Resolution CMN No. 3263 — Amends and Consolidates Regulation on Compensation and Settlement Agreements in the National Financial System

RESOLUTION NO. 3263

Amends and consolidates the regulation regarding agreements for the compensation and settlement of obligations within the scope of the National Financial System.

The CENTRAL BANK OF BRAZIL, in accordance with Article 9 of Law No. 4,595 of December 31, 1964, makes public that the NATIONAL MONETARY COUNCIL, in a session held on February 24, 2005, based on Articles 4, item VI, of the aforementioned law, and Article 30 of Provisional Measure No. 2,192-70 of August 24, 2001,

RESOLVES:

Article 1. It is permitted for financial institutions and other institutions authorized to operate by the Central Bank of Brazil to enter into agreements for the compensation and settlement of obligations within the scope of the National Financial System (SFN).

Article 2. The agreements must be entered into between the institutions mentioned in Article 1 and natural or legal persons, whether or not part of the SFN, prohibiting the acting of any of the parties as an intermediary in these agreements.

Article 3. The agreements must be entered into in a specific contract by means of a public instrument or, alternatively, a private instrument.

§ 1. Agreements entered into by means of a private instrument must, as a condition for their effectiveness:

I - have their full text registered in a registry office for titles and documents; or

II - have their existence proven through registration in a system for the registration and financial settlement of assets authorized by the Central Bank of Brazil or in an entity that already operates the registration of operations in organized derivative markets, provided that it is specifically accredited for this purpose by the aforementioned authority or by the Securities and Exchange Commission.

§ 2. The obligation to enter into specific contracts is exempted for operations carried out in derivative markets that have a global compensation and settlement agreement, provided that this agreement is subject to registration in a system referred to in § 1.

§ 3. Agreements for the compensation and settlement of obligations:

I - must be filed for registration in a registry office or have their existence proven through registration in a system or entity referred to in § 1 within a maximum period of five business days counted from the date of their execution;

II - may refer to operations already carried out or those to be carried out on a future date, provided they are clearly foreseen.

§ 4. For the purposes of this resolution, the stipulation of clauses establishing:

I - the compensation of rights or obligations of third parties, even if controlling, controlled, or affiliated, including the companies referred to in Article 3 of Resolution No. 2,723 of May 31, 2000, with the wording given by Resolution No. 2,743 of June 28, 2000;

II - that, after the maturity, calculation, and compensation of obligations, the performing party limits the immediate payment of the final amount due, or even does not pay, if the non-performing party is a creditor.

is prohibited.

§ 5. The existence of an agreement for the compensation and settlement of obligations carried out under the auspices of this resolution, as well as its most relevant characteristics, must appear in the explanatory notes to the financial statements.

Article 4. The agreements must establish the conditions that lead to the acceleration of maturity, as well as the methodology for the calculation, compensation, and settlement of the obligations subject to it.

§ 1. In the event that the agreement establishes the acceleration of maturity due to the default of one of the parties, the situations that characterize the default must be stipulated.

§ 2. The party that has civil insolvency, intervention, bankruptcy, or extrajudicial liquidation decreed is also considered in default, from the date of the decree of the exceptional regime.

Article 5. The institutions mentioned in Article 1 that enter into agreements for the compensation and settlement of obligations must indicate a director responsible for the aforementioned agreements, keeping the respective data updated in the Information System on Entities of Interest of the Central Bank (Unicad).

Sole Paragraph. For the purposes of the responsibility referred to in the caput, it is admitted that the indicated director performs other functions in the institution, except that related to the administration of third-party resources.

Article 6. The Central Bank of Brazil is authorized to determine the method for calculating the Required Equity (PLE), with a view to reflecting the effective risk of the operations subject to compensation and settlement agreements, as well as to dispose regarding the risk limits per client, with respect to the provisions of this resolution.

Article 7. This resolution enters into force on the date of its publication.

Article 8. Resolution No. 3,039 of October 30, 2002, is hereby revoked.

Brasília, February 24, 2005.

Henrique de Campos Meirelles
President