Recently, the
General Financial Rules for the Retirement Savings Systems (Disposiciones de
carácter general en materia financiera de los Sistemas de Ahorro para el
Retiro, “Financial Rules for Retirement Funds”) were amended in order to
include special requirements for the investment of Retirement Funds in
certificates of capital development (Certificados de Capital de Desarrollo, “CKDs”)
and investment projects certificates (Certificados Bursátiles Fiduciarios de
Proyectos de Inversión, “CERPIs”).
CKDs and
CERPIs are financial instruments regulated by the Securities Market Law (Ley
del Mercado de Valores) and the General Provisions Applicable to Issuers of
Securities and other Market Participants (Disposiciones de Carácter General
aplicables a las Emisoras de Valores y a otros Participantes del Mercado de
Valores).
The basic structure of a trust issuing CKDs or CERPIs is as
follows:
Institutional
investors, such as retirement funds, are the main investors in CKDs and CERPIs
issuances. Retirement funds’ investment regime is mainly provided for in the
Investment Regulations for Retirement Funds (Disposiciones de Carácter General
que Establecen el Régimen de Inversión al que Deberán Sujetarse las Sociedades
de Inversión Especializadas de Fondos para el Retiro) and in the Financial
Rules for Retirement Funds.
The following
are the relevant points related to CKDs and CERPIs in the recent amendment to
the Financial Rules for Retirement Funds:
1.- The
investment committees of retirement funds managers should set forth policies
aligning interests between the manager of the trust issuing the securities and
the investors.
2.- Such
policies shall include the co-investment percentage applicable to the manager
of the trust. The percentage will be determined assessing the risks of the
projects to be financed.
3.- For
CERPIs:
3.1. The structure of
the issuance shall include an additional investment vehicle or co-investor that
is to invest in the same projects in which the issuing trust invests;
3.2. The
co-investment of the additional vehicle or co-investor shall represent no less
than 30% of the value of the financed projects. The co-investor’s investment
may be carried out through the acquisition of the CERPIs issued by the trust.
3.3. The
proceeds from the offering shall be aimed at financing projects in México.
3.4. The
manager of the trust shall participate with at least 2% of the value of the
investments carried out by the issuance trust. If the manager of the trust
participates as co-investor, then said 2% will not be additional to the
required co-investment amount.
The
most recent amendments to the Financial Rules for Retirement Funds set forth
important differences between CERPIs and CKDs that should be taken into
consideration when structuring either of such vehicles.
Although the
projects that are to be financed through the issuance of CERPIs and CKDs shall
be located in Mexico, there is no restriction to the nationality of investors
and co-investors. The co-investment requirement applicable to the issuance of
CERPIs may represent an interesting opportunity for foreign investment funds
that are looking for long-term investment opportunities.
Rebeca Sanchez Perez has extensive experience practicing corporate and finance law. She advises Mexico and international clients on a variety of matters, including foreign investment, corporate restructuring, minority rights, mergers, acquisitions and joint ventures, data protection, and public and private financing, such as the incorporation of private equity funds.