This memorandum analyzes some implications of the General Provisions on financial matters of the Retirement Savings Systems ("CUF") issued by the National Commission of the Retirement Savings System ("CONSAR"), to the issuance of trust bonds for investment projects ("CERPIS"), specifically on: (i) investments to be made in the national territory by CERPIS y (ii) the possibility of structuring a CERPI by contracting two different investment managers: a local one for domestic investments, and an international one for foreign investments, with a figure or party acting as fund manager, who has no involvement in the origination, analysis, management or execution of the investments to be made by the CERPI.
I. INVESTMENTS MADE BY CERPIS IN MEXICO.
CERPIs were first introduced in December 2015, following their inclusion in the General Provisions applicable to issuers of securities and other participants in the securities market ("CUE") issued by the National Banking and Securities Commission ("CNBV") which defines them as securities in which their resources are used to finance projects, investments in shares or companies, either directly or indirectly, through one or several investment vehicles.
In accordance with section VI of provision 24 of the General Provisions that establish the Investment Regime of the Specialized Investment Companies of Retirement Funds (“CRI”) ("SIEFORES"), SIEFORES may only acquire CERPIS that allocate at least 10% (ten percent) of the maximum authorized amount of the issue, to investment or financing of activities or projects within the national territory of Mexico.
In the event that the investments within the national territory are less than the defined percentage, in accordance with article 30 section XVI paragraph e) of the CUF, the CERPI will be considered as a Foreign Security. On the contrary, if the investments within the national territory are greater or equal to the percentage defined above (10%), the CERPI will not count as a Foreign Security and the CERPIS may be registered as Structured Instruments.
For the calculation of the percentage mentioned above, the capital effectively invested by CERPI in activities or projects within the national territory will be counted in relation to the capital effectively called by CERPI up to the end of June and December of each calendar year, both through the issuance of certificates in which the SIEFORE participates, as well as through the capital calls associated with such issuances.
In order to comply with the 10% (ten percent) of investments in the national territory, the participation of local investment managers in charge of selecting and analyzing the investments to be made in the national territory by CERPI may be done through any of the following structures:
1. The Trust appoints a manager, who shall only be responsible for providing management services to the Trust, including, but not limited to, information reporting obligations, and instructing the trustee, provided, however, that such manager shall not be responsible for the selection and analysis of investments to be made, and shall have no responsibility with respect to the management of the assets and the performance of such investments.
In this structure, the Trust makes investments both within Mexico and abroad, and the trustee may enter into a management contract with a local investment manager for the 10% portion to be invested in Mexico, and a management contract for the portion of up to 90% to be invested abroad with the international investment manager.
2. To implement the commented structure, the administrator will execute the following: (i) an investment management contract with the administrator in charge of carrying out the foreign investments in underlying funds, for which purpose the corresponding subscription contracts must be entered into; y (ii) will create a special purpose vehicle (the "SPV"), to be used to make investments in Mexican territory, provided that such SPV enters into an investment management agreement and subscription agreements with the manager(s) and their vehicles for investments in Mexican territory. The Trust will invest directly in funds targeting Mexican companies or may co-invest with such funds directly in Mexican companies and projects.
Additionally, in accordance with article 30 section XXIV of the CUF, the Investment Committee of the SIEFORES will define the investment strategy with respect to investments in Mexico; the policies for the selection of co-investors, the alignment of GP-LP interests and risk assessment; the authorization of the amount to be invested in Mexico and the fee structure. The value of investments in Mexico and abroad must be recorded separately to comply with the minimum investment requirement in Mexico.
II. FUND MANAGER.
The CUF states that the manager of a CERPI must prioritize the interest of investors. The manager must comply with policies regarding the assessment of operational, legal, technological, social and political risks of the underlying investments for each of the CERPI's asset classes.
To be eligible as a manager, it must establish and comply with independence policies, a code of ethics, an investment manual and certify its technical capabilities, experience and integrity. In addition, the manager is required to disclose the experience of both staff and executive level managers, its corporate governance, its compliance officer, its conflict of interest policies and its compliance with the ILPA Principles.
Also, CERPIS with more than 2.000 millions of Mexican Pesos in AUM must have an Independent Compliance Officer, appointed by the investors to oversee compliance with cost and expense thresholds, as well as compliance with applicable external and internal regulations.
The Investment Committee or the Risk Committee of the SIEFORES must verify whether the administrator or the Co-investor will be responsible for defining the investment thesis and who will execute it. If the CERPI structure corresponds to one in which there is more than one manager. The Investment Committee may establish differentiated policies for the investment manager and any other manager who performs other types of management functions.
Most CERPIS in the market are structured with a manager and a fund manager: (i) the manager who carries out the analysis and selection of the investments to be made; and (ii) the manager of the day-to-day activities of the CERPI, who acts as an administrative service provider.
The CUF establishes that, in the case of Structured Instruments (CKDes and CERPIS), the manager must invest 2% (two percent) or more of the investments made, in the understanding that, in the event that the manager participates as co-investor of the Structured Instrument, such participation will not be additional to the amount of the co-investment. It is important to note that the Investment Committee, with the vote of the independent directors, may reduce such minimum percentage.
A. In order for the SIEFORES to acquire the CERPIS, they must comply with the requirement to invest or allocate at least 10% (ten percent) of the maximum amount of the investment in the national territory of Mexico, so that the CERPIs are not considered as Foreign Securities destined for investment or financing of activities or projects outside the national territory of Mexico.
B. The investments made by CERPI within the national territory may be made through different structures, in which there may be the participation of local investment managers, who will be in charge of selecting and analyzing such investments in the national territory.
C. In accordance with the criteria issued by the Mexican authorities, the amount of the 10% invested in Mexico will be accounted for according to the following parameters (i) total amount of the instrument called in Mexican pesos at the end of the reporting period, which will be the sum of the amount initially placed plus the capital calls; and (ii) the total amount invested in Mexican pesos in promoted companies or projects or financial assets without considering the discounted value for valuation purposes.
This press release is provided for informational purposes only and does not constitute legal advice applicable to any particular case or situation.
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