Resolution CMN No. 3251 — Amends and Consolidates the Statute and Bylaws of the Credit Guarantee Fund (FGC)

RESOLUTION NO. 3251

Amends and consolidates the norms that provide for the statute and the bylaws of the Credit Guarantee Fund - FGC.

The CENTRAL BANK OF BRAZIL, in accordance with Article 9 of Law 4.595, of December 31, 1964, makes public that the MONETARY NATIONAL COUNCIL, in a session held on December 16, 2004, based on Articles 3, item VI, and 4, item VIII, of the aforementioned law, Article 69 of Law 7.357, of September 2, 1985, and Article 7 of Decree-Law 2.291, of November 21, 1986,

RESOLVES:

Article 1. To amend and consolidate, in accordance with Annexes I and II to this resolution, the norms that provide for the statute and the bylaws of the Credit Guarantee Fund - FGC.

Article 2. The monthly ordinary contribution of institutions associated with the FGC remains fixed at up to 0.025% (twenty-five thousandths percent) of the amount of the balances of the accounts corresponding to the obligations subject to guarantee.

§ 1. For the purposes of calculating the value of the contribution established in this article, the monthly average of the daily balances of the accounts corresponding to the obligations subject to guarantee must be used.

§ 2. The value of the contribution due must be calculated and communicated to the associated institutions by the 25th day of each month.

§ 3. The value of the contribution must be remitted to the FGC on the first business day of the month following its calculation and communication to the associated institutions.

§ 4. Delay in the payment of the due contribution implies a fine of 2% (two percent) on the value of the contribution, plus adjustment based on the Selic rate.

Article 3. The wording given to Chapter IV of the Bylaws attached to Resolution 1.631, of August 24, 1989, by Resolution 3.024, of October 24, 2002, is maintained:

"Chapter IV

OF THE CREDIT GUARANTEE FUND - FGC

Article 21. The service fee referred to in Article 20 will revert in favor of the Credit Guarantee Fund - FGC, intended for the protection of holders of the credits specified in the respective statute, against multiple banks, commercial banks, investment banks, development banks, Caixa Econômica Federal, credit, financing and investment companies, real estate credit companies, mortgage companies and savings and loan associations." (NR)

Article 4. This resolution enters into force on the date of its publication.

Article 5. Resolutions 3.024, of October 24, 2002, and 3.161, of December 18, 2003, are hereby revoked.

Brasília, December 16, 2004.

Henrique de Campos Meirelles
President

Annex I to Resolution 3.251, of December 16, 2004

STATUTE OF THE CREDIT GUARANTEE FUND - FGC

Chapter I

OF THE NAME, OBJECT, HEADQUARTERS AND TERM

Article 1. The Credit Guarantee Fund - FGC is a non-profit civil association, with private law legal personality, governed by this statute and the applicable legal and regulatory provisions.

Sole paragraph. The FGC does not exercise any public function, including by delegation.

Article 2. The FGC has as its object to provide credit guarantees against associated institutions, referred to in Article 6, in the following cases:

I - declaration of intervention, extrajudicial liquidation or bankruptcy of an associated institution;

II - recognition, by the Central Bank of Brazil, of the insolvency status of an associated institution that, under current legislation, is not subject to the regimes referred to in item I;

III - occurrence of special situations, not covered by items I and II, with prior understanding between the Central Bank of Brazil and the FGC.

Sole paragraph. By paying the debts of associated institutions, the FGC has the right to be reimbursed for what it paid in accordance with Article 346, item III, of the Civil Code.

Article 3. The FGC has its headquarters and legal forum in the city of São Paulo (SP).

Article 4. The duration of the FGC is indefinite.

Chapter II

OF THE ASSETS

Article 5. The funding of the guarantee to be provided by the FGC must be made with resources from:

I - ordinary contributions from associated institutions;

II - service fees resulting from the issuance of checks without sufficient funds;

III - recovery of credit rights in which the FGC has been subrogated, due to payment of debts of associated institutions, relating to guaranteed credits;

IV - net result of services provided by the FGC and income from the application of its resources;

V - revenues from other sources.

§ 1. The liability of associated institutions is limited to the contributions they are obligated to make for the funding of the guarantee, observing the conditions and limits established in the FGC bylaws.

§ 2. If the FGC's assets are insufficient at any time to cover the guarantee provided in the respective bylaws, resources from the following sources will be used, in the following order:

I - extraordinary contributions from associated institutions, in accordance with Article 22, item II;

II - advance payment, by associated institutions, of up to twelve monthly ordinary contributions;

III - credit operations with private, official or multilateral institutions;

IV - other sources of resources, proposed by the FGC administration and with prior authorization from the Central Bank of Brazil.

Chapter III

OF ASSOCIATED INSTITUTIONS

Article 6. Associated institutions with the FGC are multiple banks, commercial banks, investment banks, development banks, Caixa Econômica Federal, credit, financing and investment companies, real estate credit companies, mortgage companies and savings and loan associations, operating in the country, that:

I - receive demand deposits, in checking accounts for investment, in savings accounts or time deposits;

II - accept bills of exchange;

III - raise resources through the issuance and placement of real estate letters, mortgage letters and real estate credit letters.

Sole paragraph. Depositors and investors in associated institutions have the right to the credit guarantee provided by the FGC, observing the provisions of Article 2.

Chapter IV

OF THE GENERAL ASSEMBLIES

Article 7. By April 30 of each year, at least, the associated institutions must meet in an ordinary general assembly to take the accounts of the administrators, examine, discuss and vote on the financial statements, based on the opinions of independent auditors and the fiscal council, and elect the members of the board of directors from those indicated by the National Confederation of Financial Institutions - CNF, as well as the members of the executive board.

Article 8. The extraordinary general assembly will be convened to deliberate on other matters of interest to the FGC.

Article 9. The general assembly will be convened always with an indication of the agenda:

I - by the president of the board of directors, on his own initiative or at the request of two or more of its members;

II - by two or more members of the board of directors who have requested the president of the board of directors to do so, if the latter does not promote the publication of the convening notice within ten days, counted from the receipt of the request;

III - by at least 1/5 (one fifth) of the associated institutions.

Article 10. The general assembly will be installed and presided over by the president of the board of directors, who will invite one of those present to serve as secretary for the proceedings.

Sole paragraph. In the absence of the president, the general assembly will be installed by any of the councilors, with the associated institutions present electing the president of the assembly.

Article 11. The general assembly will be installed with any number of associated institutions present, and its deliberations will be taken by simple majority, except for those whose object is the amendment of the statute or bylaws, or the election and removal of members of the board of directors or the executive board, in which the following will be required:

I - quorum for installation in the first call with the presence of at least 50% (fifty percent) plus one of the participating associated institutions, and in subsequent calls, the presence of at least 1/3 (one third) of the associated institutions;

II - quorum for deliberation of at least 2/3 (two thirds) of the associated institutions present at the assembly.

Sole paragraph. Once the amendment of the statute is approved by the general assembly, the respective proposal must be forwarded to the Central Bank of Brazil, for examination and submission to the Monetary National Council.

Article 12. An associated institution may be represented by another, through a power of attorney with specific powers for each general assembly.

Article 13. In the deliberations of the general assembly, each associated institution has one vote.

Sole paragraph. In the case of associated institutions that are part of the same financial conglomerate, only one vote is due, the right to which is exercised by the associated institution designated in writing by said conglomerate for this purpose.

Chapter V

OF THE ADMINISTRATION OF THE FGC

Article 14. The FGC will be administered by the board of directors and the executive board, elected by the general assembly.

Article 15. The board of directors will be constituted of five to nine effective members and an equal number of alternates, natural persons residing in the country, representatives of associated institutions, indicated by the CNF, including the one who will hold the position of president, elected by the general assembly.

Article 16. The term of office of the members of the board of directors will be three years, with re-election permitted.

§ 1. The term of office will extend until the investiture of the new councilors designated.

§ 2. The members of the board of directors are exempt from providing management guarantee.

Article 17. In cases of temporary replacement of members of the board of directors, the councilors will be replaced by their respective alternates.

Article 18. In the case of a member of the board of directors leaving the position held in the associated institution represented, the latter must indicate the respective substitute, for ratification by the general assembly.

Sole paragraph. If the associated institution represented does not indicate a substitute as a member for the board of directors within thirty days, counted from the date of departure of its representative, the alternate member will take office as an effective councilor, regardless of any formality.

Article 19. The board of directors must declare the position of a member vacant who, without justified cause, fails to participate in three consecutive meetings of the body.

Article 20. The board of directors will meet by convocation of the president, on his own initiative or at the request of two or more of its members.

§ 1. If the president, within seven days of receiving the request for convocation, does not issue the respective notice, two or more members of the board of directors who have requested the meeting may send the convocation notice.

§ 2. The convocation notice must indicate the agenda and be delivered, with receipt, to the members of the board of directors at least ten days in advance.

§ 3. The advance notice referred to in § 2 is waived when the meeting has the presence or representation of all members of the board of directors, or alternatively, with a written statement from those members agreeing to the holding of the meeting.

§ 4. The meeting of the board of directors can only occur with the presence or representation of the absolute majority of its members, and the deliberations must be taken by majority of votes, with the president having the casting vote in case of a tie in voting.

§ 5. Minutes must be drawn up in the appropriate book, signed by those present, from the meetings of the board of directors.

Article 21. The executive board, composed of up to three directors, one of whom is the executive director and the others without specific designation, will be elected by the general assembly for a term of three years, through the indication of names made by the board of directors.

§ 1. The elected members of the executive board must have their names submitted to the Central Bank of Brazil, which will approve them if they meet the requirements provided in the current regulation for the exercise of positions in statutory bodies of financial institutions and other institutions authorized to operate by said Autarchy.

§ 2. Once the respective names are approved, the members of the executive board must take office after signing a letter of commitment of confidentiality to the Central Bank of Brazil.

§ 3. The members of the executive board, during the exercise of their mandate, are prohibited from holding any management position or providing services in a financial institution or other institutions authorized to operate by the Central Bank of Brazil.

Article 22. It is the responsibility of the board of directors:

I - to fix the percentage of the ordinary contribution of institutions associated with the FGC, through a specific request, duly justified, presented to the Central Bank of Brazil, for examination and submission to the prior authorization of the Monetary National Council, observing the maximum percentage established in Article 2 of this resolution;

II - to fix the conditions of the extraordinary contributions that associated institutions must make to fund the guarantee to be provided by the FGC in the case referred to in Article 5, § 2, item I, observing that such contributions:

a) are limited to 50% (fifty percent) of the rate in force for ordinary contributions;

b) are exclusively intended to cover any asset deficiency of the FGC;

III - to fix the general orientation of the FGC services, especially the policies and norms to be observed in the fulfillment of its social purposes and in the application of its resources, establishing the requirements for composition and risk diversification of the portfolio, and may even contract its administration with third parties;

IV - to approve the internal regulations and define competencies for deliberation and practice of acts included in the object of the FGC;

V - to indicate to the general assembly the names of the candidates for members of the executive board;

VI - to approve the operating and investment budget of the FGC;

VII - to present to the Central Bank of Brazil, for examination and submission to the prior authorization of the Monetary National Council, a proposal, duly justified, for the alteration of the maximum percentage of the monthly ordinary contribution, established in Article 2 of this resolution;

VIII - to approve the remuneration levels of the executive board and the staff of the FGC;

IX - to deliberate on acts and operations that, according to this statute or the internal regulations, are within its competence, including alienation of permanent assets;

X - to deliberate on the hiring of independent auditors;

XI - to examine the monthly balance sheet and express an opinion on the report and financial statements of the FGC;

XII - to deliberate on omitted cases.

§ 1. The FGC may apply resources in the acquisition of credit rights from financial institutions and leasing companies, as well as in the realization of linked operations in the form of Resolution 2.921, of January 17, 2002, limited the balance of these applications to 20% (twenty percent) of the fund's assets.

§ 2. It is prohibited for the FGC to apply resources in the acquisition of real estate, except when received in liquidation of credits of its ownership, after which they must be alienated.

Article 23. It is the responsibility of the executive board, in addition to the practice of ordinary management acts:

I - the active and passive representation of the FGC, in court or out of court;

II - the administration of the FGC, in accordance with the statute and the internal regulations.

Sole paragraph. Representation in court, to receive citation or notification, to give personal testimony or analogous acts, will be the responsibility of the executive director, who may indicate, to do so on his behalf, another director or attorney with special powers.

Article 24. The FGC can only assume obligations through joint signature:

I - of two directors;

II - of one director together with an attorney with a specific mandate.

Sole paragraph. The powers of attorney of the FGC will be granted by two directors and must contain the specification of the powers conferred and the validity period, except in the granting of powers of attorney for judicial purposes, which may be valid for an indefinite period.

Chapter VI

OF THE FISCAL YEAR AND FINANCIAL STATEMENTS

Article 25. The fiscal year of the FGC coincides with the calendar year.

§ 1. At the end of each semester, the executive board must have semi-annual financial statements prepared.

§ 2. At the end of each fiscal year, the executive board must have a balance sheet and statement of the result of the exercise prepared, as well as a report on the activities and result of the period and the situation of the reserves at the end of the exercise, with a view to their respective appreciation by the board of directors.

§ 3. Copies of the annual report and financial statements must be sent to all associated institutions, as well as to the Central Bank of Brazil.

§ 4. The semi-annual and annual financial statements of the FGC must be examined by independent auditors and published in the Official Gazette.

Article 26. The result annually calculated by the FGC must be registered in the reserves provided for in the internal regulations.

Chapter VII

OF THE FISCAL COUNCIL

Article 27. The FGC will have a fiscal council composed of three effective members and an equal number of alternates, elected by the general assembly.

Article 28. It is the responsibility of the fiscal council to examine the balance sheets and financial statements of the FGC, the report of the board of directors and the opinion of the independent auditors, issuing its respective opinion on these documents for appreciation by the ordinary general assembly.

Article 29. The term of office of the members of the fiscal council will be three years, with re-election permitted.

Chapter VIII

OF LIQUIDATION

Article 30. The FGC will enter liquidation in the cases provided for by law or by determination of the Monetary National Council, through deliberation of the general assembly, with the board of directors appointing the liquidator, after hearing the Central Bank of Brazil.

Chapter IX

OF GENERAL PROVISIONS

Article 31. When the creation, by law, of a credit guarantee mechanism against a financial institution occurs, the associated institutions must deliberate in a general assembly, convened in the form of Article 9, on the extinction of the FGC and the destination of its assets to the guaranteeing institution then created.

Annex II to Resolution 3.251, of December 16, 2004

BYLAWS OF THE CREDIT GUARANTEE FUND - FGC

Article 1. Investors and depositors of associated institutions, referred to in Article 6 of the statute, have the right to the protection provided by the Credit Guarantee Fund - FGC.

Article 2. The following credits are the object of the guarantee provided by the FGC:

I - demand deposits or withdrawable upon prior notice;

II - deposits in checking accounts for investment;

III - savings deposits;

IV - time deposits, with or without the issuance of a certificate;

V - bills of exchange;

VI - real estate letters;

VII - mortgage letters;

VIII - real estate credit letters.

§ 1. The following are not covered by the guarantee:

I - deposits, loans or any other resources raised or withdrawn abroad;

II - operations related to programs of government interest established by law;

III - judicial deposits;

IV - time deposits authorized to compose Level II of the Reference Equity - PR, as provided in Resolution 2.837 of May 30, 2001.

§ 2. The total amount of credits of each person against the same associated institution, or against all associated institutions of the same financial conglomerate, will be guaranteed up to the value of R$20,000.00 (twenty thousand reais).

§ 3. For the purpose of determining the guaranteed value of each person's credits, the following criteria must be observed:

I - the holder of the credit is the person in whose name the credit is registered in the accounting records of the associated institution or the person designated in a title issued or accepted by it;

II - the credits of each creditor identified by their respective Individual Taxpayer Registry (CPF)/National Registry of Legal Entities (CNPJ) against all associated institutions of the same financial conglomerate must be added together;

III - spouses are considered distinct persons, regardless of the marital property regime;

IV - credits in the name of dependents of the beneficiary identified in accordance with item II must be computed separately;

V - in the event of application in a credit instrument related to art. 2º whose negotiation is intermediated by an institution part of the National Financial System, the ownership of the credits against the associated institutions of the FGC must be proven by the client of the intermediary institution in the operation, through the presentation of the negotiation note of the instrument in the form of Circular 915, of February 13, 1985;

VI - the credits titled by associations, condominiums, cooperatives, groups or consortium administrators, complementary pension entities, insurance companies, capitalization societies and other societies and associations without legal personality and similar entities, will be guaranteed up to the value of R$20,000.00 (twenty thousand reais) in the total of their assets in a single associated institution;

VII - in joint accounts, the guarantee value is limited to R$20,000.00 (twenty thousand reais), or to the account balance when lower than this limit, divided by the number of holders, with the credit of the guaranteed value being made individually;

VIII - the receipt of credits against institutions associated with the FGC through powers of attorney must be previously justified and approved by them.

§ 4º In the case provided for in § 3º, item V, the intermediary institution of the operation must present to the interventor or liquidator a list of its clients containing the applied values, the date and the other characteristics of the application in instruments issued by an entity under intervention or in extrajudicial liquidation.

§ 5º When procedures are detected that may facilitate, through the use of artifices, the payment of a value higher than the limit of R$20,000.00 (twenty thousand reais), with the intent to benefit the same person, the FGC, provided that it is duly justified for the depositor or investor, may suspend payments until the facts are clarified, with the interested party bearing the burden of proving the integrity of the procedures adopted, leaving it to the discretion of the FGC to accept or not the arguments and proofs presented.

Art. 3º The payments, by the FGC, of the credits held by depositors or investors against associated institutions shall be effected through the use of the resources referred to in art. 5º of the statute, observing the conditions provided therein.

§ 1º The ordinary contributions of the associated institutions are due monthly, resulting from the application of the current rate on the value of the account balances that record the obligations corresponding to the guaranteed credits.

§ 2º It is incumbent upon the Central Bank of Brazil, upon proposal by the FGC, to establish the accounts that must serve as the basis for calculating the contributions.

§ 3º When the FGC's available funds reach 2% (two percent) of the total of the account balances covered by the guarantee, among the associated institutions collectively, the board of directors, upon proposal by the executive board, duly justified, submitted to the Central Bank of Brazil for examination and submission to the prior authorization of the Monetary Council, may deliberate the temporary suspension of the contributions of the associated institutions to the fund.

§ 4º If the FGC's available funds come to represent less than 2% (two percent) of the total of the account balances covered by the guarantee, the contributions of the associated institutions will be collected until the available funds return to the level of 2% (two percent) of the total of the account balances covered by the guarantee.

§ 5º For the purpose of quantifying the FGC's available funds, the balances available in cash and in deposit accounts maintained at financial institutions must be considered.

§ 6º The liability of the associated institutions is limited to the contributions they are obligated to make for the funding of the guarantee.

Art. 4º Occurring the situations provided for in art. 2º of the statute, the values corresponding to the payments due will be delivered directly by the FGC to the legal representative of the institution under intervention, liquidation or in a state of insolvency, within the deadline fixed by the Central Bank of Brazil, based on a list of creditors provided to the fund, observing the limit established in art. 2º, § 2º.

Sole paragraph. It is up to the FGC to designate at least one financial institution responsible for the payments.

Art. 5º The FGC, by effecting the payment of debts of associated institutions, has the right to be reimbursed for what it paid in accordance with art. 346, item III, of the Civil Code.