Amendment to CVM Instruction No. 356 of December 17, 2001

Amends CVM Instruction No. 356, of December 17, 2001, which regulates the constitution and operation of investment funds in credit rights and of investment funds in shares of investment funds in credit rights.

The PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Board, in a meeting held on this date, and considering the provisions of Arts. 2, item IX, and 19 of Law No. 6,385, of December 7, 1976, and of Resolution of the National Monetary Council No. 2,907, of November 29, 2001, HAS DECIDED TO ISSUE THE FOLLOWING INSTRUCTION:

Art. 1 The Arts. 2, 3, 6, 8, 9, 11, 12, 14, 15, 16, 17, 20, 23, 24, 31, 38, 40, 45, 46, 55 and 56 of CVM Instruction No. 356, of December 17, 2001, shall enter into force with the following wording:

“Art. 2 ......
I – credit rights: the rights and titles representing credit, originating from operations carried out in the financial, commercial, industrial, real estate, mortgage, leasing, and service provision segments, the contracts referred to in § 8 of Art. 40 of this Instruction, as well as rights and titles representing credits of a different nature so recognized by the CVM;
......
VI – closed fund: the condominium whose shares are redeemed only at the end of the duration period of the fund or of each series or class of shares, as stipulated in the regulations, or due to its liquidation, admitting, furthermore, the amortization of shares by provision of the regulations or by decision of the general meeting of shareholders;
......
XI – senior class share: that which does not subordinate itself to others for purposes of amortization and redemption; XII – subordinated class share: that which subordinates itself to others for purposes of amortization and redemption; XIII – series: subsets of shares of the senior class of closed funds, differentiated exclusively by terms and values for amortization, redemption, and remuneration, if any;

XIV – amortization: is the payment to the shareholders of the closed fund of a portion of the value of their shares, without reducing their number.” (NR)

“Art. 3 ......
III – each class or series of shares issued by it intended for public offering must be classified by a risk rating agency operating in the Country; ......” (NR)

“Art. 6 The terms for amortization or redemption must be established, in the fund's regulations, regarding each class and series of shares." (NR)

“Art. 8 The operation of funds regulated by this Instruction depends on prior registration with the CVM.
§1 Registration will be automatically granted upon protocol submission to the CVM of the following documents and information:
I – act of constitution and the full text of its regulations, in 3 (three) copies, duly initialled and signed, accompanied by a certificate proving its registration in the deeds and documents registry; II – two copies of the prospectus; III – disclosure material to be used in the distribution of fund shares; IV – name of the independent auditor, custodian, and risk rating agency, hired by the fund administrator; V – designation of a director or managing partner of the administering institution, in accordance with current regulations, to respond, civilly and criminally, for the management, supervision, and monitoring of the fund, as well as for providing information related thereto; VI – declaration signed by the director or managing partner, designated pursuant to the preceding item, stating that:
a) he/she is aware of his/her obligations towards the fund; b) he/she is responsible for the movement of credit rights; c) he/she is responsible, in accordance with current legislation, including towards third parties, for negligence, imprudence, or lack of skill in the administration of the fund, subjecting himself/herself, furthermore, to the application of penalties provided for in Art. 11 of Law No. 6,385, of December 7, 1976. VII – declaration signed by the fund administrator committing to follow the norms of this Instruction and that the regulations of said fund are in conformity with current legislation, in accordance with Annex I of this Instruction; VIII – registration form duly filled out in accordance with Annex II of this Instruction, for the fund administrator and, if applicable, for its portfolio manager. §2 In the case of closed funds, the documents provided for in Art. 20, §1, of this Instruction must also be presented. §3 The indicated director or managing partner, without prejudice to compliance with determinations established in current regulations, must prepare quarterly statements demonstrating that the operations practiced by the fund are in consonance with the investment policy provided for in its regulations and with the composition and diversification limits applicable to it, as well as that the negotiations were carried out at market rates. §4 The statements referred to in the preceding paragraph must be sent to the CVM and remain available to the condominium owners of the fund, as well as be examined during the realization of an independent audit. §5 For the purposes of the provision in § 3 of this article, the calendar of the civil year must be considered. §6 The automatic registration referred to in §1 of this article does not apply to funds that do not observe the provision in §8 of Art. 40 of this Instruction." (NR)

“Art. 9 ......
II – in the case of a closed fund, when, within a period of 180 (one hundred and eighty) days, counting from the protocol submission to the CVM of the documents referred to in Art. 8, items I to VIII, of this Instruction and in its respective first paragraph, the total amount of shares representing its initial assets has not been subscribed, except in the event of cancellation of the unplaced balance, before the aforementioned term, provided there is express provision in the regulations to this effect; III – in the event that the fund maintains an average net asset value lower than R$ 500,000.00 (five hundred thousand reais), for a period of 3 (three) consecutive months. §1 In the event provided for in item III of this article, the fund may alternatively be incorporated into another FIDC.

......” (NR)

“Art. 11. The fund's shares must be book-entry, kept in a deposit account in the name of their holders.” (NR)

“Art. 12. Senior shares shall have a single class, admitting classes of shares subordinated to senior shares, for purposes of amortization and redemption.
§1 In the case of closed funds, senior shares may be divided into series with differentiated values and terms for amortization, redemption, and remuneration.
§2 Each series of shares shall have the same characteristics and confer equal rights and obligations to their holders, in accordance with the regulations.
§3 In the event of liquidation of the fund, holders of senior shares shall have the right to share the assets in proportion to the values provided for amortization or redemption of the respective series and up to the limit of these same values, on the date of liquidation, being forbidden any type of preference, priority, or subordination among holders of senior shares. §4 It is forbidden to affect or link, under any title, a portion of the fund's assets to any class or series of shares.” (NR)

“Art. 14. The fund's shares must have their value calculated at least upon the monthly and annual financial statements, through the use of a methodology for calculating the value of credit rights and other financial assets comprising the respective portfolio, established in the fund's regulations (Art. 24, item XIII), according to consistent and verifiable criteria, supported by external and internal information that takes into consideration aspects related to the debtor, its guarantors, and the characteristics of the corresponding operation, adopting the market value, if available. Sole paragraph. The shares must be registered at the respective value for amortization or redemption, respecting the characteristics of each class or series, if any.” (NR)

“Art. 15. The subscription, amortization, and redemption of fund shares may be effected by check, payment order, debit and credit in checking account, document of order of credit, or other mechanism of transfer of resources authorized by the Central Bank of Brazil – BACEN. §1 Redemption of senior shares in credit rights is admitted, in accordance with the regulations, exclusively in the events of early liquidation of the fund. §2 Regarding subordinated shares, in accordance with the fund's regulations, subscription, amortization, and redemption may be effected in credit rights.

§3 For the purposes of the provision in §§ 1 and 2 of this article, during the validity of the Provisional Contribution on Movement or Transmission of Values and of Credits and Rights of a Financial Nature – CPMF, subscriptions, amortizations, and redemptions in credit rights must observe the following procedures:
I – the subscription of shares must be carried out through any mechanism of transfer of resources authorized by BACEN, concomitantly with the sale, by the assignor, of credit rights in value corresponding to the net amount subscribed, in the form and proportion established in the respective regulations and other applicable provisions; and II – the amortization and redemption of shares will be effected through any mechanism of transfer of resources authorized by BACEN simultaneously with the purchase, by the shareholder, of credit rights, in value corresponding to the net amount amortized or redeemed, in the form and proportion established in the respective regulations and other applicable provisions." (NR)

“Art. 16. In the issuance of open fund shares, the value of the share in force on the day itself or on the first subsequent business day after the effective availability of the resources entrusted by the investor to the administering institution, at its headquarters or branches, must be used, as provided in the respective regulations. ......” (NR)

“Art. 17. In the issuances of closed fund shares placed with the public, the subscription price may contemplate premium or discount over the value provided for amortization, as long as uniformly applied to all subscribers and calculated through a price discovery procedure in an organized market. Sole paragraph. Closed fund shares placed with investors must be registered for secondary negotiation in a stock exchange or in an organized over-the-counter market, with intermediaries ensuring that the acquisition of shares is made only by qualified investors.” (NR)

“Art. 20. The distribution of closed fund shares depends on specific registration with the CVM.
§1 Registration will be automatically granted upon protocol submission to the CVM of the following documents and information, which must be presented for each new distribution:
I – declaration, from the fund administrator, that he/she entered into a contract with an institution legally qualified to execute the service of distribution of shares, when applicable; II – information regarding the maximum and minimum number of shares to be distributed, the value of the issuance, distribution costs, and other relevant information about the distribution;

III – disclosure material to be used in the distribution of fund shares, including prospectus, if any; IV – any additional information that becomes available to potential investors.
§2 The announcement of the start of distribution of closed fund shares must contain:
I – name of the fund;
II – name and address of the fund administrator; III – name and address of the institutions responsible for distribution; IV – investment policy and main characteristics of the fund; V – risk classification, in accordance with Art. 3, item III, of this Instruction; VI – market where the fund's shares are negotiated; VII – conditions for subscription and funding of shares; VIII – date of the start of distribution; IX – clarification that more information and copies of the prospectus and regulations can be obtained at the institutions responsible for the distribution of shares or at the CVM; X – the reference of the protocol submission to the CVM of the documents referred to in § 1 of this article; and XI – the statements, in a prominent manner: "The CVM does not guarantee the truthfulness of the information provided and, nor does it make judgment on the quality of the fund, its administrator, or the shares to be distributed". §3 The closed fund may carry out simultaneous distribution of distinct classes and series of shares, in quantities and conditions previously established in the announcement of the start of distribution of shares and in the fund's prospectus. §4 After the initial distribution of closed fund shares, new distributions to be carried out must be fully subscribed within a period of 180 (one hundred and eighty) days, counting from the protocol submission to the CVM of the documents referred to in §1 of this article.

§5 The CVM, due to justified request, at its exclusive discretion, may extend the term provided in the preceding paragraph by another period, no longer than the initial term.
§6 If the terms referred to in the preceding paragraphs are exceeded, without proceeding to the cancellation of the unplaced balance, in the form provided by the fund's regulations, the distribution must be cancelled.” (NR)

“Art. 23. The investor, upon entering as a condominium owner of an open fund or subscribing to shares of a closed fund, must receive information regarding the risk classification of the shares, when there is placement with the public, and the prospectus, if any. Sole paragraph. Placing the prospectus at the disposal of the condominium owner referred to in the caput does not relieve the administering institution of providing for the condominium owner's adherence to the fund's regulations.” (NR)

“Art. 24 ......
VI – ......
a) the eventual existence of more than one class or series of shares, in which case the characteristics, rights, and obligations of each of the classes and series must be specified, ensuring that subordinated shares can only be redeemed after the redemption of senior shares, except for the provision in Art. 18-A; b) that, in the amortization of shares of closed funds, it must be ensured that subordinated shares can only be amortized after the amortization of senior shares, except for the provision in Art. 18-B; and c) the criteria for subscription, amortization, and redemption in credit rights, observing the provision in Art. 15 of this Instruction.
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XIV – the procedures to be adopted in the event of downgrade of classification provided for in item III of Art. 3 of this Instruction; XV – the minimum ratio between the fund's net assets and the value of senior shares, the periodicity for calculation and disclosure to shareholders of this ratio, and the procedures applicable in the event of non-observance of this factor; and

XVI – the events of early liquidation of the fund, ensuring, in the case of assembly decision for non-liquidation of the fund, the redemption of senior shares, at their value, to dissenting shareholders who request it.
§1 ......
II – the segment in which the fund will operate; ......”(NR)

“Art. 31. ......
Sole paragraph. ......
I - be a condominium owner or professional especially hired to safeguard the interests of condominium owners; ......” (NR)

“Art. 38. ......
IV – to hold custody, administration, collection, and/or keep documentation relating to credit rights and other assets comprising the fund's portfolio; V – to ensure that the documentation of credit rights is maintained, at its expense, updated and in perfect order, with a pre-established methodology and freely accessible for independent audit, risk rating agency hired by the fund, and regulatory bodies; and VI – to collect and receive, on behalf and order of its clients, payments, redemption of titles, or any other income relative to the titles held in custody, depositing the received values in the deposit accounts thereof.” (NR)

“Art. 40. After 90 (ninety) days from the start of its activities, the fund must have 50% (fifty percent), at minimum, of its net assets represented by credit rights, the CVM being able, at its exclusive discretion, to extend this term by an equal period, provided the administrator presents reasons justifying the extension.
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§8 The fund's investments in warrants and in mercantile contracts for purchase and sale of products, goods, and/or services for delivery or future provision, as well as in titles or certificates representing these contracts must, without prejudice to compliance with the provisions of CMN Resolution No. 2,801, of December 7, 2000, and the provision in § 4 of this article, count on guarantee of a financial institution or insurance company, observed, in the latter case, specific regulation of the Superintendence of Private Insurance – SUSEP, for purposes of obtaining the automatic registration provided for in §1 of Art. 8 of this Instruction. ......”(NR)

“Art. 45. ......
§1 In the event that the fund's regulations provide for the existence of more than one class or series of shares, as admitted in accordance with Art. 12 of this Instruction, the information provided for in items III and IV of this article must be provided regarding each class and series of shares. ......”(NR)

“Art. 46. ......
§1 Without prejudice to other occurrences related to the fund, a relevant fact is considered the alteration of the risk classification of the classes or series of shares, as well as, if any, of the other assets comprising the respective portfolio. ......”(NR)

“Art. 55. It is indispensable, upon entry of the condominium owner into the open fund or subscription of shares of closed funds, his/her adherence to the terms of the respective regulations, with the administering institution bearing the responsibilities of defining the form and providing for such adherence to be effective.” (NR)

“Art. 56. ......
XI – expenses with the professional especially hired to safeguard the interests of condominium owners, in accordance with item I of Art. 31.
......” (NR)

Art. 2 CVM Instruction No. 356, of December 17, 2001, is hereby added the following articles:

“Art. 18-A. Subordinated shares of open funds may be redeemed before the redemption of senior shares, after a minimum period of 60 (sixty) days counted from the redemption request, observing the provision in the fund's regulations.

§1 In the event provided for in the caput, the administering institution must, at latest, on the third business day after receipt of the redemption request, communicate to the holders of senior shares in circulation the redemption request, the value, and the date of its realization, in accordance with the regulations. §2 Holders of senior shares in circulation, from the communication referred to in the preceding paragraph, may request redemption of their shares, which must be fully concluded before the respective redemption of subordinated shares, always observing the terms, conditions, and procedures defined in the regulations."

“Art. 18-B. Amortization of subordinated shares of closed funds is permitted exclusively in the events and in conformity with the criteria provided for in the regulations, observing the provision in item XV of Art. 24.”

“Art. 60-A The CVM may authorize specific procedures and dispense with compliance with provisions of this Instruction by FIDCs related to social credit or to micro, small, and medium enterprises.”

Art. 3 Funds in operation must adapt their regulations to the provision in items VI, letter “c”, XIV, XV, and XVI of Art. 24 of CVM Instruction No. 356/01, with the wording given by this Instruction, immediately after the first general assembly subsequent to the publication of this Instruction.

Art. 4 This Instruction enters into force 30 (thirty) days counted from the date of its publication in the Official Gazette of the Union.

Signed original by
LUIZ LEONARDO CANTIDIANO
President