Advanced Search

Provisional Measure No. 2,192-68, Of 28 June 2001

Original Language Title: Medida Provisória nº 2.192-68, de 28 de Junho de 2001

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

PROVISIONAL MEASURE NO. 2,192? 68, OF June 28, 2001

Establishes mechanisms objecting to encouraging the reduction of the state public sector's presence in banking financial activity, has on the privatization of financial institutions, and gives other providences.

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution that confers it on art. 62 of the Constitution, adopts the following Provisional Measure, with force of law:

Art. 1º The reduction of the state public sector's presence in the banking financial activity will be encouraged by the mechanisms established in this Interim Measure, and by standards downloaded by the National Monetary Council, within the framework of its competence, preferentially upon privatization, extinction, or transformation of financial institutions under control unit of Federation Unity in financial institutions dedicated to the financing of fixed and spin capital associated with projects in the Country, called foment agencies.

§ 1º The extinction of financial institutions to which the caput refers article you can give? if through processes of incorporation, merger, spin-off or any other form of legally admitted societary reorganization.

§ 2º The fomenting agencies, existing on March 28, 2001, should comply with the provisions of this article, within the time set by the National Monetary Council, remaining regulated by that Colegient and submitted to the provisions of Law No. 6,024 of March 13, 1974.

Art. 2º The adoption of the appropriate measures to each concrete case give? se?á at the sole discretion of the Union, upon request of the respective controller, met the conditions set out in this Interim Measure.

Art. 3º For the purposes of this Interim Measure, may the Union, at its sole discretion:

I? acquire control of the financial institution, exclusively for privatization? la or extinguished? la;

II? fund the extinction or transformation of financial institution into non-financial institution when carried out by its respective controller, inclusive of those subjected to special regimes;

III? fund the necessary prior adjustments to the privatization of the financial institution;

IV? acquire contractual credits that the financial institution detains against its controller and entities by this controlled and refinance the credits thus acquired;

V? in exceptional character and fulfilled to the conditions specified in the art. 7º, finance partially sanitation program of the financial institution, which will necessarily contemplate its capitalization and changes in its management process capable of ensuring its professionalization;

VI? provide warranty for funding granted by the Central Bank of Brazil;

VII? fund the establishment of foment agencies for the Federation Units to enter into financing contracts or refinancing arising from this Interim Measure.

§ 1º The adoption of the measures provided for in this article will be preceded by the authorizations that are required in the legislation of the respective Federation Unit.

§ 2º The credits of which deals with the inciso IV of this article will be those existing on March 31, 1996, increased from the contractual interest pro rata die up to the date of the acquisition, in accordance with the financial conditions and charges laid down in the original contracts.

§ 3º The refinancing of which treats the inciso IV of this article will be preceded by the assumption, by the Federation Unit, of the liability debts of the entities by it controlled.

Art. 4º The financing of the necessary prior adjustments to the privatization of the financial institution, of which it treats the inciso III of the art. 3º, granted by the Union or by the Central Bank of Brazil, restricts? if the cases where there are:

I? legislative authorization of the Federation's Unit for:

a) privatization, within a time limit agreed with the Union, of the respective financial institution;

b) the use of the proceeds of privatization in payment of the financing or refinancing of which deal with the incisos III and IV of the art. 3º or, at the discretion of the Union, of another debt to this;

c) when it is the case, the offering in warranty of the shares of your property in the capital of the financial institution to be privatized; or

II? the dispropriation in favour of the Union of the shares of the social capital of the financial institution, in the form of the Decree-Law No. 2,321 of February 25, 1987.

§ 1º The cash availabilities of states, the Federal District, the Municipalities and the bodies or entities of the public power and companies by them controlled may be deposited in financial institution submitted to the privatization process or the procuring financial institution of their shareholding, up to the end of the financial year 2010.

§ 2º The transfer of the cash availabilities to the official financial institution, in the hypothesis that it treats § 1º, should follow schedule approved by the Central Bank of Brazil, depending on criteria established by the National Monetary Council.

Art. 5º The financing of which it treats this Provisional Measure, when granted by the Union, will be paid in up to three hundred and sixty monthly instalments and successive, calculated on the basis of the Price Table, winning? if the first thirty days after the signing of the contract and the following in equal day of the subsequent months, the following conditions are observed:

I? interest calculated and debited monthly, at the minimum rate of six per cent a year, on the previously updated debtor balance;

II? currency update calculated and debited monthly, based on the variation of the General Price Index-Internal Availability (PGI?DI), released by the Getulio Vargas Foundation, or other index that comes to replace it?

§ 1º The corresponding obligations in the service of the financing granted by the Union, pursuant to this Interim Measuresable, may be computed jointly with the obligations relating to the refinancing of debts provided for by Law No. 9,496 of September 11, 1997, specifically for the purposes of applying the maximum commitment limit of the Real Net Ingo? RLR referred to in art. 5º of the cited Law.

§ 2º Cessa the application of the provisions of § 1º if, decorated eighteen months of the date of the signing of the refinancing contract referred to in Law No. 9,496 of 1997, hold the Unit of the Federation control of any financial institution except foment agency.

§ 3º The provisions of § 2º apply? if only to the resources intended for institutions that remain controlled by the Federation Unit.

§ 4º For fulfillment of the provisions of this article, the Union may contract with federal public institution the financial agent services for celebration, monitoring and control of financing contracts or refinancing, the remuneration shall be borne by the Units of the Federation.

Art. 6º The Central Bank of Brazil, in the financing that it grants, for the purposes of which it treats this Provisional Measure, will be able to:

I? count exclusively with the Union's warranty;

II? accept, as a guarantee, securities or rights relating to operations of liability of the National Treasury or entities of the indirect Federal Public Administration.

Single paragraph. Except in cases where the guarantees that it treats the inciso II of this article are represented by securities of the federal furnished public debt, traded in competitive auctions, the nominal value of such guarantees is expected to exceed in at least twenty per cent the guaranteed amount.

Art. 7º In the hypotheses of the incisos III and V of the art. 3º, when there is no transfer of shareholding, or, detaining the Federation's Unit the majority of the social capital in more than one financial institution, remanescer some financial institution under its control, the participation of the Union and the Central Bank of Brazil will not be able to exceed fifty percent of the necessary resources, and the Federation's Unit shall adopt, among others, the following measures, involving, in conjunction or in isolation, resources in amount at least equivalent to that of the Union's participation:

I? early discharge of debts of the controller and of entities by this one controlled with the financial institution;

II? assumption of debt from financial institution to third parties, existing on March 31, 1996 and registered in balance sheet, including liabilities of an actuarial or labor nature;

III? capitalization of the financial institution.

Single paragraph. The funding of which treats the inciso V of the art. 3º depends, still, of favorable manifestation of the Central Bank of Brazil, until December 5, 1997, as to the proposal of the State for the fulfilment of the willing caput.

Art. 8º When the Union participates exclusively by the use of the envisaged in the inciso IV of the art. 3º, the acquisition of the credits will be conditional on that there is the competent legislative authorization for the privatization or extinction of the financial institution or its transformation into non-financial institution, restrained the provisions of the single paragraph of this article.

Single paragraph. In case the financial institution holder of the credit does not have its transferred share control nor is it extinguished, or turned into non-financial institution, the refinancing contract is expected to provide for delivery, by the Federation Unit, of privatizable assets, accepted by the Union, in amount equivalent to, at a minimum, fifty percent of the total refunded, for the purposes of later amortization.

Art. 9º In the cases of which they treat art. 7º and the single paragraph of the art. 8º, the adoption of the measures authorized in this Provisional Measure will depend still on the decision of the National Monetary Council, to which it will give in the view of:

I? approval, by the Central Bank of Brazil, of the sanitation project of the financial institution that necessarily includes its capitalization and changes in its management system capable of ensuring its professionalization;

II? opinion in favour of the National Treasury Board Secretariat of the Ministry of Finance as to the compatibility of the fiscal situation of the controlling state with the effort required by the sanitation project of the financial institution.

Art. 10. The Union shall pay for the acquisitions of control and credits and shall grant the financing of which it treats the art. 3º with National Treasury securities or upon securitization of the obligations, with a bailout deadline and interest set in act of the Minister of State for Finance, listened to the Ministry of Planning, Budget and Management.

Single paragraph. The National Treasury securities issued pursuant to the caput of this article, when held by financial institutions, may be exchanged for issuance securities of the Central Bank of Brazil, under conditions to be established by the Board National Monetary.

Art. 11. For the purpose of the provisions of paragraph (b) of the inciso I of the art. 4º, the disposal of the financial institution shall repass to the National Treasury, in up to five business days, the values received in current currency or in securities of the federal government debt.

Single paragraph. Securities and credits not understood in the caput of this article, admitted as a means of payment of the disposal of the financial institution, shall be replaced, by the divestant, by the securities of the federal public debt, for the purpose of repassing the National treasure.

Art. 12. On the hypothesis of the inciso II of the art. 4º, the net result of the privatization of the financial institution shall be used by the Union in the full or partial settlement of the financing or refinancing granted on the basis of this Interim Meas-tion.

Art. 13. It may be exercised by legal person, at the discretion of the Central Bank of Brazil, the management of financial institutions that have their control acquired in the form of the art. 3º, inciso I, well so of those who have their actions misappropriated, as per the provisions of the Decree?Law No. 2,321, of 1987.

Art. 14. The funding or refinancing granted on the basis of this Provisional Measure should rely on appropriate warranties or countermeasures, which will necessarily include the binding of own revenues and the resources of which they treat the arts. 155, 157 and 159, inciso I, letter? ?a? ?, and inciso II, of the Constitution, as well, when it is the case, representative actions of the financial institution's controlling shareholder control.

Art. 15. The financing contracts or refinancing of which it treats this Provisional Measure shall provide for, in addition to the guarantees and countermeasures referred to in the art. 14:

I? be the National Treasure entitled to withdraw, in the event of an inadimplement, against the depository bank accounts of the own revenues and resources of which it treats art. 14, the amount of the unpaid values, with the legal and contractual additions;

II? that their payments arising out of them will not be subject to limits set forth in law, resolution or regulation later than their conclusion;

III? that, in the hypothesis of non-transfer of the actuary control of the institution or non-transformation into non-financial institution, at least fifty percent of the dividends by it distributed to the controller will be used for the amortization of the financial obligations provided for in the contract.

Art. 16. The sole discretion of the Union, shall be received goods, rights and shares of ownership of Federation Unit in dation in payment of the debts incurred in the form of this Interim Measure.

Single paragraph. The goods, rights and shares will be accepted at the market price; when there is no market price, the price will be established on the basis of valuation carried out by three independent consultants hired by the parties.

Art. 17. Occurring impunctuality in the payment of financing or refinancing of which it treats this Provisional Measure, the debtor's Federation Unit will pay, from the maturity of the obligation, financial burdens equivalent to the average cost of capturing the National treasure, increased from one percent of a percent to the month, incidents over the amount arrears, without prejudice to the remaining legal or contractual cominations.

Art. 18. The financing contracts or refinancing arising from this Interim Measentate shall be concluded by June 30, 2000, with the exception of the relative inciso V of the art. 3º, whose term of celebration was exhausted on March 31, 1998.

Single paragraph. The financing or refinancing pertaining to the inciso I of the art. 3º shall only be granted to the States which shall enter, by June 20, 2000, together with the Central Bank of Brazil, under the conditions by this determined, commitment to management of the financial institution, which shall vigorate up to the date of signature of the respective contract.

Art. 19. Observed the provisions of the art. 20, does the privatization of financial institutions that have their control acquired on the basis of this Provisional Measure, of those having their shares unappropriated, as per the provisions of the Decree?Law No. 2,321, of 1987, and of other financial institutions included in the National Disestatization Program, shall be made upon public offer, ensured equal conditions to all competitors.

Art. 20. The programs of privatization or capitalization provided for in this Interim Measement will be able to contemplate the participation of the employees of the financial institutions object of the mentioned programmes.

Art. 21. Will the temporary special administration arrangements to which state financial institutions be submitted may be extended, by up to one hundred and eighty days, in addition to the deadlines set out in the Decree?Law No. 2,321, of 1987, if the respective Unit of the Federation has firmed, with the Federal Government, protocol for the implementation of the measures provided for in this Interim Measlage, or if the financial institution is in the process of privatization, duly adjusted with the Central Bank of Brazil.

Single paragraph. The extension to which the caput of this article is concerned can be made for up to five hundred and forty days, if the respective Federation Unit has firmed, with the Union or with federal financial institutions, loan agreement to sanitation of state financial institution, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States.

Art. 22. In the process of reducing the state public sector's participation in banking financial activity, the Union will be able to authorize federal financial institutions to take on the liabilities held with the public by the state financial institutions.

§ 1º The Union shall ensure that the federal financial institution assumes the liabilities to the public the equalization of the existing difference between the value received from the state financial institution in connection with the operation and the value to be paid to the Central Bank of Brazil by the resources obtained in line of specific funding to support the liabilities assumed.

§ 2º The Union credits arising from the application of the provisions of § 1º are of liability of the Controller, by virtue of the provisions of the Laws nos 6,024, of March 13, 1974, 6,404, of December 15, 1976, and 9,447, of March 14, 1997, and may the Union refinance the debt pursuant to Law No. 9,496, of 1997.

§ 3º The equalization of which it treats § 1º will observe the envisaged in the art. 10.

Art. 23. Law No. 9,496, 1997, goes on to invigorate with the following changes:

??Art. 1º Stay the Union, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States, authorized, until May 31, 2000, to:

.........................................................................................................................................................

II? taking on the loans taken by the States and the Federal District alongside the Federal Economic Box, with amparo in Resolution No. 70 of December 5, 1995, of the Federal Senate, as well as, at the sole discretion of the Federal Executive Power, other debts whose refinancing by the Union, pursuant to this Act, has been authorized by the Federal Senate until June 30, 1999;

.........................................................................................................................................................

IV? take over the furnished public debt issued by states and the Federal District, after December 13, 1995, for payment of judicial precatories, pursuant to art. 33 of the Act of the Transitional Constitutional Provisions;

V-refunding the claims arising from the assumption to which the incisors I and IV refer to, together with credits titled by the Union against the Units of the Federation, these at the sole discretion of the Ministry of Finance;

.........................................................................................................................................................

§ 2º Will not be covered by the assumption to which if refer to the incisos I, II and IV, nor by the refinancing to which the inciso V refers to:

.........................................................................................................................................................

d) the furnished debt in power of the ente itself issuer, even if through liquidity fund, or which has been put on market after 31 of debris December 1998.

§ 3º The operations authorized in this article shall bind? se?ao to the establishment, by the Units of Federation, of Restructuring and Fiscal Adjustment Program, agreed with the Federal Government.

.........................................................................................................................................................

§ 5º Atended to the requirements of § 4º, may the Minister of State for Finance, to viabilize the effective assumption referred to in the inciso I of this article, authorize the conclusion of contracts of promise of the assumption of the said obligations.

§ 6º The credit corresponding to the assumption to which refers to inciso II, in the part concerning funds of contingencies of state banks, constituted under the program of reducing the presence of the state public sector in the banking financial activity, may, at the discretion of the Minister of State of the Farm, be incorporated into the debtor balance of the debt restructuring contracts, concluded pursuant to this Act, when the use of the proceeds deposited in the respective funds.

§ 7º The possible difference between the assumption referred to in § 6º and the balance presented in the respective funds may, at the discretion of the Minister of State of the Finance, be incorporated, in up to twelve months, with remuneration to date gives incorporation by the rate change average adjusted in the daily financing ascertained in the Special Settlement and Custody System (SELIC) disclosed by the Central Bank of Brazil, to the debtor balance of debt restructuring contracts, entered into pursuant to this Act.?? (NR)

??Art. 3º ..................................................................................................................................

.........................................................................................................................................................

§ 1º For ascertaining of the relative refunded value to the furnished debt, with the exception of the one referred to in the inciso IV of the art. 1º, the basic financial conditions esthawed tabelated in the caput will be able to retroact until September 30, 1997.

.........................................................................................................................................................

§ 6º The no? establishment of the Program at the deadline fixed in the refinancing contracts, or the failure to meet the targets and commitments set out therein, will imply, while not established the Programme or during the period in which it lasers, as the case may be, without prejudice to the remaining paced cominations in the refinancing contracts, the replacement of the financial burden mentioned in this article by the average cost of capping the federal furnished debt, plus one percent, and the elevation by four percentage points of the commitment established on the basis of art. 5º.

§ 7º The application of the provisions of § 6º, with regard to the disfulfillment of the targets and commitments set out in the Programme, may be reviewed by the Minister of State for Finance, in the view of justified justification by the State.

§ 8º The amount relating to the benefits accrued between the date of signing of the refinancing contract and that of its effectiveness could be parceled up to up to thirty six monthly and consecutive instalments, by the System of Amortization Constant? SAC, with charges equivalent to the SELIC rate, winning? if the first in the first due date of the refinancing contract benefits that occurs after the effectiveness of the contract and the remaining ones, on the same subsequent dates, limited the last provision on November 30, 2002.

§ 9º The benefits referred to in § 8º are not subject to the limit of commitment to which the art relates. 5º.

§ 10. The possibility of parceling that it treats § 8º only applies to contracts that have been firmed up to December 31, 1998.?? (NR)

??Art. 6º For the purposes of application of the limit set out in art. 5º, may be deducted from the limit ascertained the expenses effectively carried out in the previous month by the refunded, corresponding to the services of the following obligations:

.........................................................................................................................................................

VII? debts of which they treat the incisies I and Il, of entities of the indirect Administration, which are formally assumed by the State until December 31, 1997;

VIII? of state financial institutions to with the Central Bank of Brazil, which are formally assumed by the state until July 15, 1998.

.........................................................................................................................................................

§ 3º The limit of commitment set in the form of this article, as of 1º June 1999, will be maintained until the values posteredin the form of § 2º are fully settled.

............................................................................................................................................... ?? (NR)

??Art. 7º?A. The payment of the remaining debtor balance on November 30, 1998 in the open graphics accounts pursuant to the refinancing contracts concluded under this Act, at the discretion of the Ministry of Finance, may be extended to November 30 of 2000, by staying the Union authorized, in this act, to charge, on that parcel, charges equivalent to the average cost of capturing the internal furnished debt of the Federal Government.

§ 1º At the discretion of the Ministry of Finance, the balance remaining debtor of the graphic account of which it treats the caput can it be parceled in up to thirty six monthly and consecutive installments, by the Constant Amortization System? SAC, with charges equivalent to the SELIC rate, winning? if the first in the first due date of the instalments of the refinancing contract that occurs after the formalization of the installment provided in this paragraph and the remaining ones, on the dates subsequent, limited the last instalment to November 30, 2002.

§ 2º The resources generated by the disposal of the goods, rights and shares delivered by the Federation's Units to the Union for the purposes of extraordinary amortization of the refinancing contracts concluded in the form of this Act will be compulsorily intended for the amortization or liquidation of the installment provided for in § 1º.

§ 3º The benefits referred to in § 1º are not subject to the limit of commitment to which the art relates. 5º.

§ 4º The provisions of this article do not preclude the sanctions arising from the defulfillment of any other contractually foreseen obligations.?? (NR)

??Art. 7º?B. Applies? if the value corresponding to the extraordinary amortization (graphic account) generated on the occasion of the effectiveness of the contract relating to the refinancing of the debt referred to in the inciso IV of the art. 1º, observed the percentage and conditions already defined in the refinancing contracts firmed with each Unit of the Federation, the provisions of the art. 7º?A.?? (NR)

Single paragraph. The financial effects arising from the provisions of § 3º of the art. 6º Amendment of Law No. 9,496, of 1997, with the wording given by this Provisional Measure, will be able to retroact up to 1º June 1999.

Art. 24. It shall be the Union authorised to assume the burden arising from the reduction of charges laid down in the contracts, by it guaranteed, concluded, by October 30, 1997, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States.

Art. 25. It shall be the Union authorised to equalize the accumulated difference, since October 30, 1997, between the average capping costs used in the composition of the financial burden adjusted in the contracts concluded, by the States, with institutions Federal public financial, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States, authorized by the National Monetary Council, and the average capturing cost of the contracting institution in the reference month.

Art. 26. It shall be the Union authorised, until October 31, 2001, to formalize additive to contracts signed on the basis of Law No. 9,496 of 1997, so as to relax the penalty provided for in Paragraph 6º of the art. 3º of the said Act.

Single paragraph. In the application of the provisions of the caput the following conditions should be observed:

I-the failure to meet the fiscal targets and commitments, defined in the Fiscal Adjustment Programmes, will imply the imputation, in the title of extraordinary amortization required together with the due benefit, of value corresponding to twenty-five hundreth percent of the Real Net Indo? Federation Unit RLR, monthly average, by non-compliency target;

II? the penalty provided for in the inciso I shall be charged for the period of six months, counted from the notification, by the Union, of the discompliance, and without prejudice to the remaining paced cominations in the refinancing contracts; and

III? in the case of full compliance with the targets mentioned in the incisos I and II of the art. 2º of Law No. 9,496, of 1997, does not apply the penalty provided for in this article.

Art. 27. It is the Union authorized to deliver resources to states, their Municipalities, and the Federal District, respected as the limit for transfers the balance of budget allocations specifically intended for purpose.

Single paragraph. Act of the State Ministers of the Finance and Planning, Budget and Management shall lay down the limits, criteria, deadlines and the remaining conditions for the delivery of the resources to States, their Municipalities, and the Federal District, and shall be signed beforehand the respective term of accession.

Art. 28. It shall be extended, until December 30, 1999, the time limit set out in paragraph? b? of the inciso IV of the art. 3º of Law No. 9,846, of October 26, 1999.

Art. 29. Judicial deposits effected in an official financial institution submitted to the privatization process could be maintained, until the regular surveying, at the privatized financial institution itself or in the procuring financial institution of its triggering control.

Single paragraph. The provisions of this article apply to the official financial institutions whose privatization process has been completed, as well as to the official financial institutions in the process of privatization.

Art. 30. It is admitted to the realization of agreement for the clearing and settlement of obligations under the National Financial System, in the hypotheses and under the standards set by the National Monetary Council.

§ 1º The realization of the clearing and settlement under the agreed terms and conditions, shall not be affected by the civil insolvency ordinance, bankruptcy, intervention, bankruptcy or extrajudicial settlement of the party to the agreement, not by applying the provisions of the final part of the caput of the art. 43 and inciso I do art. 52, both of the Decree?Law No. 7,661 of June 21, 1945.

§ 2º If, after realized the compensation of the vaouring lores due under the agreement, resting positive balance in favor of the insolvent party, it shall be transferred, by integrating the respective mass, and if there is a negative balance, it will constitute credit against the insolvent party.

Art. 31. The Executive Power shall regulate the provisions of this Provisional Measure.

Art. 32. They are convalidated the acts practiced on the basis of the Provisional Measure No. ­2.139?67 of June 22, 2001.

Art. 33. This Interim Measure shall come into force on the date of its publication.

Art. 34. Repeal? if the Provisional Measure No. 2.139?67, of June 22, 2001.

Brasilia, June 28, 2001; 180º of Independence and 113º of the Republic.

FERNANDO HENRIQUE CARDOSO

Pedro Parente