Mexico City, October 8, 2020.
On September 7, 2020, the National Commission of the Retirement Savings System ("Comisión Nacional del Sistema de Ahorro para el Retiro ("CONSAR") published in the Official Gazette of the Federation ("DOF), amendments and additions to the General Provisions on Financial Matters of the Retirement Savings Systems ("..."), amendments and additions to the General Provisions on Financial Matters of the Retirement Savings Systems ("...").Single Financial Circular" o "CUF").
Accordingly, the purpose of the amendments and additions to the CUF is to regulate more precisely the criteria to which certain securities in which the retirement fund managers ("Administradoras de Fondos para el Retiro") invest ("Administradoras de Fondos para el Retiro") must adhere.Afores"), including Certificados de Capital de Desarrollo ("CKDs"), Investment Project Certificates ("CERPIs"), Infrastructure and Real Estate Trusts ("FIBRAs"), among others.
In this regard, some of the most relevant amendments and/or additions are listed below:
CERPIs and CKDs Administrators
The Afores' Risk Committee and Investment Committee must establish governance criteria for CERPIs and CKDs. In this regard, the minimum criteria are, among others:
Manager's corporate best practices
- To have a code of ethics on the conduct of its personnel and the type of investment to be made;
- To carry out a declaration of potential conflicts of interest;
- To have policies for contracting, as well as an updated registry of suppliers rendering services in the projects financed or partnerships promoted by the structured instrument;
- To have an investment process manual, as well as a risk process manual; and
- To have a business continuity plan and a disaster recovery plan.
Disclosure of information
- The Administrator shall make quarterly reports that comply with the international disclosure standards of the "....Institutional Limited Partners AssociationILPA" or "ILPA", and deliver them to the members of the technical committee.
Administrator Features
- Minimum of 10 (ten) years of experience in a decision-making position in the industry or sectors in which the structured instrument intends to invest; and
- Not to have been disqualified from the financial system, from public service and not to have been found guilty of tax evasion or fraud.
Issuances greater than $2 billion pesos
- The Administrator shall have an independent compliance officer, appointed by the holders of the structured instrument; and
- Evidence of the exit or closing of at least one private equity fund or structured instruments with underlying assets in the industry or sectors in which the structured instrument is intended to invest.
Conflicts of interest in initial public offerings (").IPOs")
- Afores will be prohibited from participating in the IPO of CERPIs, CKDs, Infrastructure and Energy Investment Trusts (FIBRAS-E) and Special Purpose Acquisition Companies (SPACs).Special Purpose Acquisition Company) ("SPACs"(b), when a brokerage firm acting as underwriter has an equity nexus or is part of the same business group as the Afore; and
- Afores may participate in IPOs of FIBRAs, debt and equity instruments when there is a syndicate in which at least two or more brokerage firms with no equity link to the Afore participate, and there is authorization from the Afore's governing body, with the favorable vote of the majority of the independent directors, to invest in securities through this type of placement.
CERPIs and CKDs maximum total costs
Limits to the maximum costs of CERPIs and CKDs
|
Structured instrument classification |
Maximum threshold for total commissions on structured instruments (basis points or bps) |
|
Mature |
150 |
|
Initial stage |
200 |
- 150 bp - Issues with mature assets (6 or more years old)
- 200 bp - Issuances with early stage assets (less than 6 years old)
SPACs
Investment risks to be considered by the Afores
- Business combination must be carried out in Mexico;
- Period of Lock-up 1 (one) year after the business combination;
- Maximum of 18 (eighteen) months to announce the initial business combination and 24 (twenty-four) months for it to be carried out;
- Co-investment of the administrator must be at least 5% (five percent) of the resources collected; and
- Trust assets must be invested in government securities.
Foreign issuers and mutual funds
Foreign issuers
- Afores may only invest directly in individual shares of foreign issuers that are issued and supervised under the regulations of the United States of America, European Union, England, Switzerland, Canada and Australia; and
- Those officers in charge of analysis or decision making regarding the selection of individual shares of foreign issuers must have at least 10 (ten) years of professional experience in equity investments in international markets, or 5 (five) years of experience and hold certain CFA Level 1 and 2 or CFA certifications with permanent effect.
Mutual funds
- The investment limit for the group of Specialized Investment Funds in Retirement Funds (Fondos de Inversión Especializada en Fondos para el Retiro (Fiefores) operated by the same Afore to invest in mutual funds from 10% (ten percent) to 35% (thirty-five percent).
The lawyers of the financial and securities law area are at your service to answer any questions regarding the contents of this informative note.
A T T E N T A M E N T,
Miguel Angel Peralta
peralta@basham.com.mx
Pedro Said
psaid@basham.com.mx
Patrick Stockdale
pstockdale@basham.com.mx
