CMN Resolution No. 4063 — Amends and Consolidates Rules on Interest Rate Equalization for Proex Export Financing

The Central Bank of Brazil, pursuant to Article 9 of Law No. 4,595 of December 31, 1964, makes public that the National Monetary Council, in an extraordinary session held on April 12, 2012, based on Article 4, items V, VI, XVII, and XXXI, of the aforementioned Law and considering the provisions of Law No. 10,184 of February 12, 2001, and Article 3 of Decree No. 7,710 of April 3, 2012,

R E S O L V E S:

Art. 1 In financing operations for the export of goods and services, as well as computer programs (software) governed by Law No. 9,609 of February 19, 1998, the National Treasury may grant the financier or refinancier, as applicable, equalization sufficient to make financial charges compatible with those practiced in the international market.

§ 1 In financing for the export of aircraft, parts, spare parts, and related services, the equalization of interest rates shall be established operation by operation, at levels that may be differentiated, according to the characteristics of each operation, observing the terms, conditions, and procedures stipulated in the Sector Understanding on Export Credits for Civil Aircraft ("Sector Understanding on Aviation") of the Organization for Economic Co-operation and Development (OECD), when applicable.

§ 2 The equalization, throughout its entire period, is fixed and limited to the percentages established and periodically revised by the Ministry of Finance, according to criteria of term, segment, and financial institution, respecting, in any case, the limits established by Decree No. 7,710 of April 3, 2012.

Art. 2 Equalization may be granted:

I - in financing to the importer, for immediate payment to the exporter established in Brazil;

II - in refinancing granted to the exporter established in Brazil; and

III - in financing for the production of goods destined for export granted to the exporter established in Brazil.

§ 1 Banks that are multiple, commercial, investment, and development banks resident or domiciled in the country, and the Special Agency for Industrial Financing (Finame), are eligible to operate in the financing modalities to the importer and refinancing to the exporter referred to in items I and II of the caput of this article.

§ 2 Credit or financial establishments located abroad, including agencies of Brazilian banks, as well as the Andean Development Corporation (CAF), are also eligible to operate in the modalities referred to in items I and II of the caput of this article.

§ 3 A credit or financial establishment abroad is understood to be an establishment regularly constituted under the laws of the country in which it is located, whose statutes provide for the possibility of granting credit in any form of loan and which is subject to supervision by a government body.

§ 4 The negotiation abroad of credit titles related to the export or, where applicable, the respective letter of credit, does not interrupt, exclude, or transfer the right to equalization.

§ 5 Official regional development banks, as defined in Resolution No. 394 of November 3, 1976, which use resources from the Worker Protection Fund (FAT) in these operations, are eligible to operate in the modality referred to in item III of the caput of this article.

Art. 3 The amortization regime for financing and refinancing is that of quarterly or semi-annual installments, with a grace period for principal admitted, counted, as applicable, from the date of shipment or delivery of goods, the invoice, the commercial contract, or the financing contract, or from the date of consolidation of shipments and/or invoicing of services.

§ 1 Interest is calculated on the outstanding balance and due every three or six months counted from the respective events indicated in this article.

§ 2 The maximum period for consolidation of shipments and/or invoicing of services is 30 (thirty) days, with the consolidation date being that of the last event that comprises it.

§ 3 Operations with a term of less than 360 (three hundred and sixty) days are admitted, provided that amortization and payment of interest occur on a single date.

Art. 4 The amounts due by way of equalization are calculated as follows:

I - period: semi-annual, except for the first, which begins:

a) when it concerns financing to the importer, for immediate payment to the exporter, or refinancing to the latter, granted by an agent mentioned in Art. 2, § 1: from the date of credit in the exporter's current account or the event provided for in the caput of Art. 3, whichever occurs last;

b) when it concerns financing to the importer, for immediate payment to the exporter, or refinancing to the latter, granted by the agents mentioned in Art. 2, § 2: from the date of settlement of the foreign exchange contracts related to the total value of the export or from the date of the respective event indicated in the caput of Art. 3, whichever occurs last;

c) when it concerns financing to the exporter referred to in item III of Art. 2: from the date of credit in the exporter's current account;

II - calculation base: the outstanding balance of the financing in each period, recomposed based on the maximum equalizable term, when applicable, using the divisor 36,500 and considering a maximum grace period for principal of six months;

III - in the case of operations with a term of less than 360 (three hundred and sixty) days, mentioned in Art. 3, § 3, the equalization period is established:

a) in operations with a financing term of up to 180 (one hundred and eighty) days: based on the maximum equalizable term, limited to the term of the financing, counted according to the provisions of item "a" or "b" of item I of the caput of this article, as applicable;

b) in operations with a financing term greater than 180 (one hundred and eighty) days and less than 360 (three hundred and sixty) days: recomposed in two periods, the first being 180 (one hundred and eighty) days counted according to the provisions of item "a" or "b" of item I of the caput of this article, as applicable, and the second for the remaining days, based on the maximum equalizable term, limited to the term of the financing.

§ 1 The values due in financing operations carried out in a currency other than the United States dollar are converted to that currency based on the parity in effect on the date of the start of the first equalization period, published by the Central Bank of Brazil.

§ 2 With prior and express approval of the Committee for Financing and Guarantees for Exports (Cofig), and having a federal official financial institution as the financier, credits in the exporter's current account that occur before the shipment of goods or invoicing of services will be eligible for equalization.

§ 3 In the cases provided for in § 2, the amounts due by way of equalization are calculated from the date of credit in the exporter's current account.

§ 4 For the purposes of § 2, if, for any reason, the shipment of goods or invoicing of services does not occur, the equalization paid must be returned to the National Treasury Secretariat.

Art. 5 The values determined in accordance with Art. 4 are paid to the agents mentioned in Art. 2, §§ 1 and 2, in National Treasury Notes of Series I (NTN-I), whose nominal value is updated by exchange rate variation.

§ 1 For the calculation of the exchange rate variation applicable to the update of the nominal value of NTN-I, the selling exchange rates for the United States dollar of the close of the foreign exchange market on the business day prior to the date of its issuance and the business day prior to the date of its maturity, published by the Central Bank of Brazil, are used.

§ 2 The issuance of NTN-I is processed in book-entry form, through the registration of respective credit rights in the name of the agents mentioned in Art. 2, §§ 1 and 2, in the Special Settlement and Custody System (Selic), through which redemptions are effected.

§ 3 Agents not participating in Selic must enter into a contract with a bank participating in this System, covering:

I - custody service aimed at receiving NTN-I;

II - use of the "Bank Reserves" account for carrying out financial movements resulting from equalizations, as well as negotiations of the titles;

III - authorization to carry out foreign exchange operations and respective transfers to or from abroad resulting from the redemption or negotiation of NTN-I, if the agent not participating in Selic is located abroad;

IV - legal representation service for the purposes and effects of the provisions of Art. 6.

Art. 6 The issuance of NTN-I is carried out after the establishment of a credit or financial institution, among those mentioned in Art. 2, §§ 1 and 2, or the bank appointed as its legal representative, declares to the Financial Agent of the National Treasury for Proex that it is in possession of the documents proving compliance with the requirements described below:

I - when it concerns financing to the importer, for immediate payment to the exporter, or refinancing to the latter, granted by an agent mentioned in Art. 2, § 1:

a) shipment of goods or invoicing of services, except for disbursements made by way of express advance approval by Cofig, according to §§ 2, 3, and 4 of Art. 4;

b) credit in the exporter's current account of the amount in reais corresponding to the financed value;

c) payment of the non-financed portion, if any; and

d) copy of the financing contract signed or of the credit titles related to the export, duly accepted and endorsed, or of the respective letter of credit, in refinancing granted to the exporter;

II - when it concerns financing to the importer, for immediate payment to the exporter, or refinancing to the latter, granted by an agent mentioned in Art. 2, § 2:

a) shipment of goods and, where applicable, invoicing of services;

b) settlement of foreign exchange operations related to the total value of the export;

c) copy of the financing contract signed or of the credit titles related to the export, duly accepted and endorsed or, where applicable, of the respective letter of credit.

§ 1 The possession of other documents related to the credit, granted in Brazil and abroad, framed under the terms of this Resolution, may be required.

§ 2 The deadline to request NTN-I from the Proex Financial Agent is 12 (twelve) months, counted from the date of credit in the exporter's current account or the event provided for in the caput of Art. 3, whichever occurs last.

§ 3 By express determination of Cofig, the Proex Financial Agent will request the credit or financial establishment the documents referred to in the caput and § 1 of this article.

Art. 7 Failure to settle the foreign exchange contracts related to the inflow of the value in foreign currency of any portion of principal or interest implies for the financier or refinancier:

I - if the NTN-I have already been redeemed, the restitution, in cash, of the value received by the redemption, proportional to the value in foreign currency not received, plus charges calculated based on the accumulated Selic rate between the date of redemption of the NTN-I and the business day prior to the date of actual return;

II - if the NTN-I have not been redeemed:

a) the cancellation of the NTN-I in their ownership, linked to the unliquidated contracts referred to in the caput of this article, proportional to the value in foreign currency not received;

b) the restitution, in cash, of the face value of the NTN-I, proportional to the value in foreign currency not received;

c) the delivery of titles received in exchange for the NTN-I in an operation with the National Treasury, by the swap terms of the date of said swap operation, proportional to the value in foreign currency not received; or

d) the delivery of any other public debt titles issued in book-entry form, registered in a centralized settlement and custody system authorized by the Central Bank of Brazil, at the discretion of the Ministry of Finance, which will determine the economic value of the said titles, proportional to the value in foreign currency not received.

§ 1 In the case of financing granted by federal official financial institutions, proof of the inflow of foreign exchange is dispensed with upon proof of payment of the operations.

§ 2 In the case of § 1, the proof of inflow of foreign exchange or of payments made by the financed parties or guarantors must be kept by the financing institution for a period of 5 (five) years, after the end of the financing or refinancing, with their presentation to the Program Agent being dispensed with.

§ 3 The dispensation referred to in § 1 also applies to operations contracted on a date prior to the entry into force of this Resolution, observing, in any case, the provisions of § 2.

Art. 8 The Financial Agent of the National Treasury for Proex is Banco do Brasil S.A., to which it is incumbent:

I - to receive requests for classification of financing or refinancing for the export of goods, services, and computer programs (software);

II - to submit to Cofig, summarily, any requests related to the export of services and aircraft for regional aviation;

III - to present for Cofig deliberation requests related to financing or refinancing that contain characteristics divergent from the regulations;

IV - to issue letters of accreditation for approved operations;

V - to submit to Cofig requests in the degree of appeal, only once;

VI - to carry out monitoring and control of the financial and budgetary execution of Proex; and

VII - to issue instructions on the operational processing of Proex and provide exporters with the information necessary regarding the use of the Program.

Art. 9 Beneficiaries of operations classified, up to the date of entry into force of this Resolution, for which the issuance of NTN-I has not been requested, will have, from that date, the period provided for in § 2 of Art. 6 to request it from the Proex Financial Agent.

Art. 10 This Resolution enters into force on the date of its publication.

Art. 11 Resolution No. 3,219 of June 30, 2004, is hereby revoked.

Alexandre Antonio Tombini
President of the Central Bank of Brazil

(*) Republished to rectify Art. 6, item I, item "a".