CVM Instruction No. 443 of December 8, 2006 (Revoked)

CVM INSTRUCTION NO. 443, OF DECEMBER 8, 2006.
Amends CVM Instruction No. 414, of December 30, 2004.

The PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Board, in a meeting held on October 18, 2006, in view of the provisions of arts. 2º, item IX; 8º, item I; 19; and 22, § 1º, item I, of Law No. 6.385, of December 7, 1976, RESOLVED to issue the following Instruction:

Art. 1º Arts. 5º, 6º, 7º, 8º, 9º and 16 of CVM Instruction No. 414, of December 30, 2004, shall enter into force with the following wording:

“Art. 5º The real estate credits that back the issuance of CRIs must observe the maximum limit of 20% (twenty percent), per debtor or co-obligor.

§ 1º The percentage provided for in the caput may be exceeded when the debtor or co-obligor:
I – has registration as a publicly-held company; II – is a financial institution or equivalent; or III – is a business entity that has its financial statements relating to the social year immediately preceding the date of issuance of the CRI prepared in accordance with the provisions of Law No. 6.404, of December 15, 1976, and audited by an independent auditor registered with the CVM, except as provided in § 4º of this article.

§ 2º In the case of item III of § 1º, the financial statements of the debtor or co-obligor, and the respective report of the independent auditor, must be filed with the CVM by the securitizing company, and must be updated annually:
I – until the maturity date of the CRIs; or
II – until the year in which the credits owed by the debtor or co-obligor cease to represent more than 20% (twenty percent) of the real estate credits that serve as collateral for the CRIs.

§ 3º The filing with the CVM of the financial statements and the report of the independent auditor referred to in item III of § 1º must occur within a maximum period of 3 (three) months after the closing of the social year, or on the same day of its placement at the disposal of the partners, if this occurs on an earlier date.

§ 4º With respect to business entities responsible for more than 20% (twenty percent) of the real estate credits that back the issuance of CRIs, the filing with the CVM and the preparation of financial statements in the manner provided for in item III of § 1º of this article are waived, provided that the CRIs:
I – are the subject of a public distribution offer whose target audience consists exclusively of companies belonging to the same economic group, and their respective administrators and controlling shareholders, with the negotiation of the CRIs in the secondary market prohibited; or II – have a unit value equal to or greater than R$ 1,000,000.00 (one million Reais), and are the subject of a public offer intended for subscription by no more than 20 (twenty) investors.

§ 5º In the case provided for in item II of § 4º of this article, the CRIs subscribed may only be negotiated by the holder before 18 (eighteen) months have elapsed from the closing of the distribution, if the negotiation takes place between the holders of the CRIs, or if the holder alienates all the CRIs subscribed to a single investor.

§ 6º It is the duty of the intermediary institution to ensure compliance with the provisions of §§ 4º and 5º of this article in the negotiations of CRIs in the secondary market.

§ 7º For the purposes of this article, the controlling shareholder, the companies directly or indirectly controlled by them, their affiliates, and companies under common control are considered equivalent to the debtor or co-obligor.” (NR)

“Art. 6º The public distribution offer of CRIs with a unit nominal value lower than R$ 300,000.00 (three hundred thousand Reais) will only be admitted for CRIs backed by credits on which the fiduciary regime provided for in art. 9º of Law No. 9.514/97 has been instituted, originating:
I – from properties with an “occupancy permit” granted by the competent administrative body; or II – from the acquisition or promise of acquisition of real estate units linked to developments subject to financing, provided they are part of an affected patrimony, constituted in accordance with the provisions of arts. 31-A and 31-B of Law No. 4.591, of December 16, 1964.” (NR)

“Art. 7º The request for registration of a public distribution offer shall be submitted to the CVM by the lead institution of the distribution, or by the securitizing company, if the intermediation of the offer is waived (art. 9º), using a form prepared in accordance with Annex I, and shall observe the provisions of CVM Instruction No. 400, of December 29, 2003, except for the provisions of this Instruction.

§ 1º The registration request must be accompanied by the Credit Securitization Term, containing the information and documents indicated in Annex III of this Instruction, which must be registered or noted, as the case may be:
I – in the competent real estate registry office; or II – in the custodian institution, when a fiduciary regime is instituted and the collateral of the issuance consists of Real Estate Credit Certificates, in the manner of art. 23 of Law No. 10.931, of August 2, 2004.

......” (NR)

“Art. 8º Provisional registration may be granted for the public distribution of CRIs with a unit nominal value equal to or greater than R$ 300,000.00 (three hundred thousand Reais) upon presentation to the CVM, by a stock exchange or organized over-the-counter market entity, at the request of the securitizing company:
I – the form contained in Annex II of this Instruction, duly completed; and II – 3 (three) copies of the preliminary prospectus.

§ 1º The preliminary prospectus referred to in item II of the caput shall observe the provisions of art. 46 of CVM Instruction No. 400/03.

§ 2º The provisional registration will be automatically cancelled, regardless of notification by the CVM, if the registration referred to in art. 7º is not requested until the thirtieth day of the month following the month of granting the provisional registration, observing the provisions of art. 11 of this Instruction.

§ 3º If the definitive prospectus contains significant changes compared to the information contained in the preliminary prospectus, the offeror and, if applicable, the lead institution, must adopt the procedure provided for in art. 27 of CVM Instruction No. 400/03, proceeding with the full restitution of values, goods, or rights given in consideration for the CRIs possibly subscribed by investors who do not confirm the subscription already made.

§ 4º The deadlines for analysis of the definitive registration request shall be counted from the date of presentation of the documents referred to in items I and II of the caput of this article.

§ 5º The CVM may, at any time after the provisional registration has been granted, request proof of the information provided.” (NR)

“Art. 9º The public distribution offer of CRIs shall be carried out in observance of the provisions of CVM Instruction No. 400/03, with the participation of an intermediary institution being waived in public distribution offers of CRIs to raise amounts not exceeding R$ 30,000,000.00 (thirty million Reais), and that comply with the provisions of items I or II of § 4º of art. 5º of this Instruction.” (NR)

“Art. 16 ......
......
II – compliance with the requirements of art. 6º;
......

§ 1º For the purposes of item V of this article, CRIs in circulation are considered all CRIs subscribed, excluding those held in treasury by the securitizing company and those owned by companies controlled by it.

§ 2º The splitting of CRIs is prohibited without the filing, with the CVM, of the financial statements of debtors and co-obligors responsible for more than 20% (twenty percent) of the real estate credits, in the manner of item III of § 1º of art. 5º of this Instruction.” (NR)

Art. 2º The following art. 5º-A is added to CVM Instruction No. 414/04:

CVM INSTRUCTION NO. 443, OF DECEMBER 8, 2006.
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“Art. 5º-A. The provisions established in art. 5º, applicable to real estate credits due to their debtors and co-obligors, shall also be observed with respect to the originators of real estate credits relating to properties without an “occupancy permit” granted by the competent administrative body.” (AC)

Art. 3º This Instruction shall enter into force within 90 (ninety) days after its publication in the Official Gazette of the Union.

Signed original by
MARCELO FERNANDEZ TRINDADE
President