Bernardo has experience in a wide range of financing and debt transactions, with a focus on project finance for infrastructure companies. He represents national and foreign companies, sponsors, banks and other financial institutions, handling financing for multilateral and investment agencies with particular expertise. Bernardo also specializes in financing in regulated sectors, especially energy, sanitation, mining, highways, ports, airports and telecommunications. A former international associate at the office of Milbank LLP in New York, Bernardo is a member of the New York State Bar Association and licensed to practice law in New York State.
Bachelor of Laws – Universidade Federal Fluminense (UFF)
Master of Laws (LL.M.) in Corporate Governance & Practice – Stanford Law School, USA
Análise Advocacia 500 – Financial Transactions (2021), São Paulo (2021)
Chambers Global – Projects (2021)
Chambers Latin America – Projects (2021)
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On August 7, 2019, the Presidency of Republic enacted the Decree No. 9,957 (“Decree 9,957/2019“), regulating the proceeding to return public private partnerships and common concessions (“PPP”) in transport sectors (toll road, airport, railway), by mutual agreement between the private partner and the Government, for submission to a new bid (or “PPP return proceeding”), which refers the Law No. 13,448, June 5, 2017.
Decree 9,957/2019 seeks for the continuity, lawfulness and efficiency of the public services in transport sectors, as well as the clearness and suitableness of the government agencies’ decisions regarding the rebid proceeding.
In this sense, we highlight the main aspects of the Decree 9,957/2019:
(i) PPP return proceeding request: among other provisions, the first private partner shall submit a written request, considering (a) technical information to justify the convenience and opportunity to justify the PPP return (b) statement (irrevocable and irreversible) regarding the intention to start PPP return proceeding, (c) withdraw its participation in the new bid (including the direct and indirect shareholders), (d) information about the reversible assets, financing agreements, agreements with third parties and bankruptcy, extrajudicial or judicial recovery of the concessionaire.
(ii) Qualifying process: (a) the regulatory agency shall assess the feasibility of the PPP return proceeding and declare its opinion; (b) after the regulatory agency’s declaration, the Ministry of Infrastructure shall assess the suitableness of the request regarding the public policy of the sector; (c) then, the Council of the Program of Partnership of Investments (“PPI Council”) shall receive and evaluate the declarations of the regulatory agency and Ministry of Infrastructure in order to give your opinion regarding the PPP return proceeding; (d) the Presidency of Republic shall decide about the PPP return based on the PPI Council’s opinion.
(iii) The hiring of an independent audit company: the regulatory agency shall hire an independent audit company to support the PPP return proceeding.
(iv) The request of judicial recovery and bankruptcy: the amendment to the initial PPP agreement shall provide that the concessionaire will not request bankruptcy, extrajudicial or judicial recovery, until the termination of the PPP agreement.
(v) Indemnification regarding the reversible assets, not yet amortized or depreciated: the Government shall discount (a) the fines and others non-tax amounts due to the granting authority not complied until the date of the indemnification payment, (b) payments due to the Government until the termination of the PPP agreement and the payments default until the date of the indemnification, (c) the excess tariff amount regarding the suspension of the non-essential investment obligations, upon the execution of the amendment to the PPP initial agreement.
(vi) Calculation of the indemnification: the complied and overdue payments due to the Government, including goodwill, shall not be considered to the calculation of the indemnification.
Decree 9,957/2019 is essential to the Government take a step forward regarding PPP returns ongoing (such as Viracopos Airport and the BR-153 highway), contributing to the fulfillment of the Government’s concession agenda.
The Law No. 13,848/2019 (“Regulatory Agencies’ Law”), which provides rules of management, organization and social control of regulatory agencies, was sanctioned.
The law intends to guarantee functional, administrative and financial autonomy and to provide a greater transparency to regulatory agencies. The Law also establishes requirements of certain professional experience in the area of the regulatory agency.
In addition, we highlight below a summary of the main innovations brought by the “Law of Agencies”.
- Establishment of rules on decentralization of the activities of regulatory agencies;
- Regulation for agencies directors’ loss of mandate;
- Duty to adopt a periodic strategic plan;
- A five-year term to the Chairmen, without reappointment;
- Creation of an Ombudsman office, with a three-year term, without reappointment;
- A six month “quarantine” for ex-leaders to work in the regulated sector;
- Adoption of risk management and corruption prevention practices by agencies;
- Prohibition of delegating normative powers to state and municipal regulatory bodies when there is cooperation between them and the regulatory agencies;
- Provision of financial autonomy and the law extension for the Administrative Council of Economic Defense (“CADE”);
- A compulsory Regulatory Impact Analysis, for any normative act that interests economic agents, consumers or users of the services provided by the regulated sector.
Some provisions were vetoed by the Executive Branch. Among them, the three-name list for the agencies’ members selection. According to the government, the measure unduly restricted “the constitutional competence conferred to the head of the Executive Power” to indicate the Directors.
Another veto imposed was to the provision for a mandatory annual submission of the agencies’ accounts to the Senate, for accountability purposes. The ban on reappointment of current directors was also rejected.
There was also a veto added to the section that determined a 12-month quarantine for the appointed Directors that were affiliated to private companies.
Now all the vetoes will be voted in a joint session of the National Congress, which holds the final decision.
The Law shall enter into force 90 (ninety) days after its sanction.
For more information, please contact the partners of the Infrastructure and Energy practice of Mattos Filho.
Areas of expertise
The Brazilian National Agency of Petroleum, Natural Gas and Biofuels (“ANP“) published the new ANP Resolution No. 785/2019 (“Resolution“), which regulates the procedures for the assignment of agreements of oil and natural gas exploitation and production (“E&P“) and the creation of security interests over rights arising out of the E&P agreements.
The settlement of new rules about security interests over rights arising out of E&P agreements is an ANP innovation that is intended to encourage new financing of E&P assets in Brazil. The Resolution has brought Brazil closer to the other international practices with regard to Reserve Based Lending (RBL).
With regards to the new rules for the procedures for assignment of agreements, the ANP consolidated and ratified in a single normative act practices that were already adopted by the companies and accepted by ANP but that were solely described in the concession and production sharing agreements, in the Manual of Assignment Procedure (“Assignment Manual“) and other guidelines available on ANP’s website and in the opinions of the ANP’s Federal Prosecutor’s Office.
Please find below a summary of the main aspects provided by the Resolution.
ASSIGNMENT OF AGREEMENTS
In relation to the new rules concerning the assignment procedure, the following points deserve special attention:
In addition, the Resolution adopted specific procedures and rules for each type of act: (i) transfer of rights and change of operator (Articles 8 to 12); (ii) merger, spin-off and incorporation (Articles 13 to 16); and (iii) replacement and exemption of performance bond (Articles 17 to 19).
Factual assignment (Article 6): The Resolution expressly prohibits (i) the contracted companies from factually transferring their E&P rights or (ii) the transferee from exercising any influence over the management and execution of the E&P agreement, without the prior approval of ANP and before the amendment to the E&P agreement is effective.
Change of corporate control (Articles 30 to 33): The Resolution also ratified that the change in the company’s corporate control is not subject to ANP’s prior approval, being only necessary to give notice to ANP within 30 days as from the filling. Please note that the Resolution also authorizes the notice to be given before the change of corporate control is effective.
Assignment Manual (Article 35): The Assignment Manual will continue to exist and to be available on ANP’s website, containing the specific procedures for the assignment procedures and the list of required documents and forms. These documents are expected to be updated soon by ANP in order to be in accordance with the new Resolution.
It is important to note that the Resolution allows the withdrawal of the assignment request at any time until the execution of the amendment to the E&P agreement.
Term and effectiveness of the assignment (Article 42): The assignment will become valid and effective as of the execution date of the amendment to the E&P agreement, which shall take place within 30 days, counted from the notice of the decision by ANP or the Federal Government authorizing the act.
The Resolution also allows the parties to agree, and provide under the amendment to the E&P agreement, on another date for the assignment to be effective, provided that the chosen date is posterior to the execution date and within up to 60 days, counted from the publication of the decision that authorized the assignment.
These rules are of the utmost importance and must be taken into consideration when concluding agreements for the assignment of E&P rights.
It is also important to highlight that in the event of a merger, spin-off or incorporation, the assignment will also become effective as of the execution of the amendment to the E&P agreement, but the effectiveness will relate back to the date of filing of the respective corporate document.
Qualification (Article 46): The Resolution also ratified the rule that qualification shall be carried out by ANP based on the rule of the most recent bid tender (considering the time of request of the assignment approval).
SECURITY INTERESTS OVER RIGHTS ARISING OUT OF THE E&P AGREEMENTS (RBL)
In Brazil (as in the United Kingdom, Norway and some countries in Africa), the ownership of oil reserves belongs to the State. Therefore, in Brazil is not possible to create security interests over the reserves themselves and lenders must look to take security interest over the borrower’s contractual rights under the E&P agreements. By way of comparison, in the United States, for onshore fields, is possible to own the oil reserves when still in the ground, meaning that mortgages can be taken over fields and reserves.
The Resolution expressly rules the granting of security interests over the concession rights and the possibility to assign the concession itself and its emerging rights in case of foreclosure of the security interest, in line with many other international RBL practices.
Please find below the main rules established by ANP:
Security interests over quotas or shares of the companies that hold the concession (Article 21): The perfection of security interests over quotas or shares will not be subject to the prior approval or communication to ANP. Thus, in theory, both pledge and fiduciary assignment of quotas/shares will be permitted.
Nevertheless, the foreclosure of the security interest will depend on the opening of the assignment procedures and its prior approval by ANP if it implies in a change in the borrower’s corporate control that results in the replacement of the performance bond issued by the previous controlling company.
Necessary documentation for credit claims (Articles 20, 23 e 24): For the perfection of agreements creating security interests over rights arising from E&P agreements (“Security Agreements“), the borrower will only be required to deliver a notice to ANP, jointly with a copy of the Security Agreement itself, within 30 days from the execution of the agreement.
Therefore, ANP’s approval will not be necessary for the constitution of the security interests, provided that the borrower remains as a party, with management powers under the E&P agreement.
Although not entirely clear in the Resolution, such limitations will probably also apply to contracts creating security interests over quotas or shares of the concessionaires/contractors.
Prohibited clauses (Article 22): In order to avoid a factual assignment without the prior approval of ANP, the Resolution prohibits clauses in the Security Agreements that: (i) result in the transfer of ownership of the E&P Agreement prior to the execution of an amendment formalizing the assignment, (ii) allow the lenders’ influence over the management or operation of the E&P agreement, or (iii) restrict the exercise of voting rights of the concessionaire/contractor in connection with management or operation matters of the E&P Agreement.
After the beginning of a foreclosure procedure, the restrictions set out in items (ii) and (iii) above will not apply so as to preserve and maintain the assets, assure the compliance with the obligations of the E&P Agreement, conclude the assignment procedure and transfer the operation.
Lender’s rights (Articles 24 and 26): Prior to the foreclosure of the security interest, the lender of the E&P agreement may only monitor the performance of such agreement, being prohibited to the lender to exercise the rights arising from the E&P agreements before the amendment is effective, even after the foreclosure of the security interest.
Notice about the foreclosure of the security interest (Articles 25 and 27): The lender must give notice to ANP and to the other consortium members (in case there is a consortium) about the beginning of the foreclosure of the security interest within 5 and 30 days, respectively, from the first executory act.
Transfer of ownership (Articles 26 and 27): The transfer of ownership of the E&P agreement arising from the foreclosure of the security interest: (i) will be understood as an assignment, and shall follow the procedures provided in the Resolution, depending, therefore, on the prior and express authorization of ANP or the Federal Government, and (ii) will be effective solely after the execution of the amendment to the E&P agreement.
In case there is a transfer of the ownership, the lender shall present the request for assignment within 180 days, as from the effectiveness of the foreclosure.
It should be pointed out that the progress of the assignment procedures does not depend on the consent of the borrower and that the lender may represent the borrower in the assignment procedure when (i) the security document contains a power-of-attorney provision or instrument, (ii) the default that gave rise to the foreclosure is attested by the creditor, and (iii) the remaining parties to the E&P agreement, if applicable, agree to such representation.
Although not entirely clear in the Resolution, such rights and measures will probably also apply to the assignment procedure when due to the foreclosure of security interests over the quotas or shares of the concessionaires/contracted parties that implies in the need to replace the performance bond.
Foreclosure of the security interest (Article 29): In case of foreclosure of security interests in which the borrower is the operator of the E&P agreement in the exploration phase, the lender may request the suspension the E&P agreement for a period up to 180 days. After the filing of the assignment request, such suspension shall remain valid until the execution of an amendment confirming the assignment. In case the 180-day period elapses without the presentation of the assignment request or the rejection thereof, the E&P Agreement will once again be effective.
The full content of the Resolution 785/2019 can be accessed here (in Portuguese).
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