Contributed By Tauil & Chequer Advogados in association with Mayer Brown
Project finance has historically been the preferred form of financing for infrastructure projects in Brazil and the Brazilian project finance market has remained active through recent economic and market fluctuations.
Over the last couple of decades, the vast majority of infrastructure projects have been funded by the government-owned Brazilian Development Bank (BNDES) and other public sector banks and related institutions. These include Banco do Brasil, Caixa Econômica Federal (CEF) and FINEP (which finances scientific research, technological development and innovation) as well as the regional development banks, particularly Banco do Nordeste (BNB).
At the end of 2017, in reaction to unprecedented questions over its scope in the Brazilian market, BNDES started to re-evaluate its long-standing role as one of the sole providers of funding for infrastructure projects in Brazil.
By stepping aside, the Brazilian government is seeking to open the space for private capital to help stimulate investment, which is seen as key to paving the way for sustainable growth in the long term.
Project finance players have reacted by looking at different source of funds for financing infrastructure projects, in combination with those traditional sources of loans that are still available. The participation of the capital markets (through local debentures with the tax benefits of Law 12,431/2011), private banks, multilaterals and export credit agencies (ECAs) has increased considerably over the last few years.
Notwithstanding the above, different challenges are still present and impacting the expansion of the long-term lending market. The COVID-19 pandemic has also postponed important projects and its real effect on the country's economy, and how long a return to growth will take, are still unknown.
Several expected future developments int the Brazilian project finance market are set out below.
Primary sponsors of infrastructure projects in Brazil have generally been domestic construction companies, foreign international infrastructure companies, service and equipment providers, and private equity funds.
Infrastructure projects in Brazil have been funded almost exclusively by BNDES and other public banks – including Banco do Brasil, Caixa Econômica Federal and FINEP as well as the regional development banks, particularly Banco do Nordeste – through project finance transactions.
Multilateral institutions, ECAs and institutional investors are also active in Brazil’s project finance market. Most commercial banks in Brazil operate on-lend BNDES/BNB credit lines or provide bank guarantees for such public banks, which normally cover all payment obligations of the borrower until the financial completion of the project (ie, covering construction risks, and physical and financial completion). Commercial banks have also focused on bridge loans and/or other short-term loans.
Debentures have been widely used as a complementary source of funds for infrastructure projects.
The overall regulatory system with respect to infrastructure in Brazil is based on the Constitution and several Brazilian laws and regulations, including the Concessions and PPP Laws. Each infrastructure sector (ie, energy, roads, rail, ports, airports, water) is regulated by specific laws. Public services in Brazil can only be undertaken by private parties using concessions, contracted through public auction. Exemptions are only accepted in specific situations (ie, authorisations). Each infrastructure sector has its own regulatory authority.
PPPs were introduced into Brazilian federal legislation in 2004 through Federal Law 11,079/2004 (the PPP Law) in order to enable the federal government and authorities from different levels to overcome infrastructure gaps countrywide. Formerly, infrastructure projects were implemented through public concession, regulated by Federal Law 8,987/1995 and Federal Law 9,074/1995, applicable to the provision of public services.
The PPP Law sets forth general provisions for public-private partnerships and created two additional forms of concession: sponsored concession and administrative concession, both designated public-private partnerships. A sponsored concession is the concession of public services or public works, as provided by Law 8,987/1995, with a financial contribution from the grantor authority to the private party (concessionaire) in addition to tariffs charged to the final users. An administrative concession involves the supply of services of which the government is either the direct or indirect user. Since there is no service provided to the final user, administrative concession does not encompass tariff revenues, but only a financial contribution from the grantor authority.
Due to the compensation paid by the grantor authority, public-private partnerships are suitable for projects that are not financially sustained by the project's own revenues alone, expanding the horizons of concessions’ usage and making them attractive to private investors.
Despite the extensive use of public-private partnerships, the PPP Law sets forth restrictions related to the project value, contract term and object. PPPs are allowed only for projects with a contract value of at least BRL10 million, a minimum term of five years and a maximum term of 35 years.
One of the measures adopted by the Brazilian government to increase and strengthen the role of the private sector in infrastructure projects is the creation of the Brazilian investment partnership programme (programa de parcerias de investimentos, or PPI), introduced by means of Law 13,334/16. The PPI’s purposes include increasing investment opportunities, creating jobs and stimulating technological and industrial development in line with the country's social and economic development goals, in order to put Brazil back on the development track.
To this end, the PPI has created a centralised monitoring mechanism, facilitating the transparency and planning of infrastructure projects.
It is clear that the Brazilian government is aware that public-private partnerships and infrastructure projects are required to help the country to recover economically and definitively lift it out of recession, and it is adopting different measures to promote public-private partnerships and infrastructure development.
Key Project Finance Issues and Risks
To a certain degree, the strength of the sponsor and the extent of existing commercial relationships with such a sponsor may dictate the ability of a project to raise funds and influence the relevant financing terms, although a detailed risk analysis will also be relevant.
Some of the topics and issues that would need to be considered in arriving at the optimal structure and risk allocation for projects in Brazil – in addition to the typical risks of an international project finance transaction, including construction risk, operational and offtake risk, and third parties – include:
Typical Project Finance Structures
Financing structures commonly used in project finance transactions in Brazil include commercial lending facilities, multilateral lending facilities and capital market offerings for purposes of funding energy or infrastructure projects.
A common credit instrument used by special purpose vehicles to raise capital is known as a bank credit note (cédula de crédito bancário, or CCB). A CCB is a long-form credit note that allows the debtor to specify in the document the terms and conditions agreed upon with the lender, similarly to promissory notes in most common law jurisdictions.
For local project bonds (debêntures de infraestrutura), with the benefits of Article 2 of Law 12,431/2011) the indenture (escritura de emissão) is the main document providing for the terms and conditions of the debt, covenants and events of default.
Brazilian development banks negotiate with the client on the terms of financing, entering into a direct credit agreement with them, but they usually require a bank guarantee to be provided by a network of accredited financial institutions to cover the risks of payment during the construction, commissioning and ramp-up (the period required to reach long-term average availability or usage).
For all the structures mentioned above, the use of shareholder capital as a source of funding is common in Brazil, including in situations where, for example, equity investors might be required to ensure the maintenance of certain ratios under the terms of a project financing or in the case of cost overrun.
To the extent a capital structure will consist of a mix of public banks loans (backed by guarantees from commercial banks), infrastructure debentures offerings and shareholder capital, special attention will need to be paid to how these instruments interact.
The security package in project finance transactions in Brazil will normally, at least, include:
Under Brazilian law, security arrangements are usually created by a pledge, a fiduciary sale/assignment or a mortgage. A pledge consists of the delivery of transferable movable assets by a debtor to its creditor. A fiduciary sale/assignment is a type of security interest pursuant to which the ownership of the underlying asset is transferred to the creditor, while the direct possession remains with the guarantor, being liable for duties of the bailee in relation to the asset. A mortgage is a security created over any real estate property and must be executed in a public deed.
Security agreements and deeds of mortgages are formal documents that must comply with certain requirements, including that they:
As a general rule, under Brazilian law, each asset granted as security must be duly individualised in the relevant security agreement. In this sense, the floating charge concept is not generally accepted in this jurisdiction.
However, there are mechanisms recognised by the Brazilian regulation that can be used in order to achieve the effect of a floating charge. For example, if a company intends to grant as collateral all its future receivables derived from commercial agreements or new equipment, it is possible to establish in the security agreement periodic amendments related to the section that individualises the assets (commercial agreements, equipment, etc), thereby adding new assets acquired since the last amendment.
As an exception to the general rule, the Brazilian Corporation Law (Law 6,404/1976) expressly authorises the creation of a floating charge by Brazilian companies in connection with the issuance of debentures. In this case, a floating charge ensures the debenture holders a general privilege over the assets of the company, although this charge does not prevent the negation of the assets by the company. If the debentures guaranteed with a floating charge are issued abroad, a previous authorisation from the Central Bank of Brazil is required.
Brazilian security agreements need to be registered either with the Registry of Deeds and Documents or the Real Estate Registry. Mortgages, fiduciary sale, assignment of real property and some specific types of pledge are registered with the Real Estate Registry, while all other types of collateral are registered with the Register of Deeds and Documents. Other registrations may be required depending on the type of assets being granted as security, such as shares.
Each asset needs to be duly individualised in the relevant security agreement.
Generally, there are no restrictions in connection with the granting of security or guarantees. Please note the previous comments on the main aspects relating to the creation of a security interest over assets.
Before entering into the relevant security agreement, lenders usually carry out due diligence on the company and on the assets that are being granted as security. This due diligence comprises the search of the appropriate Registry of Deeds and Documents (or with the appropriate Real Estate Registry, as the case may be) for liens.
The release of guarantees depends on the type of assets that were granted as security and the form of the original security agreement. As a general rule, a simple release letter executed by the creditor/lender should suffice, along with the subsequent registration of that letter with the registry in which the original security agreement was filed.
A secured lender can enforce its collateral in the event of partial or total default. The conditions for enforcement of collateral are defined in the security agreement.
Under the Brazilian Code of Civil Procedure, a creditor may make use of a general collection lawsuit to enforce collateral and/or guarantees whenever their claims are based on an instrument for a certain, liquid and payable obligation (ação de execução). This instrument may be judicial (ie, a final court decision in a lawsuit) or extrajudicial.
A creditor that has a fiduciary guarantee shall use either judicial or out-of-court actions to receive the assigned credits and exercise other rights granted to it under the loan for the sale of the real estate.
In a company shares pledge, enforcement of the claim requires the filing of a lawsuit to collect the claim and enforce the guarantee previously granted (by means of the compulsory conveyance of the shares by the creditor or the sale of the asset given as collateral to a third party). In this case, the proceeds of the sale apply in the satisfaction of the debt.
The compulsory conveyance of the shares by the creditor, or the judicial sale, must comply with the shareholders' agreement or partners' agreement, as well as the provisions of the Brazilian Code of Civil Procedure.
It is important to note that there are limited circumstances in which the lender may keep the collateral as payment, in particular:
Also, the pledging creditor may proceed with the extrajudicial sale of the shares if this was contractually permitted or has been previously and irreversibly authorised by the debtor through an irrevocable power of attorney.
The same procedure will occur in a mortgage enforcement scenario.
Brazilian law recognises the autonomy of parties in their choice of the law applicable to an international contract. Under the Brazilian Code of Civil Procedure, Brazilian courts do not have jurisdiction to preside over actions when, in an international agreement, the parties agree on an exclusive foreign jurisdiction, and this argument is raised by the defendant in the defence.
Furthermore, Article 9 of the Law of Introduction to the Norms of Brazilian Law provides that the law of the country in which the obligations are established shall apply in order to govern those obligations.
By the same token, Law 9,307/1996 (the Arbitration Act) promotes the autonomy of parties, whether in domestic or international contracts, to choose the applicable law in the arbitration agreement. According to the Arbitration Act, parties may even determine the general principles of law or customs to be applied in their relationship. It is important to note, however, that such choice of law or general principles shall not undermine public order.
The clear right of parties to choose the law applicable to a contract represents Brazilian law's alignment with the law in force in several countries. This has positive consequences for international legal and commercial relationships.
Lastly, it is important to note that, as a practical matter, Brazilian courts do not easily apply foreign laws in judicial proceedings. The practice is, rather, more commonly seen in arbitration proceedings in respect of the presentation of legal opinions regarding the interpretation of material law.
A foreign decision is only enforceable in Brazil after the ratification or the granting of exequatur to the rogatory letters, or the recognition of a foreign judgment by the Brazilian Superior Court of Justice, unless otherwise provided by law or treaty. The ratification or the exequatur or the recognition of a foreign judgment by the Brazilian Superior Court of Justice is strictly limited to the analysis of formal requirements. Issues relating to the merits of the case shall not be reviewed by the Brazilian Superior Court of Justice.
In addition, it is important to note that, as set forth in Article 963 of the Brazilian Code of Civil Procedure Law, the following are indispensable requirements for the ratification of a decision:
Furthermore, it is important to note that only the Brazilian judicial authority is competent to hear actions relating to real estate situated in Brazil.
Under the Arbitration Act (Law 9,306/1996), a foreign arbitral award shall be recognised or enforced in Brazil in accordance with international treaties effective in domestic law, in particular the New York Convention. Such a decision must be confirmed by the Brazilian Superior Court of Justice.
It is for the Brazilian Judicial Authority, to the exclusion of all others, to hear cases related to real estate located in Brazil. In the case of a mortgage (a temporary, conditional pledge of property to a creditor as security for repayment of a loan) given in a foreign loan, the foreign lender is necessarily tied to Brazilian jurisdiction in order to enforce its collateral.
Attention should be paid to the fact that a lawsuit filed before a foreign court does not operate lis pendens, and that the filing of such a suit does not prevent Brazilian courts from hearing the same action or those related to it, unless there are provisions to the contrary in international treaties or bilateral agreements in effect in Brazil.
Lastly, enforcement might generally be impacted by insolvency, bankruptcy, liquidation and other laws of general application relating to or affecting the rights of creditors under a loan or security agreement.
Under the current foreign exchange regulation in force in Brazil, individuals or legal entities resident in Brazil are allowed to enter into loan agreements with foreign lenders (individuals or legal entities, related or unrelated, financial institutions or not) whereby the Brazilian resident agrees to borrow a certain amount of money from the foreign lender, and the foreign lender agrees to lend this amount of money to the Brazilian resident. In addition, most of the terms and conditions of the loan agreements (such as fees, commissions, interest rate, default rate, security, covenants, events of default and collateral) may be freely negotiated between the parties.
Under Brazilian regulations, the granting of guarantees by Brazilian companies in favour of foreign companies or lenders does not require any special approval by the Brazilian regulatory authorities. However, to enable the remittance of amounts abroad (ie, conversion into foreign currency of any amount of reais realised upon enforcement of a security), certain approvals may be required.
If Brazilian companies enter into loan agreements with foreign lenders as borrowers, then the main financial terms relating to the loans must be registered with the Central Bank of Brazil under the module of Registry of Financial Transactions (Módulo de Registro de Operações Financeiras, or ROF) of the Central Bank of Brazil's data system, and the funds must inflow into Brazil. This registration with the Central Bank allows borrowers to make payments of principal, interest, cost, fees, expenses and commissions in relation to the loan.
Registration in the ROF shall be completed by the Brazilian borrower prior to disbursement of the loan, since this is a requirement for the purposes of closing currency exchange contracts in connection with the inflow of funds into Brazil. The registration of the financial transaction is necessary in order to enable the Brazilian borrower to remit abroad the funds related to payments under the loan agreements (eg, principal, interest, fees and commissions).
In addition, other registrations may be required depending on the type of investment in Brazil (eg, direct investment in Brazilian companies or investments in the Brazilian financial and capital markets).
As a general rule, foreign capital duly registered with the Central Bank of Brazil may be repatriated to its country of origin at any time without preliminary authorisation.
It is permissible for a project company to maintain offshore foreign currency accounts. Under the Brazilian foreign exchange regulations, Brazilian residents are allowed to maintain offshore accounts, provided that, if the assets and rights located abroad are of a value equal to or greater than USD1 million (or its equivalent in other currencies), the holder must disclose such investments to the Central Bank (declaração de capitais brasileiros no exterior) on an annual basis, in addition to the disclosure to the federal revenue authorities of any assets, rights and income earned abroad.
As a general rule, financing or project agreements do not need to be registered or filed with any government authority in order for them to be valid or enforceable.
It is notable, however, that specific concession agreements signed with certain public authorities may require the concessionaire to seek the prior approval of the granting authority for certain kinds of financing or project documents, and that such approval shall be obtained, not as a condition for the validity or enforceability of the document, but to avoid penalties at the concession level.
Foreign agreements between parties (ie, financing agreements signed with foreign lenders and governed by non-Brazilian law) will be valid regardless of any registration in Brazil. In order to be admissible in evidence and enforceable in the Brazilian courts, however, some formalities are required.
For security agreements governed by Brazilian law, it is notable that the registration of the agreement with the appropriate Registry of Deeds and Documents is a condition for the creation of the security and is necessary to ensure the validity of the agreement against third parties and to ensure priority over the asset/right subject to the security in the case of bankruptcy of the debtor.
Restrictions and Authorisations Regarding Land Use
The ownership of land per se does not require any specific licence, but the exploration of natural resources does require a variety of authorisations or concessions from public authorities.
Certain uses of water resources are subject to authorisation from official agencies.
In relation to mineral resources, according to the Federal Constitution of Brazil, mineral reserves are segregated from the surface area and belong to the federal government. Therefore, the federal government is competent to legislate on mineral resources, deposits, mines and the rules for the commercial exploration of such resources in Brazilian territory.
The ownership and use of rural lands by foreign investors is subject to some restrictions, which may impact the implementation of rural infrastructure projects by companies controlled by foreign entities. Federal Law 5,709/1971 imposes certain limitations on the acquisition of rural properties by foreigners. Pursuant to Article 1, Section 1, such limitations are also applicable to Brazilian companies whose shareholders, individuals or legal entities, residing or established abroad, hold the majority of the capital stock.
Domestic and Foreign Entities
The Brazilian Constitution of 1988 eliminated the differences between legal entities with domestic capital and legal entities with foreign capital, so that a company organised in Brazil with a head office and principal place of business in Brazil is deemed a Brazilian company, regardless of the nationality of its shareholders. Opinion AGU/LA-04/94, issued by the Federal General Attorney, supported such an understanding, and therefore no limitations were imposed by Law 5,709/1971. A couple of years later, another opinion (Opinion AGU GQ-181/1997) was issued by the Federal General Attorney, which confirmed that the above-mentioned restriction on foreign companies was not supported by the Brazilian Constitution of 1988. Notwithstanding this, on 23 August 2010, the Federal General Attorney issued Opinion LA-01, which approved Opinion AGU 01/08, changing the prior consolidated position again and setting forth that Law 5,709/1971 should be applicable to Brazilian companies controlled by foreigners. In addition, Opinion LA-01 stated that the concept of "majority of corporate capital" must be interpreted according to the broader concept of "corporate control" set forth in the Brazilian Corporations Law.
In summary, Opinion LA-01 considered that the restrictions on acquisition of rural lands by Brazilian companies controlled by foreign entities, set forth by Law 5,709/1971 and its regulation (Decree 74,965/1974), are still valid. It determined that Brazilian companies controlled by foreigners (either natural or legal) are restricted from:
INCRA Normative Instruction 76
Accordingly, INCRA Normative Instruction 76, dated 23 August 2013, regulated the acquisition and lease of rural lands by foreigners in accordance with Opinion LA-01.
In this context, Brazilian companies controlled by foreign entities are now subject to the following restrictions.
Brazilian law does not recognise the concept of a security trust for normal lending transactions, but such a notion is regulated for debentures and securitisation transactions. It does, however, recognise the concept of an agency relationship, by means of which a collateral agent may hold the benefit of the security on behalf, and for the benefit, of the lender.
Formal collateral agents are normally used in Brazil, or all lenders are formally included as secured parties and security holders in Brazilian law security agreements. The rules for enforcement (ie, appointment of a leader among the creditors or the appointment of common advisers and the joint discussion of enforcement strategies) are regulated in intercreditor agreements.
The creation of a security (in rem guarantee) over a certain asset or right gives priority to the holder of that security and protection against potential claims or enforcement actions from other creditors in general that may affect the asset or right subject to the existing lien.
Legal priority and subordination are expressly recognised in the sense that security may be granted in different degrees to different creditors. This is true in the case of the pledge (penhor) and the mortgage (hipoteca). In accordance with Brazilian law, the first creditor to be granted a pledge or mortgage over a certain asset or right will be considered a first-priority creditor holding a first-degree security. Creditors that receive security over the same asset or right after the perfection of the first-degree security (subject to any negative pledge provisions that may be contractually agreed upon by the holder of the first-degree security and the security provider) will be considered as second-priority, third-priority creditors holding second-degree, third-degree security, etc.
Upon the release of most senior degrees of security, other security over the same asset or right will be automatically elevated to the immediately preceding degree (ie, on release of the first-degree pledge, the second-degree pledge will automatically be considered as a first-degree security).
In the case of fiduciary security in which different degrees are not allowed by law, exclusive priority will be given to the holder of security created first. If multiple creditors are granted the same fiduciary security at the same time (ie, in the case of syndicated loans), each will have the same priority over the security, pari passu.
In general terms, public concessions or the right to render and explore a public service are only granted to companies incorporated in Brazil.
Although the participation of foreign companies in public auctions and bidding processes is allowed (and very common, especially in the case of foreign companies participating in consortia with other local or foreign companies), in practical terms the bidding announcements and specific rules of the different public agencies normally demand the incorporation of a local company organised in accordance with the laws of Brazil (a special purpose vehicle, or SPV) as a condition for the execution of the concession agreement or granting of the relevant permission or authorisation. In the case of PPP projects in accordance with Law 11,079/2004, the incorporation of the local SPV is mandatory.
Corporate entities incorporated and existing in accordance with the laws of Brazil are essentially regulated by the Brazilian Civil Code and by the Brazilian Corporation Law. There are several types of corporate entities guided by these laws, and the most widely used in Brazil are:
Project companies are normally incorporated as corporations (SAs), both because this is the type normally required by the bidding rules or regulations issued by the public agencies from the different infrastructure sectors and due to the fact that SAs can have more professional management (ie, board of directors, board of officers) and are allowed to issue securities in the market, an advantage in the process of raising funding for the implementation of a project.
Judicial Reorganisation Availability
A judicial reorganisation proceeding may be requested by any debtor who, at the time of the petition, has been doing business regularly for over two years and meets all of the following requirements.
Judicial Reorganisation Procedure
With the filing of the judicial reorganisation petition it is mandatory to include the following.
If the above conditions and the documentation required are in accordance with the BBL, the judge shall authorise the processing of the judicial reorganisation proceeding and, by the same act, shall appoint the judicial administrator. In addition, the judge shall order an immediate stay of actions and executions filed against the debtor for a 180-day period (stay period), among others.
The debtor has 60 days, counted from the above processing decision, to file its judicial reorganisation plan.
During the judicial reorganisation proceeding, the debtor may continue to conduct its corporate activities, under the supervision of the judicial administrator, but the debtor cannot dispose of or restrict any items or rights of its permanent assets without judicial authorisation.
If any creditor files a motion against the plan, a general meeting of creditors will take place. During such a general meeting of creditors, the creditors can negotiate with the debtor and the debtor can make amendments to the reorganisation plan.
If the reorganisation plan is approved, the judge may order the judicial reorganisation of the debtor. The judicial reorganisation plan entails novation of pre-petition claims and binds the debtor and all the creditors subject to the effects of the judicial reorganisation proceeding (Article 59 of the BBL). On the other hand, if the reorganisation plan is rejected, the judge orders the debtor's liquidation.
Out-of-court reorganisation (recuperação extrajudicial) is also possible, whereby a debtor that meets the above-listed requirements for judicial reorganisation may propose and negotiate an out-of-court reorganisation plan with creditors. The debtor shall file for court ratification of the out-of-court reorganisation plan, attaching its reasons and a document stating terms and conditions, signed by the creditors.
The debtor may further file for ratification of an out-of-court reorganisation plan that binds all creditors encompassed therein, provided it is signed by creditors representing over three fifths of all claims of each kind encompassed therein. In this case, in addition to the documents provided for in the regular out-of-court reorganisation, the debtor must attach:
After receipt of the petition for ratification of the out-of-court reorganisation plan, the judge shall order the publication of a notice in the official press and in a widely circulated newspaper, or in the localities of the debtor’s headquarters and branches, calling on all creditors of the debtor to file their oppositions to the out-of-court reorganisation plan.
This kind of reorganisation proceeding does not apply to holders of tax or labour-related claims or occupational accident claims, or to those whose credits are not submitted to the effects of the judicial reorganisation proceeding.
Under Article 49 of the BBL, all claims existing at the date of the filing are subject to the effects of a judicial reorganisation proceeding, even if not yet due. A lender’s right to enforce its loan and/or any security during the stay period is suspended.
In the case of a creditor holding the position of fiduciary owner of real or personal property, financial lessor, owner or committed seller of real estate whose respective agreements include an irrevocability or irreversibility clause (including under real estate developments), or of an owner under a sale agreement with title retention, that owner's claim shall not be subject to the effects of the judicial reorganisation, and the ownership rights over the item and the agreement terms shall prevail, with due regard for the respective law. However, during the stay period, the creditor shall not be permitted to sell or remove from the debtor’s establishment any capital goods essential to the debtor’s business.
It is important to note that, upon the disposal in the reorganisation plan of an asset in rem guarantee, suppression or replacement of the guarantee shall only be permitted with the express approval of the creditor holding the respective guarantee (set forth in Article 50, paragraph 1 of the BBL). This is also true if the reorganisation plan entails novation of pre-petition claims, binding the debtor and all the creditors subject to the reorganisation plan number, without prejudice to the guarantees and with due regard for the provisions of Article 50, paragraph 1 of the BBL.
In a liquidation scenario, any assets of the debtor that were given as collateral under a fiduciary assignment are not considered part of the liquidation estate (that is, the creditor may enforce its rights over the collateral and request the restitution of the asset).
The judicial reorganisation proceeding does not provide an order of payment. The only kind of claim for which the BBL provides an express rule is the labour-related claim.
Regarding the liquidation proceeding, the BBL provides the following order
After these, other creditors will be paid in the following order:
If the borrower, security provider or guarantor were to become insolvent, the main risk for lenders is that the claims existing at the date of the petition will become subject to judicial reorganisation. If this happens, the lender’s right to enforce its loan and/or any security is suspended during the stay period, and it will receive its credit within the collective insolvency proceedings.
The debts are kept in foreign currency in a judicial reorganisation scenario, except if creditors holding the respective claims approve a different indexing parameter (Article 50, paragraph 2 of the BBL).
In a liquidation scenario, all debts will be converted into reais at the exchange rate applicable on the date of the decision of the liquidation decree, and in the case of insufficiency of the collateral, the outstanding amounts will be deemed an unsecured claim.
The BBL does not apply to government-owned entities, mixed-capital companies, public or private financial institutions, credit unions, consortia, complementary pension fund entities, healthcare plan companies, insurance companies, special-savings companies and other organisations held by law to be equivalent to these (in Article 2 of the BBL).
Law 6,024/1974 provides financial institutions with the option of extrajudicial liquidation proceedings. Law 9,656/1998 provides healthcare plan companies with the same option. Insurance companies are regulated by SUSEP (the regulatory agency) and this entity has the prerogative to decree and carry out the liquidation of an insurance company (Decree-law 73/1966).
In general terms, there are no specific restrictions, controls, fees and/or taxes on insurance policies over project assets, and such insurance is regulated by the same general rules that regulate the insurance industry in the country.
Notwithstanding this, there are certain restrictions regarding contracting insurance policies from foreign insurance companies. Complementary Law 126 of 2007 and CNSP Resolution 197 of 2008 (Resolution 197) of the National Council of Private Insurance list the situations where individuals or legal entities in Brazil are allowed to contract insurance policies from foreign insurance companies. Among the allowed options are coverage of foreign risks and risk coverage for which there is no local alternative (Resolution 197, Part I of Article 6).
The absence of coverage in Brazil, according to Resolution 197, is evidenced by the refusal to cover the risk, obtained through consultations with the Brazilian insurance companies operating in the insurance sector appropriate to the risk, or by a negative letter issued by a union or trade association of insurance companies.
SUSEP’s Circular 392/2009 of the Superintendent of Private Insurance Superintendency, among other things, sets forth the operational procedure to be followed to provide evidence of the absence of local coverage by Brazilian insurers. According to this Circular, SUSEP may at any time require the insured party, or the insurance broker who contracted a foreign insurance policy, to present the following documents:
If there are not ten insurers in Brazil operating in the specific insurance sector, all local insurers operating in that insurance sector should have been consulted.
Payments under insurance contracts covering project assets may be paid to foreign creditors both in the case that such creditors are directly included as additional beneficiaries of the insurance, and in the case of enforcement of security over credit rights under insurance contracts.
The remittance of funds from Brazilian insurance companies to foreign creditors must follow the Brazilian Central Bank's requirements for any remittance of funds from the country, including the economic grounds of such remittance in order to evidence the legality of the transaction.
Payments of principal are not subject to withholding taxation in Brazil. Interest, and any other income treated by Brazilian law as similar to interest payable by a Brazilian borrower to a non-resident lender in respect of loans, is currently subject to withholding income tax (imposto de renda na fonte, or IRRF) at a rate of 15% or 25% (when the beneficiary is domiciled in a favourable tax jurisdiction) or at a lower rate if this is provided for in any applicable tax treaty between Brazil and the country of the beneficiary.
Pursuant to Section 24 of Law 9,430 (enacted on 27 December 1996), as amended by Law 11,727 (enacted on 23 June 2008), the definition of favourable tax jurisdictions includes countries and locations:
The list of favourable tax jurisdictions is set forth by Normative Instruction 1,037, enacted on 7 June 2010.
Normative Instruction 1,037 also provides a list of the so-called privileged tax regimes. Even though a loan from a person benefiting from a privileged tax regime does not trigger the application of the IRRF, it does subject the transaction to transfer pricing rules, thin capitalisation and other cross-border interest deductibility rules.
Pursuant to Decree 6,306 of 14 December 2007, the conversion of foreign currency into reais and the conversion of reais into foreign currency are subject to the imposto sobre operações financeiras (IOF)/exchange tax. Currently, the IOF/exchange tax rate is 0.38% for most transfers of foreign currency into reais. According to Decree 6,306, the settlement of exchange transactions in connection with loans obtained by Brazilian companies, for both inflow and outflow of proceeds to and from Brazil, including foreign loans with an average term exceeding 180 days, is subject to IOF/exchange tax at a 0% rate. The rate is 6% on the inflow of funds to Brazil in connection with foreign loans with an average term not exceeding 180 days (foreign loans with an average term of more than 180 days that are partially or fully settled before this term are subject to IOF/exchange tax at the mentioned 6% rate, plus penalties and interest). The Brazilian government may increase the current IOF/exchange tax rate at any time, up to a maximum rate of 25%. Any such new rate would only apply to future foreign exchange transactions.
The amount of interest payable under loan agreements may be limited to the interest rate established by Decree 22,626/1933 (the Usury Law). The application of the Usury Law is fairly controversial within the Brazilian courts, but the prevailing interpretation of the Usury Law adopted by the Brazilian courts is that loan agreements entered into by and between non-financial entities are subject to a limit of 1% in interest per month (ie, 12% in interest per year), plus monetary adjustment of the principal amount due.
Project agreements (construction, operation and maintenance, supply, take-off, etc) are usually governed by Brazilian laws, as such documents regulate the rendering of services in Brazil, payments in the country and in local currency. There are exceptions; for example, when one of the contracting parties is located abroad or if the scope of the agreement involves any kind of importation of goods or services.
Financing agreements signed by and between Brazilian borrowers and Brazilian creditors are governed by Brazilian law. Financing agreements signed by and between Brazilian borrowers (ie, the concessionaire and/or project company) and foreign creditors are usually governed by foreign laws (typically, US or English law, or the laws of the place of incorporation of the foreign lender). Any payment guarantees (corporate guarantees from sponsors, for example) associated with international loan agreements may also be governed by non-Brazilian law, typically the same governing law of the loan agreement or the laws of the place of incorporation of the guarantee provider.
Security documents shall be governed by Brazilian law since the assets and/or rights subject to the security are located in Brazil and/or the security provider (ie, the project company) is incorporated in Brazil.
As mentioned in 9.1 Project Agreements, in Brazil it is typical to have all the main project documents and financing agreements governed by Brazilian law. Since local financial institutions are still the main players in project finance transactions (including BNDES and private banks), most of the financing transactions closed in the country over the last years have been purely domestic.
In the case of the participation of foreign lenders, international suppliers or construction companies, it is legally possible to have the main financing documents and project documents governed by non-Brazilian law.