The expansion of the power sector, one of the flagships in Brazil's infrastructure, has been assured in recent years by investments obtained in several auctions of new, existing, and reserve energy held by the Federal Government through the National Electric Energy Agency (ANEEL) and the Electric Energy Trading Chamber (CCEE).
The authorizations or concessions granted in these auctions conferred upon various agents the right (and responsibility) to develop power generation projects for delivery under commercialization contracts also resulting from the auctions. These documents follow the format of an Electric Energy Trading Contracts in the Regulated Environment (CCEARs), between generators and distributors, in the case of new and existing energy auctions, or Reserve Energy Contracts (CERs), between generators and CCEE, in the case of reserve energy auctions.
In both cases, after the results of the public tenders are ratified, a search for sources of funding begins in order to enable the development of the projects and the generation and delivery of the power purchased. In this context, a fiduciary assignment of the receivables originating from the CCEARs or CERs of the project receiving the financing is used as collateral in almost all financing transactions.
The manner for formalization and perfection of this type of collateral is already well established and involves the execution of a collateral agreement, filing it with the appropriate registry of deeds and documents, and sending notifications regarding the fiduciary assignment to the counterparties purchasing the energy (power distributors, in the case of CCEARs, and CCEE, in the case of CERs). The notifications have two main objectives: (1) informing the counterparties of the creation of a lien over the receivables with a fiduciary assignment in favor of the creditors; and (2) instructing the counterparties to direct payments due under the contracts to the escrow accounts indicated by the creditors.
In addition to sending these assignment notices, it is also important to follow the procedure for changing the payment instructions under CCEARs and CERs, established by CCEE, an entity that, among other duties, is responsible for implementing rules for electric energy trading contracts and mechanisms.
In order to change the banking data provided in CCEARs and CERs, an electronic form generated and made available by CCEE, upon the agent’s request, should be filled out, pursuant to Module 3, Sub-module 3.2, of the CCEE Trading Procedures (approved by ANEEL through Order No. 1,454/2016 and updated by Order No. 1,911/2017).
Specifically with regard to CERs, it is also necessary to obtain CCEE’s prior consent in order to conduct a fiduciary assignment of receivables arising therefrom. Consent is required under the terms of the CERs themselves and must be requested by following the procedure established by CCEE in a document complementary to Sub-Module 3.2, mentioned above, issued in August 2017. Based on the CCEARs used in the latest energy auctions, the distributors' consent is not required for the fiduciary assignment of receivables therefrom.