Disciplines
and consolidates the rules applicable to leasing transactions.
The Central Bank of
Brazil (BACEN); in accordance with section 9 of Law 4595, of December 31, 1964,
informs that the National Monetary Board (CMN), during a session held on August
28, 1996, based on Law 6099, of September 12, 1974 (with the alterations set
forth in Law 7132, of October 26, 2993) has decided:
Section 1 – To approve the attached regulations, applicable to operating lease
transactions; the lease transactions in general to be executed with
individuals; also consolidating the regulations applicable to financial lease
transactions in general.
Section 2 – BACEN is authorized to take the necessary measures and issue the
rules it might consider necessary to enforce the provisions set forth in this
Resolution.
Section 3 – This Resolution will come into force on the date of its publication
in the Official Gazette.
Section 4 – Resolutions 980/84, 1452/88, 1474/88, 1681/90, 1686/90, 1769/90;
section 2 of Resolution 2276/96 and BACEN’s Directives (Circulares) 903/84,
2064/91 and section 2 of BACEN’s Directive (Circular) 2706/96, shall be deemed
as revoked at the time this Resolution comes into force.
ANNEX TO RESOLUTION 2309
CHAPTER I
Section 1 – Leasing Transactions, as defined in Law 6099 of September 12, 1974
(with alterations made by Law 7132 of October 26, 1983), can only be held and
offered by (i) legal entities having such activity as their main business,
purpose; (ii) multiple banks authorized to hold and offer lease transactions;
and (iii) those financial institutions which, in accordance with section 13 of
this Resolution, are duly authorized to execute sale and lease back
transactions either with the seller of the asset as lessee or legal entities
affiliated or interdependent to the former.
Sole Paragraph – The transactions foreseen in this section
may be financial or operating.
Section 2 – To hold and offer the transactions provided in this Resolution,
leasing companies and the financial institutions referred to in the previous
section shall organize and maintain a technical department duly structured and
supervised by one of its respective executive officers.
Sole Paragraph – Those leasing companies and financial
institutions shall submit the name of the respective executive officer in
charge of the leasing transactions department to BACEN’s representative body in
the jurisdiction.
Section 3 – Incorporation and business operation of legal entities having to hold
and offer leasing transactions as their main business purposes, known as
leasing companies, depend on BACEN’s authorization.
Section 4 – Leasing companies shall be
organized as corporations, being submitted, notwithstanding the eventual
peculiarities, to the same requirements applicable to incorporation and
operation of financial institutions in general, set forth in Law 4595/64, and
otherwise related legislation applicable to the National Finance System. The
expression “Arrendamento Mercantil”, shall be part of such Companies’ trade
names.
Sole Paragraph – The expression
“Arrendamento Mercantil” in the trade name is restricted to the companies
referred to in this section.
Section 5 – A lease transaction shall be considered as a financial lease, when:
I – the
installments and other payments to be made by the lessee in accordance with the
agreement are usually sufficient to allow lessor to recover the leased asset’s
purchase price along with lessor’s fees during the term of the lease;
II - costs and expenses related to
maintenance, technical assistance/support and other services related to the
operation of the leased asset are under lessee’s responsibility; and
III - the
price for the purchase option is freely stipulated by the parties, the use of the
fair market value is also authorized.
Section 6 – A lease transaction shall be
considered as an operating lease, when:
I - the installments to be paid by lessee
cover the cost of the lease and the services related to delivery of the asset
to lessee. The present value of the total amount of such installments shall not
exceed 90% of the asset’s purchase price paid by lessor.
II - the term of the lease is shorter than 75%
of the asset’s useful life.
III - the price for the purchase option is the
fair market value of the asset.
IV - there is no stipulation providing for
payment of residual value (VRG).
Paragraph 1 - The transactions referred to in this section are restricted to
multiple banks authorized to hold and offer lease transactions and to leasing companies.
Paragraph 2 – In the calculation of the
present value of the payments to be made by lessee, the applicable discount
rates shall be equivalent to those rates used in the calculations of the lease
installments in the respective agreement.
Paragraph 3 – Costs and expenses related to maintenance, technical
assistance/support and other services related to the operation of the leased
asset are either under lessor or lessee’s responsibility.
Section 7 - Lease transactions shall be
executed in writing, by means of a public or private deed, which shall contain,
at least, the following provisions:
I - description
of the leased assets, with all details necessary for perfect identification of
such assets.
II - term of the lease.
III - the
amount of the lease installments or the means for calculation of it, along with
a criterion for such installments’ adjustments.
IV - means
and schedule of lease installments’ settlement, distance between maturity dates
shall not exceed 6 months, unless in the case of transactions executed for the
benefit of rural activities, when distance between maturity dates shall not
exceed 1 year.
V - lessee’s
choices to purchase or return the asset, or renew the lease and respective
conditions to be met by lessee in every case.
VI - lessee’s right to purchase the leased
assets, by paying the price already stipulated in the agreement or the amount
resulting from the criterion stipulated in the agreement for the
appraisal/calculation of the purchase option’s price;
VII - costs and additional expenses, including
expenses related to technical assistance/support, maintenance and other
services pertaining to leased asset’s operation, being also admitted, in case
of financial leases:
(a) a provision stipulating lessee’s
obligation to pay the guaranteed residual value (VRG) at any moment during the
course of the agreement, such payment not being considered as an anticipation
of lessee’s purchase option;
(b) the adjustment of the amount stipulated
as the purchase option and the amount pertaining to the guaranteed residual
value (VRG).
VIII - conditions
for the eventual substitution of the leased assets, including in case of loss,
for other similar but better suited to fulfill lessee’s needs. Such
substitutions shall be carried out through an amendment to the original lease
agreement.
IX - other liabilities/responsibilities agreed
on by parties, resulting from:
(a)
undue or improper use of the leased assets.
(b)
insurance coverage.
(c)
loss and damages inflicted to third parties resulting
from the use of the leased assets.
(d)
liabilities resulting form malfunctions and/or
inadequacies of the leased assets.
X - Lessor’s right to inspect the leased
assets and to request from lessee the necessary action to keep the assets in
good condition.
XI - lessee’s liabilities in case of:
(i) default in the timely settlement of its
obligations, being the fine on late payments limited to 2% of the amounts in
arrears.
(ii) destruction, demise or loss of the leased
assets.
XII - Lessee’s right to transfer to third parties
in the Brazilian territory, so long as lessor expressly consents, its rights
and obligations resulting from the agreement, with or without recourse.
Section 8 – The agreements shall provide for the following minimum terms of
duration:
I - In case of financial leases:
(a) 2 years, between the date of lessee’s
formal acceptance of the delivered assets and the maturity date of the last
lease installment, in case of leased assets with a useful life equal to or
shorter than 5 years;
(b)
3 years, counted in a similar manner to (a) above, in
case of other assets.
II - 90 days, in case of operating leases.
Section 9 – Lease agreements in which
the respective funding directly or indirectly results from cross border loans
or similar shall contain an exchange rate variation clause.
Section 10 – A lease transaction shall be
regarded as a purchase and sale transaction in case the purchase option is
enforced prior to the pertinent minimum term set forth in section 8 above.
Section 11 – Assets, manufactured in Brazil or abroad, and real estate may be
leased to lessee, so long as the lease is for the benefit of lessee and the
asset specifications are laid down by lessee.
Section 12 – Lease transactions with individuals and legal entities as lessees are
expressly permitted.
Section 13 – Lease transactions in which seller of the leased asset is the lessee,
or in which companies affiliated or interdependent to the seller of the asset
are lessees shall comply with the peculiarities applicable to financial leases,
also being submitted to the requirements foreseen in this Resolution.
Paragraph 1 – The above referred transactions can only be executed with legal
entities, as lessees.
Paragraph 2 – Multiple banks authorized to deal with investments, development financing
and real estate financing, and, also, investment banks, development banks,
savings banks and real estate financing companies are also authorized to hold
and offer the transactions referred to in this section.
Section 14 – In case of recovery or repossession of the leased assets, leasing
entities are authorized to:
I - keep
the assets in their respective fixed assets’ accounts for a maximum term of 2
years;
II - sell or execute a new leasing transaction
involving such assets, with third parties.
Sole paragraph – The provisions set forth in this section are
also applicable to those assets that were transferred to the leasing entity as
a means of settlement of other obligations (“datio pro soluto”).
Section 15 – Multiple banks authorized to hold and offer lease transactions and
leasing companies may execute, as lessees, cross border lease transactions with
individuals or legal entities domiciled abroad, for the strict purpose of
executing sublease transactions in Brazil with legal entities as lessees.
Sole paragraph – The lease transaction referred to in this
section shall be registered with BACEN.
Section 16 – Multiple banks authorized to hold and offer lease transactions and
leasing companies may acquire, on the domestic market, rights and obligations
resulting from cross border leases, for the strict purpose of subsequent
execution of sublease transactions, in accordance with the previous section.
Section 17 – Sublease transactions, in which the foreign lessor is a direct or
indirect affiliated company or and interdependent company to the sublessee
domiciled in Brazil, according to definitions set forth in section 27 below,
are strictly forbidden.
Section 18 – Multiple bank authorized to hold and offer lease transactions and
leasing companies, whenever acting as sublessor in a sublease transaction,
shall execute with the sublessees domiciled in Brazil financial sublease
agreements, in accordance with the requirements applicable to financial lease
transactions, transferring to sublessees any and all costs, taxes, fees,
brokerage fees and other expenses related to the obtaining of the leased asset
as well as the other conditions foreseen in the cross border lease transaction
executed with the foreign lessor, along with sublessor’s fees, including those
fees related to eventual acquisition of rights and obligations in agreements,
being such expenses incorporated in the cost of the leased asset.
CHAPTER
VII
Section 19 – Leasing companies may employ in their business not only their own
resources but also funding resulting from:
I - International loans;
II – Loans
and other financing facilities offered by domestic financial institutions
including those indexed in foreign currency (Law 4131-Res. 63);
III - governmental financing programs offered by
public financial institutions;
IV - debentures and commercial papers
(promissory notes);
V - assignment of lease agreements and lease
receivables;
VI - inter-bank deposits (CD’s), according to
the applicable legislation;
VII - other means of fund-raising which are
authorized by BACEN.
Section 20 – Leasing companies and other financial institutions authorized to hold
and offer lease transactions may execute, as borrowers, international loans
with foreign entities for the following purposes:
I - raise funds for the purchase of leased
assets;
II - purchase,
as assignees, lease receivables indexed in foreign currency resulting from
lease agreements;
III - purchase,
as assignees, lease agreements indexed in foreign currency, provided the
restrictions stipulated in Section 22 below are followed.
Section 21 – Leasing companies may raise funds from financial institutions
affiliated or interdependent to the former, through loans, and other financing
facilities, so long as the fees and interest rates stipulated in such transactions
are equivalent to those usually charged in transactions executed with third
parties.
Section 22 – Transactions providing for the assignment and purchase of lease
agreements, on the domestic market, except for those referred to in Section 13
above, are restricted to multiple banks authorized to hold and offer lease
transactions and leasing companies.
Section 23 – The payment for the acquisition of lease agreements in which (i) the
leased assets were purchased with funds raised abroad or (ii) the lease
receivables are indexed in foreign currency, must be made with funds raised
abroad. Same is applicable in case of acquisition of lease receivable indexed
in foreign currency.
Section 24 – Leasing companies may offer, as a collateral of the loans (domestic
or international) executed by the former as borrowers, a pledge of lease
receivables.
Section 25 – The assignment of lease agreements, as well as lease receivables, to
entities domiciled abroad shall be previously approved by BACEN.
Section 26 – Multiple banks authorized to hold and offer investment or development
transactions, as well as investment banks may use funding raised abroad in
accordance with CMN’s Resolution 63, of August 21, 1967, in the lease
transactions referred to in section 13 above.
Paragraph 1 – Lessees in such lease transaction shall be legal entities.
Paragraph 2 – The portion of the foreign funding mentioned above, which is already
recovered through the payment of the referred lease installments may be used
again in other lease transactions, in other loans or in other investments duly
authorized and available to such type of funding.
Paragraph 3 – The minimum terms set forth in Section 8-I above provided, the
transactions referred to in this section shall match the term of the foreign
loan, and the monies shall be maintained in the Brazilian territory according
to conditions and terms approved by BACEN at the time of the remittance to
Brazil of such funds was authorized.
CHAPTER
VIII
Section 27 - For the purpose of Section 2, paragraph 1, of Law 6099, of September
l2, 1974 and this Resolution, a legal entity (or as the case may be, an
individual) shall be deemed as affiliated or independent, in the following
events:
I – the
lessor holds, directly or indirectly, 10% or more of referred company’s
(stock);
II – lessor’s
executive officers or board members, or respective husbands and wives or
relatives (up to 2nd degree of relationship) hold, jointly or
separately, directly or indirectly, 10% or more of the referred company’s stock;
III – lessor’s
shareholders holding 10% or more of lessee’s shares, also hold, directly or
indirectly, 10% or more of the company’s stock;
IV – to hold, directly or indirectly, 10% or
more of lessee’s stock;
V – the
Company’s executive officers, members of the board, or respective husbands or
wives or relatives (up to 2nd degree of relationship) hold, jointly
or separately, directly or indirectly, 10% or more of lessor’s stock;
VI – the
referred company’s shareholders, or partners holding 10% or more of the
former’s stock also hold, directly or indirectly, 10% or more of lessor’s
stock;
VII - in
case the referred company’s administrators are, in full or in part, also
administrators of the lessor.
CHAPTER
IX
Section 28 – Leasing companies and the financial institutions referred to in
section 13 above, cannot execute lease transactions with:
I - individuals
or legal entities regarded as affiliated or independent to the companies
mentioned above;
II – their
executive officers, members of the board of directors, their respective
husbands and wives and relatives (up to 2nd degree of relationship);
III – the manufacturer of the asset.
Section 29 – Leasing companies cannot execute loans, as lenders, with individuals
and non-financial entities.
CHAPTER
X
Section 30 – BACEN may stipulate criteria for amortization of lessee’s obligation
in lease agreements, taking into consideration the best possible compliance
with the minimum terms set forth in Section 8 above.
Section 31 – Leasing companies’ available resources, when not maintained in cash,
may be freely invested on the market, so long as the limits and other
regulations applicable to each type of investment are complied with.
Section 32 - Leasing companies must comply with the legislation applicable to financial
institutions in general, including BACEN prerogatives to grant authorizations
set forth in Section 10-X of Law 4595/64 and to approve leasing companies’
officers, members of the board of directors and/or other consulting bodies
and/or statutory audit committees or similar, in accordance with referred
legislation and other subsequent rules.
Section 33 – Transactions that do not comply with this Resolution’s dispositions
shall not be regarded as lease transactions.