Mexico City, October 8th, 2020.
On September 7th, 2020, the National Commission of the Retirement Savings System (Comisión Nacional del Sistema de Ahorro para el Retiro) published through the Federal Official Gazette (Diario Oficial de la Federación), amendments and additions to the General provisions in financial matters of the Retirement Savings Systems (Disposiciones de carácter general en materia financiera de los sistemas de ahorro para el retiro) (“CUF”).
In accordance with the foregoing, the amendments and additions to the CUF are intended to more precisely regulate the criteria that must be met by certain securities in which Retirement Fund Administrators (Administradoras de Fondos para el Retiro) («Afores«) invest, including Development Equity Certificates (Certificados de Capital de Desarrollo) («CKDs«), Fiduciary Investment Project Securitization Certificates (Certificados de Proyectos de Inversión) («CERPIs«), Infrastructure and Real Estate Trusts (Fideicomisos de Infraestructura y Bienes Raíces) («FIBRAs«), among others.
In this sense, some of the most relevant modifications and/or additions are listed below:
CERPIs and CKDs Administrators
The Risk Committee and Investment Committee of the Afores should establish governance criteria for CERPIs and CKDs. In this regard, the minimum criteria are, among others
Best corporate practices of the administrator
- Have a code of ethics on the conduct of its staff and the type of investment to be made;
- Make a statement of potential conflicts of interest;
- To have policies for contracting, as well as an updated register of the suppliers that provide their services in the financed projects or companies 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
- Administrator must make quarterly reports that comply with the international disclosure standards of the «Institutional Limited Partners Association» or «ILPA» and deliver them to the members of the technical committee.
- Minimum of 10 (ten) years of experience in a decision-making position in the industry or sectors in which it intends to invest the structured instrument; and
- Not have been disqualified from the financial system, public service and not have been found guilty of tax evasion or fraud.
Offerings 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 instrument with underlying assets in the industry or sectors in which it intends to invest the structured instrument.
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«), when any brokerage house acting as an underwriter has a proprietary link 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 houses 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.
Maximum total costs of CERPIs and CKDs
Limits to maximum costs of CERPIs and CKDs
|Classification of the structured instrument||Maximum threshold for total fees for structured instruments (basis points of bps)|
- 150 bps – Issues with mature assets (6 or more years old)
- 200 bps – Issues with early stage assets (less than 6 years old)
Investment risks to be considered by the Afores
- Business combination must take place in Mexico;
- Lock-up period of 1 (one) year after the business combination;
- Maximum of 18 (eighteen) months to announce the initial business combination and 24 (twenty-four) months for the combination to be carried out;
- Manager’s co-investment must be at least 5% (five percent) of the resources raised; and
- Trust assets must be invested in government securities.
Foreign issuers and mutual funds
- 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 officials in charge of the analysis or decision making with respect to the selection of individual shares of foreign issuers must have at least 10 (ten) years of professional experience in equity investment in international markets, or 5 (five) years of experience and have certain CFA Level 1 and 2 or CFA certifications with permanent validity.
- The investment limit for the set of Specialized Investment Funds in Retirement Funds (Fondos de Inversión Especializadas en Fondos para el Retiro) (Fiefores) operated by the same Afore is increased to invest in mutual funds from 10% (ten percent) to 35% (thirty-five percent).
Lawyers of the banking and financial practice of our Firm will be delighted to provide you with further information regarding the content of this informative note.
S I N C E R E L Y,
Miguel Angel Peralta