CVM Instruction No. 444 of December 8, 2006, with amendments introduced by CVM Instruction No. 554/14

INSTRUCTION CVM No. 444, OF DECEMBER 8, 2006, WITH THE AMENDMENTS INTRODUCED BY CVM INSTRUCTION No. 554/14.

Provides for the operation of Investment Funds in Non-Standardized Credit Rights.

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. 2, item IX, and 8, item I of Law No. 6,385, of December 7, 1976, RESOLVED to issue the following Instruction:

Art. 1 This Instruction provides for the constitution and operation of Non-Standardized Credit Rights Investment Funds – FIDC-NP.

§ 1 For the purposes of this Instruction, a Non-Standardized FIDC is considered one whose investment policy allows for the realization of applications, in any percentage of its net asset value, in credit rights:

I – that are overdue and pending payment at the time of their assignment to the fund;

II – resulting from public revenues originating or derived from the Union, the States, the Federal District, and the Municipalities, as well as from their autarchies and foundations;

III – that result from ongoing judicial actions, constitute the object of litigation, or have been judicially attached or given as security;

IV – whose constitution or legal validity of the assignment to the FIDC is considered a predominant risk factor;

V – originated from companies in the process of judicial or extrajudicial recovery;

VI – of future existence and unknown amount, provided they emerge from already constituted relationships; and

VII – of a different nature, not encompassed in the provision of item I of art. 2 of CVM Instruction No. 356, of December 17, 2001.

§ 2 The following shall also be considered Non-Standardized:

I – the FIDC whose portfolio of credit rights has its yield exposed to assets other than the credits assigned to the fund, such as credit derivatives, when not used for protection or risk mitigation; or

II – the Investment Fund in FIDC Shares that makes applications in shares of FIDC-NP.

Art. 2 The constitution and operation of the FIDC-NP shall be governed by the provisions of CVM Instruction No. 356/01, observing the provisions of this Instruction.

Art. 3 The FIDC-NP intended for application in credit rights that fall under any of the characteristics related in art. 2 shall contain in its denomination the expression “Non-Standardized Credit Rights”.

INSTRUCTION CVM No. 444, OF DECEMBER 8, 2006.
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Art. 4 The funds regulated by this Instruction:

Art. 4 The funds regulated by this Instruction may only receive applications, as well as have shares traded in the secondary market, when the subscriber or acquirer of the shares is a professional investor, as defined in specific regulation.

• Caput with wording given by CVM Instruction No. 554, of December 17, 2014.

I – may only receive applications, as well as have shares traded in the secondary market, when the subscriber or acquirer of the shares is a qualified investor, as defined in the regulation issued by the CVM regarding investment funds; and

I - REVOKED

II – shall have shares with a unit nominal value of R$ 1,000,000.00 (one million Reais), at minimum, with the issuance and trading of fractions of shares only permitted for holders of at least one share with this nominal value.

II - REVOKED

• Items I and II revoked by CVM Instruction No. 554, of December 17, 2014.

Sole Paragraph. The provision of item II of the caput of this article does not apply to the FIDC-NP whose investment policy has as its predominant objective the realization of applications in credit rights framed in the hypotheses of items II and VII of § 1 of art. 1, with the CVM being authorized, in view of the specific characteristics of the fund, public interest, and investor protection, to establish a minimum nominal value for the shares, which may not exceed R$ 1,000,000.00 (one million Reais).

Sole Paragraph. A person who is not a professional investor, as defined in specific regulation, may subscribe to shares of the FIDC-NP whose investment policy has as its predominant objective the realization of applications in credit rights framed in the hypothesis of item V of § 1 of art. 1, provided that the full payment is made in credit rights.

• Sole Paragraph with wording given by CVM Instruction No. 554, of December 17, 2014.

Art. 5 The public distribution of shares of the open or closed funds referred to in this Instruction shall be carried out through the presentation of a prospectus, prepared in accordance with CVM Instruction No. 400, of December 29, 2003.

Art. 6 Every shareholder, upon entering the fund, shall attest, through a specific term, that:

I – received a copy of the prospectus;

II – took note of the risks involved and the investment policy;

III – took note of the possibility of losses resulting from the characteristics of the credit rights that make up the fund's assets.

INSTRUCTION CVM No. 444, OF DECEMBER 8, 2006.
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Sole Paragraph. The administrator shall keep the term containing the declarations referred to in the caput of this article, duly signed by the investor, or registered in an electronic system that guarantees compliance with the provision of the caput, available to the CVM.

Art. 7 The operation of the funds referred to in this Instruction, open or closed, will depend on prior registration with the CVM.

§ 1 The registration request shall be accompanied by the documents provided for in art. 8 of CVM Instruction No. 356/01, accompanied by a legal opinion regarding the validity of the constitution and assignment of credit rights to the fund, and by an opinion from the competent legal advisory body, when it concerns the credits referred to in item II of § 1 of art. 1 of this Instruction.

§ 2 The CVM shall have 20 (twenty) business days, counted from the protocol, to manifest itself regarding the registration request accompanied by all documents and information that must accompany it, which shall be automatically obtained if the CVM does not manifest itself within this period.

§ 3 The period provided for in § 2 may be interrupted only once if the CVM, by letter sent to the fund administrator, requests additional documents, changes, and information related to the registration request.

§ 4 For compliance with any requirements, a period of up to 40 (forty) business days shall be granted, counted from the receipt of the respective correspondence.

§ 5 The period for compliance with requirements may be extended only once, for a period not exceeding 20 (twenty) business days, upon prior presentation of a reasoned request by the interested parties.

§ 6 In compliance with the requirements formulated by the CVM, the documents shall be presented in two versions, the first containing the document originally submitted, with the indication of the changes determined by the CVM and those that do not result from compliance with such determinations, and the second, without any marks.

§ 7 From the receipt of all documents and information in compliance with the requirements formulated, the CVM shall have 10 (ten) business days to manifest itself regarding the registration request, which shall be automatically obtained if the CVM does not manifest itself within this period.

§ 8 In case, in addition to the documents and information presented in the manner of § 7, changes have been made to documents and information that do not result from compliance with requirements, the analysis period by the CVM shall be 20 (twenty) business days.

§ 9 In funds that make applications in the credit rights referred to in item II of § 1 of art. 1 of this Instruction, or in credit rights assigned or originated by companies controlled by the public power, a manifestation regarding the existence of a financial commitment that characterizes a credit operation, for the purposes of the provision of Complementary Law No. 101, of May 4, 2000, shall be presented, and, in case of a positive response, competent authorization from the Ministry of Finance shall be attached, in accordance with art. 32 of the aforementioned Complementary Law.

§ 10. The period referred to in § 7 shall be extended to 30 (thirty) days when it concerns a fund whose receivables fall under item II of § 1 of art. 1 of this Instruction, and the CVM has requested prior manifestation from the Central Bank of Brazil or the National Treasury Secretariat regarding the conditions of constitution of the fund.

Art. 8. The provision of art. 40-A of CVM Instruction No. 356/01 does not apply in relation to the credits referred to in item II of § 1 of art. 1 of this Instruction.

Art. 9. The CVM may, at its discretion and always observing public interest, adequate information, and investor protection, authorize specific procedures and dispense with the compliance of provisions of CVM Instruction No. 356/01, for funds registered in accordance with this Instruction.

§ 1 The request for dispensation referred to in the caput of this article shall:

I – identify the name of the fund administrator, other service providers, and all persons involved in the operation, not being considered by the CVM a request based on a hypothetical situation;

II – be limited to the issue object of the requested dispensation, avoiding encompassing possible situations that may occur in the future;

III – be concise and objective, notwithstanding containing all facts and documents necessary to conclude on the dispensation.

§ 2 The applicant shall emit a reasoned opinion on the legality of the request.

§ 3 The CVM may grant confidential treatment to the request, provided it is requested and reasoned by the applicant.

§ 4 The simultaneous presentation of the request for registration of operation of the funds referred to in this Instruction and the request for dispensation of requirements for the granting of registration shall be admitted.

Art. 10. Investment funds in operation on the date of entry into force of this Instruction, whose investment policy allows for investments in non-standardized credit rights, shall adapt to the provisions contained in this Instruction as a condition for the realization of new public offerings of shares.

Art. 11. This Instruction enters into force on the date of its publication in the Official Gazette of the Union.

Original signed by
MARCELO FERNANDEZ TRINDADE
President