield, amortization and liquidation of the securities and stock referred under Article 1, Paragraph 1, item II, are contingent upon the realization of the credits specified under the respective issuance instrument, observing the possibility of the granting of additional guarantees to said securities and stock.
Sole Paragraph. The securities and stock issuance instrument shall provision for:
I – the possibility of the respective redemption taking place, partially or in full, through the pledge of the credits specified under the respective issuance instrument and not realized at the respective term;
II – the treatment to be dealt should abnormal credits be settled fully or in part by means of pledge of assets or should the debtors be declared bankrupt or insolvent or should they enter into liquidation procedures.
Art. 5º The Central Bank of Brazil and the Securities Commission are hereby authorized to, in their respective fields of competence, take the measures and issue the norms required for the performance of the contents of the present Ordinance, and the Central Bank of Brazil may rule on the treatment to be dealt credits of institutions undergoing out-of-court liquidation.
Art. 6º This Ordinance shall enter into force on the date of its publication.
Art. 7º Ordinance 2.026, dated Nov 24, 1993, is hereby revoked.
Brasília, May 7, 1998
Gustavo H. B. Franco
More on legal developments:
There is another Ordinance (Resolution 2.686, dated January 26, 2000) which regulates the securitization of credits arising from financial institutions designed to provide an interesting and efficient mechanism for banks assets management through the sale of loans. It defines the possibility of "transfer of credits, through assignment of credits, arising from loan, financing and lease operations contracted by universal banks, commercial banks, investment banks, credit, financing and investment companies, real estate credit companies, lease companies and mortgages companies to corporations whose sole purpose is the acquisition of such credits."