Publicado em 12/01/2022

ANM publishes resolution which regulates the hypotheses of granting mining rights as security in financing transactions

National Mining Agency (ANM) publishes resolution No.90/2021 which regulates the hypotheses of granting mining rights as security in financing transactions

Resolution No. 90/2021 was published in the Official Gazette on 12/24/2021, establishing the hypotheses for granting mining rights as security in transactions involving the financing of mining, as well as the requirements and conditions for the transfer of ownership of such rights.

It is worth noting that the Resolution may foster the financing and investment of mining activities, including cross-border, as it does not restrict foreign creditors to benefit from the security interest created over the mining rights.

We highlight below some relevant aspects of ANM Resolution No. 90/2021:

• Mining rights and titles: may be granted as security mining concessions and mine manifests.
• Creation of security interest: they may be created through public or private instruments, which must be registered with the ANM. In cases involving mine manifests, the guarantee must necessarily be created by means of a public instrument.
• Registration: must be requested electronically by the financing institution or by the holder of the mining right granted as security interest, observing the rules for authentication and registration of users in the ANM Digital Protocol.
• Requirements for registration: the filing must be accompanied by a mineral rights security agreement that provides and includes: (i) the credit amount, its estimation, or maximum amount; (ii) the deadline set for payment; (iii) the interest rate, if any; (iv) the mining right granted as security interest, indicating the number of the mining administrative proceeding to which it is linked; and (v) the purpose of the financing transaction.
• Publicity of the security on mining rights: the mineral rights security agreement will be considered confidential. However, it will be possible for any interested party to obtain a certificate from the ANM, which must indicate: (i) the debt data provided in the paragraph above (Requirements for registration); (ii) the names of the financing institution, the holder of the security interest and the borrower; and (iii) date on which the security interest was created and the write-off date, if applicable.
• Protection to creditors: (i) the mining right holder cannot relinquish the mining right granted as security interest; (ii) the total or partial lease (arrendamento) of the mineral right depends on the express consent of the creditor; (iii) on an exceptional basis, the creditor may have the possibility of performing procedural measures to avoid the perish of the mining right granted as security interest.
• Information to creditors: upon prior request, creditor must have access to information delivered to the ANM regarding safety and integrity, on the collection of public revenues, as well as on research, exploitation and mineral production of the mining right subject to security interest throughout the term of the security interest.
• Enforcement and foreclosure of the security interest: in the event of the foreclosure of the security interest, either by judicial or extrajudicial means, the effective transfer of ownership of the mining right may only occur upon consent and registration with the ANM. Notwithstanding that, it will be verified whether the new mining right holder meets the legal requirements to be titleholder of a mining concession or mine manifest.

ANM Resolution No. 90/2021, was published in the Federal Official Gazette on 12/24/2021, and, according to its Article 10, will come into force on 03/02/2022.