Regulatory Alerts2015-12-31 | DOF 5422005Added · Updated
Resolution modifying the General Provisions applicable to securities issuers and other market participants
The CNBV amends the General Provisions to introduce a new category of investment project fiduciary trust certificates, which lack principal repayment obligations and are restricted to large investors. The resolution establishes specific disclosure, leverage limits, and debt service coverage requirements for these instruments, as well as for energy and infrastructure investment certificates. It also updates rules for real estate fiduciary trust certificates and replaces several annexes detailing prospectus and reporting instructions.
If the document is presented incomplete on the right margin, it is because it contains tables that exceed the default width. If this is the case, click here to view it correctly.
DOF: 31/12/2015
RESOLUTION modifying the General Provisions applicable to securities issuers and other market participants
At the margin, a seal with the National Coat of Arms, which reads: United Mexican States.- Ministry of Finance and Public Credit.- National Banking and Securities Commission.
The National Banking and Securities Commission, based on the provisions of articles 2, fraction VII; 63 Bis 1, last paragraph; 69; 85, fractions II and VII; 86, second and last paragraphs; 88, first paragraph; 95; 96, fractions I and III; 104 fractions II, III, IV, V, VII and second, third, fourth and fifth paragraphs; 107 fraction II, of the Securities Market Law and 4, fractions XXXVI and XXXVII and 16, fraction I and 19 of the National Banking and Securities Commission Law, and
CONSIDERING
That in order to incorporate into the secondary regulatory framework the possibility of carrying out public offerings of securities of a new type of fiduciary trust certificates that do not stipulate the obligation to pay the principal and, if applicable, interest, which allows them to be similar in their characteristics regarding risk behavior to equity securities and not to debt securities, since the assets, goods or rights generate the expectation of receiving variable and uncertain income, which will only be obtained based on the performance of the investments made, which can also be assimilated to venture capital or private capital instruments, it is necessary to provide the regulations that regulate the issuance and registration in the National Securities Registry of these fiduciary trust certificates to be called investment project certificates, thereby addressing the needs of the securities market, and enabling resources to be channeled to various sectors of the economy, without prejudice to ensuring adequate information disclosure to investors in these instruments;
That it is proposed that for the registration in the National Securities Registry of this type of investment project fiduciary trust certificates, best practices from other markets be incorporated, while differentiated requirements for their issuance are contemplated, including a structure for agile and modern management, flexibilities for their operation, with which the investment of obtained resources will be facilitated, safeguarding at all times the interests of the holders by adding principles for investment decision-making and transparency in management, so that taking into account all the above, they must be offered in a restricted public offering;
That the aforementioned certificates will be destined for the financing of projects, as well as for investment in the share capital of companies, directly or indirectly through investment vehicles, that is, the possibility of investing in a diversity of projects in all economic sectors, facilitating the participation of large investors in these issuances;
That in this vein, principles in the matter of information disclosure are added, including relevant events and financial information, limits on leverage in case of opting to assume credits, loans or financing charged to the trust's equity, the possibility that they be issued under the mechanism of capital calls, incorporating therefore the minimum content of the issuance deed, the rights of the holders, powers of the technical committee and its integration, attributions of the general assembly of holders and, in general, the regime to which issuers of investment project fiduciary trust certificates will be subject to enable their issuance through restricted public offerings and expand the range of securities that can be offered to those large investors, promoting sectors of the national economy;
That on the other hand, it is necessary to provide for fiduciary trust certificates for investment in energy and infrastructure that must have a debt service coverage ratio which will be determined by the holders' assembly itself, with which it is intended that issuers have the necessary resources to face the credits, loans or financing that are assumed charged to the trust's equity, by the settlor, administrator of the trust assets or to whom said functions are entrusted or by the trustee;
That for the fiduciary trust certificates referred to in the previous paragraph, it is also important to provide that in the case that schemes are agreed upon granting the administrator of the trust assets or to whom said functions are entrusted, the settlor or related persons thereof, the right to designate all members of the technical committee, the latter must have at least one committee in charge of resolving conflicts of interest, since otherwise the investments or acquisitions that intend to be made in terms provided by the regulation will be approved by the technical committee, and
That on the other hand, it is deemed necessary to make certain adjustments to the regulations pertaining to the registration in the National Securities Registry of real estate fiduciary trust certificates; establish the possibility that issuers postpone the sending of the information contained in the prospectuses in the case of carrying out corporate restructurings with the object that at the time of their disclosure they have all the information, as well as clarify the obligations incumbent on common representatives in order to facilitate the fulfillment of their respective obligations, has resolved to issue the following:
RESOLUTION MODIFYING THE GENERAL PROVISIONS APPLICABLE TO SECURITIES ISSUERS AND OTHER MARKET PARTICIPANTS
SINGLE.- Articles 1st, fraction I, last paragraph and current VIII, XI, XV, XXIV; 2nd, fraction I, subsections f), eighth paragraph and m), first paragraph and numerals 11., first paragraph, 12., second and third paragraphs, as well as subsection n), second paragraph of this fraction; 7th, fractions VII, subsection a), numerals 5., second, third and last paragraphs and 6.2.2., and VIII, subsection a), numerals 1.2., second paragraph and 4., last paragraph of this fraction; 9th, first paragraph; 14, fractions I, second paragraph and II, third paragraph and last paragraph of this article; 15, fraction IV; 17 Bis, first paragraph; 18, second paragraph; 21, first paragraph; 23, first paragraph; 31, fraction I; 33, fractions I, subsections a), numeral 3., third and fourth paragraphs, b), numerals 1., first paragraph and numeral 1.4., as well as the second and third paragraphs of said numeral, II, fourth and fifth paragraphs and subsection b), first paragraph, and fifth, sixth and seventh paragraphs of said article; 34, fraction VI; 35 Bis, first paragraph; 35 Bis 1, last paragraph and fractions I, first paragraph and II, first paragraph; 48, last paragraph and fraction I; 49, fractions V and VI; 50, third paragraph and fractions III, subsection a), first paragraph, IV, subsection l), VIII, subsections b), c), d) and e), sub-numerals i), ii), iii, iv) and v); 53, first paragraph; 68; 78 Bis 1, first paragraph; 79, last paragraph; are REFORMED; Articles 1st, are ADDED with fraction VI, shifting the remaining fractions in their order and as appropriate and 7th, fractions VI, subsection a) with a numeral 14., VII, subsection a), numeral 6.2.5., VIII, subsection a), numeral 7., with a fourth, fifth and sixth paragraphs and with fraction IX; 35, fraction I, with a fourth and fifth paragraphs, shifting the remaining paragraphs in their order and as appropriate, as well as Annexes H Bis 5 and N Bis 5; Article 7th, fractions II, subsection c), penultimate and last paragraphs and VI, subsection b) are ABROGATED; Annexes A, H Ter, N Bis 4 and AA of the "General Provisions applicable to securities issuers and other market participants", published in the Official Gazette of the Federation on March 19, 2003 and modified through resolutions published in the same Gazette on October 7, 2003, September 6, 2004, September 22, 2006, September 19, 2008, January 27, July 22 and December 29, 2009, December 10 and 20, 2010, March 16, July 27, August 31 and December 28, 2011, February 16 and October 12, 2012, April 30 and July 15, 2013, January 30, June 17, September 24 and December 26, 2014, January 12, March 26, May 13, August 27, September 28 and October 20, 2015, are SUBSTITUTED, to read as follows:
Titles First to Eighth
...
ANNEX A
Content of the request letter for authorization of Registration of securities and public offerings of alienation.
ANNEXES A-1 to H Bis 4
...
ANNEX H Bis 5
Instructions for the preparation of placement prospectuses, informative brochures and informative supplements applicable to investment project fiduciary trust certificates.
ANNEX H Ter
Instructions for the preparation of the document with key information for investment.
ANNEXES I to N Bis 3
...
ANNEX N Bis 4
Instructions for the preparation of the annual report applicable to fiduciary trust certificates for investment in energy and infrastructure.
ANNEX N Bis 5
Instructions for the preparation of the annual report applicable to investment project fiduciary trust certificates.
ANNEXES N Ter to Z
...
ANNEX AA
Methodologies for the calculation of the level of indebtedness or leverage, and of the debt service coverage ratio, applicable to development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates.
" ARTICLE 1st.- For the purposes of these provisions and in addition to the concepts provided in article 2 of the Securities Market Law, the following shall be understood:
I.
...
...
Regarding development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates, the modification of the registration in the number of titles or in the amount of the issuance in question, as well as any other that is agreed upon in the general assembly of holders.
II. to V.
...
VI.
Investment project fiduciary trust certificates, to the certificates whose resources from the issuance are destined to finance projects, as well as investment in shares, partnership interests or financing of companies, whether directly or indirectly through one or more investment vehicles.
VII. and VIII.
...
IX.
Independent Expert, to the person of recognized prestige who has the necessary technical knowledge to issue opinions regarding:
a)
The price of shares, or of development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates, issued by a specific issuer and which is not located in any of the following situations:
Provides external accounting audit services or is an employee or partner of the firm where the external auditor of the issuer works.
Issues the legal opinion referred to in article 85, fraction IV of the Securities Market Law or is an employee or partner of the firm where the person who renders the said legal opinion works.
Works or holds a job, position or commission in any intermediary in the securities market that participates in connection with the carrying out of any operation of the issuer in question.
b)
The estimated hydrocarbon reserves in accordance with the guidelines in the matter of regulation of reserves issued by the National Hydrocarbons Commission used to determine the economic interest reported by an issuer that participates in one or more contracts or assignments on exploration and extraction activities of hydrocarbons, as well as regarding the appropriateness of the methodologies used, the suitability and quality of the data on which they are based, the information it presents, the depth and rigor of the reserve estimation process, its classification based on the relevant definitions used and the reasonableness of the quantification of the estimated economic interests.
X and XI.
...
XII.
General investing public or investing public, to the persons who hold securities of an issuer, distinct from the latter itself, provided that they are not located in any of the following situations:
a)
That they are non-independent directors or relevant executives.
b)
That individually hold directly or indirectly 30% or more of the ordinary shares or credit titles that represent them, or have command power in an issuer.
c)
That they form a group of persons who are linked by reason of consanguinity or affinity up to the second degree or civil, including in said group their spouses, concubines or concubinarians and natural or legal persons, who act in a concerted manner or maintain agreements to make decisions in the same sense that place them in any of the situations referred to in the previous subsection b).
d)
That they maintain patrimonial links with the persons referred to in the previous subsections b) and c).
e)
That they act as trustees of trusts that are constituted with the purpose of establishing pension, retirement or seniority premium funds for the personnel of an issuer, options to purchase shares for employees, as well as any other fund with similar purposes to the aforementioned, constituted by the issuer or in whose trust equity this participates. Funds of issuers of development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates, or those of the administrators of the trust assets or to whom said functions are entrusted, when they constitute option plans for their respective employees to purchase the securities issued by the issuer itself, will be included in this subsection.
XIII to XV.
...
XVI.
Capital calls, to the terms and conditions established by the issuer of the development, real estate or investment project fiduciary trust certificates that allow it to exercise the option to require holders, after the placement of a part of the issuance, additional contributions of resources to the trust's equity for the execution of its purposes, adjusting for this to what is stipulated in the trust and in the corresponding issuance deed, and subject to the Securities Market Law.
The capital call mechanism will imply a modification in the number of titles and in the amount of the issuance and must adjust to what is stipulated in the trust and in the issuance deed, of which the corresponding title will form part.
XVII to XXIV.
...
XXV. Asset-backed Securities, to Securities whose source of payment comes from the resources, yields or income generated by a set of financial assets that have determined or determinable payment flows, or by any asset destined to ensure the fulfillment of the payment of the issuance, which grant the right to receive cash flows in a determined period or, if applicable, the right to ownership or title of said financial assets.
Asset-backed Securities shall not be considered, structured securities, shares representing the share capital of investment funds referred to in the Investment Funds Law; development, real estate, indexed, investment in energy and infrastructure or investment project fiduciary trust certificates, or any other security issued by collective investment mechanisms that have particular investment strategies and objectives.
...
ARTICLE 2nd.-
...
I.
...
a) to e)
...
f)
...
...
...
...
...
...
...
...
Regarding development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates, financial statements, if applicable, combined financial statements, audited by external auditor for the periods indicated in this subsection, or when not possible, proforma financial information which must include at least the statement of comprehensive income, in accordance with article 81 Bis of these provisions, reviewed by external auditor, corresponding to the last complete social year, as well as intermediate financial information corresponding to the 3 and 6 month periods indicated in the third paragraph of this subsection, which must be presented comparatively with the same period of the previous year in accordance with applicable accounting regulations. Likewise, they must present the financial statements of the companies or projects with respect to which the trust invests or acquires titles representing their share capital, which individually represent 10% or more of the trust's equity, or in the case of those placed under the capital call mechanism, 10% of the maximum amount of the issuance, unless such information is consolidated in the financial statements presented with respect to the trust, for the years mentioned in this subsection, which must be prepared in accordance with what is provided in article 78 Bis 1 or 79 of these provisions, as appropriate. The financial statements of the aforementioned companies or projects may be omitted, regarding securities placed through restricted public offering.
g) to l)
...
m)
Placement prospectus or informative supplement regarding issuances under the framework of securities placement programs, preliminary, containing the information detailed in annexes H, H Bis, H Bis 1, H Bis 2, H Bis 3, H Bis 4, H Bis 5 or I of these provisions, depending on the nature of the securities to be offered and the type of issuer.
...
...
...
- to 10.
...
Regarding development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates, the representative, agent or attorney of the legal person that provides external audit services and the external auditor who has prepared a report or opinion on the verification or validation of compliance by the administrator of the trust assets or to whom said functions are entrusted, of policies, restrictions or requirements regarding flows from investments, divestments or acquisitions, as well as regarding the reasonableness and reliability of the evolution of goods, rights or values other than those entrusted, which are included in the prospectus, as well as any other financial information that is also included in the latter, at the foot of the following legend:
...
...
The placement prospectus used for dissemination to the public regarding development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates must be signed on the final page by the persons indicated in numerals 4., to 12., of this subsection m). Likewise, in the case that said fiduciary trust certificates do not have a nominal value, the legend indicated in numeral 4., above, must include what is stated in the last paragraph of said numeral.
Regarding the informative supplement used for dissemination to the general public, it must be signed on the final page by the persons referred to in numerals 3., 4., and, if applicable, 5., to 10., and 12., above.
...
...
...
...
n)
...
Regarding secondary public offerings of sale either of shares, credit titles that represent them, or of development, real estate, investment in energy and infrastructure or investment project fiduciary trust certificates, the request for authorization must be signed by each of the selling shareholders or holders, as well as be accompanied by the information referred to in the previous subsections k), l) and m). For this purpose, issuers are obliged to provide all the necessary information for the realization of the corresponding public offering. Likewise, the prospectus referred to in the previous subsection m) must be signed by a representative or attorney of the issuer who has the authority to bind it, as well as by the selling shareholders or holders and, as appropriate, by the persons referred to in numerals 1., to 5., 11., and 12., of the aforementioned subsection m).
...
II.
Abrogated.
Penultimate paragraph.- Abrogated.
...
...
...
" ARTICLE 7th.- ...
I. ...
II.
...
a) and b)
...
c)
Abrogated.
Penultimate paragraph.- Abrogated.
Last paragraph.- Abrogated.
III. to V.
...
VI.
...
a)
...
- to 13.
...
The characteristics and eligibility criteria of the companies with respect to which the trust will invest, acquire titles representing their share capital or grant credits, loans or financing.
b)
Abrogated.
c)
...
...
VII.
...
a)
...
- to 4.
...
...
Regarding real estate fiduciary trust certificates that fall under the situation referred to in the previous paragraph, instead of adjusting to what is provided in numeral 4.1., above, the maximum limit of liabilities that intend to be assumed in relation to the total assets of the trust must be indicated, which in no case may be greater than 50% of the book value of its total assets, measured at the close of the last reported quarter; likewise, they must comply with a debt service coverage ratio adjusting to what is provided in numeral 4.2., above. In any case, the level of indebtedness and the debt service coverage ratio must be calculated in accordance with what is provided in annex AA of these provisions and revealed in terms of article 35 Bis 1 of these provisions.
Additionally, it will be established that in case the issuer exceeds the maximum limit indicated in the previous paragraph or if the debt service coverage ratio is less than 1.0, no additional liabilities may be assumed charged to the trust equity until the issuer adjusts to the indicated limit, unless it is a refinancing operation to extend the maturity of the issuer's indebtedness and the technical committee documents the evidence of such situation. In any case, the result of said refinancing cannot imply an increase in the level of indebtedness or a
decrease in the calculation of the debt service coverage index recorded prior to said refinancing operation.
In the event that the issuer exceeds the limit referred to in this section or if the debt service coverage index is less than 1.0, the trust estate administrator or the person to whom such functions are entrusted must present a report of such situation to the general meeting of holders, as well as a corrective plan that establishes the method, terms, and, if applicable, deadline to comply with the limit. Prior to its presentation to the assembly, the plan must be approved by the majority of the independent members of the technical committee within a period not exceeding 20 business days counted from the date the excess to said limit is made known to said committee. In any case, the corrective plan must contemplate what is stated in the preceding paragraph.
...
6.1.
...
6.2.
...
6.2.1.
...
6.2.2. The policies, procedures, or mechanisms to carry out the offering of the fiduciary securities, the amount up to which capital calls could be made, the subscription and payment mechanism for the minimum initial contribution, as well as regarding the method and deadline by which the issuer could exercise the option to make capital calls. The minimum initial contribution cannot be less than twenty percent of the total that the issuance can reach.
6.2.3. and 6.2.4.
...
6.2.5. The conventional penalties that the issuer will apply in case one or several holders of real estate fiduciary securities do not comply in time and form with the capital calls, the consequences that will arise for the other holders, as well as the actions that the issuer could exercise in relation to the capital call in question. Likewise, the procedure for modifying the aforementioned conventional penalties must be specified.
6.3. to 6.6.
...
- to 9.
...
b)
...
...
VIII.
...
a)
...
...
1.1.
...
1.2.
...
Such rules must establish the maximum debt limit and debt service coverage index that they intend to assume, which must be calculated in accordance with what is provided in Annex AA of these provisions.
1.3. to 1.6.
...
- and 3.
...
...
...
...
...
When fiduciary securities for investment in energy and infrastructure are issued in series that grant limited voting rights or when schemes are agreed upon that grant the trust estate administrator or the person to whom such functions are entrusted, the settlor, or persons related to the latter, the right to appoint all members of the technical committee, the latter must have at least the committee in charge of resolving conflicts of interest referred to in this section. Otherwise, the operations referred to in the third paragraph of this section must be approved by the technical committee.
- and 6.
...
...
...
...
The obligation to comply with the debt service coverage index determined by the general meeting of holders, when assuming any credit, loan, or financing charged to the trust estate. This index must be calculated in accordance with what is provided in Annex AA of these provisions, with figures at the close of the last reported quarter.
Likewise, the index must be disclosed in terms of Article 35 Bis 1 of these provisions.
Additionally, it must be established that in case the debt service coverage index determined by the general meeting of holders is exceeded, no additional liabilities can be assumed charged to the trust estate, unless they are refinancing operations to extend the maturity of the issuer's debt and the technical committee documents the evidence of such situation. In any case, the result of said refinancing cannot imply a decrease in the calculation of the debt service coverage index recorded prior to said refinancing operation.
In the event that the debt service coverage index exceeds that determined by the general meeting of holders, the trust estate administrator or the person to whom such functions are entrusted must present a report of such situation to the general meeting of holders, as well as a corrective plan that establishes the method, terms, and, if applicable, deadline to comply with the limit. Prior to its presentation to the assembly, the plan must be approved by the majority of the independent members of the technical committee within a period not exceeding 20 business days counted from the date the excess to said limit is made known. In any case, the corrective plan must contemplate what is stated in the preceding paragraph.
- and 9.
...
b)
...
...
IX.
Regarding project investment fiduciary securities:
a) The issuance documents must contemplate the following:
That they must be offered in restricted public offerings in terms of these provisions.
That the general meeting of holders must meet, upon summons by the trustee or common representative with at least 10 days' advance notice, through the stock exchanges where the certificates trade. Regardless of whether they are issued in series with limited voting rights, the general meeting of holders will have the following minimum powers:
2.1. Approve expansions to the issuances that intend to be carried out, either in amount or in the number of certificates.
2.2. Remove and replace the trust estate administrator or the person to whom such functions are entrusted.
2.3. Approve any increase in the compensation schemes or commissions of the trust estate administrator or the person to whom such functions are entrusted or members of the technical committee.
2.4. Approve modifications to the purposes of the trust or its early extinction.
The rights of the holders as follows:
3.1. Holders who individually or collectively represent at least 25% or more of the number of certificates in circulation will have the following rights:
3.1.1. Appoint a member of the technical committee. Such appointment can only be revoked by the other holders when, in turn, the appointment of all members of the technical committee is revoked; in this case, the replaced persons cannot be appointed during the 12 months following the revocation.
3.1.2. Request the common representative to summon a general meeting of holders, as well as to postpone by one time, for 3 calendar days and without the need for a new summons, the voting on any matter regarding which they do not consider themselves sufficiently informed.
3.1.3. Judicially oppose the resolutions of the general meetings of holders, provided that the claimants did not attend the meeting or voted against the resolution.
3.1.4. Exercise liability actions against the trust estate administrator or the person to whom such functions are entrusted for non-compliance with their obligations.
3.2. To have free access to information and documents related to the agenda items at least 10 calendar days in advance of the general meeting of holders, at the address indicated in the summons.
That the technical committee must be composed of a maximum of 21 members, of which at least the majority must be independent. An independent member is understood to be a person who meets the provisions of Articles 24, second paragraph, and 26 of the Law. Independence will be assessed with respect to the settlor as well as the trust estate administrator or the person to whom such functions are entrusted.
Members of the technical committee who have a conflict of interest in any matter must abstain from participating and being present in the deliberation and voting of said matter, without this affecting the quorum required for the installation of said committee.
Likewise, it must be provided that the technical committee will have the following non-delegable powers:
4.1. Monitor compliance with what is established in the issuance documents.
4.2. Propose to the general meeting of holders modifications to the issuance documents.
4.3. Verify the performance of the trust estate administrator or the person to whom such functions are entrusted.
4.4. Review the quarterly report that, for this purpose, the trust estate administrator or the person to whom such functions are entrusted presents.
4.5. Request from the trust estate administrator or the person to whom such functions are entrusted, within the deadlines and in the manner established by the technical committee, all necessary information and documentation for the fulfillment of their functions.
4.6. The majority of the independent members of the technical committee may request:
4.6.1. From the trustee or the common representative, to summon a general meeting of holders and ask that points they deem pertinent be inserted in the agenda of such meetings.
4.6.2. From the trustee, the publication of relevant events and other information that, in their judgment, should be known to the public.
The agreements for the exercise of voting rights at general meetings of holders, which contain the purchase or sale options between holders of project investment fiduciary securities or any other agreements related to voting or economic rights regarding the certificates, as well as those made by the members of the technical committee and their respective characteristics, which must be disseminated in the annual report referred to in Article 33, fraction I, subsection b), section 1., without prejudice to the obligation to notify them to the trustee within 5 business days following their execution, so that they are disclosed to the investing public through the stock exchanges where the certificates trade.
In the agreements to exercise the voting rights of the members of the technical committee, it may be stipulated, among others, to exercise the vote of the non-independent members in the same sense as the vote emitted by the trust estate administrator or the person to whom such functions are entrusted, in case these belong to the technical committee.
When the agreements stipulate the resignation by the holders of exercising their right to appoint a member of the technical committee, what is contemplated for these cases in the issuance documents must be followed, and in any case, notification to the trustee or common representative by any means established in said documents will suffice.
In case the resources of the issuance intend to be predominantly used to grant credits, loans, or financing to Mexican companies or to acquire debt securities issued by them, charged to the trust estate, and additionally intend to contract credits or loans, it must be stated:
6.1. That the amount of total assets, as defined in Annex AA of these provisions, in no moment can be greater than 5 times the book value of the project investment fiduciary securities issued. In any case, the leverage level must be calculated in accordance with what is provided in said Annex and disclosed in terms of Article 35 Bis 1 of these provisions.
Additionally, it will be established that in case the issuer exceeds the maximum limit stated in the preceding paragraph, no additional liabilities can be assumed charged to the trust estate until the issuer adjusts to the stated limit, unless they are refinancing operations to extend the maturity of the issuer's debt and the technical committee documents the evidence of such situation. In any case, the result of said refinancing cannot imply an increase in the leverage level recorded prior to said refinancing operation.
In case the issuer exceeds the limit referred to in this section, the trust estate administrator or the person to whom such functions are entrusted must present a report of such situation to the general meeting of holders, as well as a corrective plan that establishes the method, terms, and, if applicable, deadline to comply with the limit. Prior to its presentation to the assembly, the plan must be approved by the majority of the independent members of the technical committee within a period not exceeding 20 business days counted from the date the excess to said limit is made known. In any case, the corrective plan must contemplate what is stated in the preceding paragraph.
6.2. The obligation to comply with a debt service coverage index, when assuming any credit, loan, or financing charged to the trust estate. This index must be calculated in accordance with what is provided in Annex AA of these provisions, with figures at the close of the last reported quarter and cannot be less than 1.0. Likewise, the index must be disclosed in terms of Article 35 Bis 1 of these provisions.
Additionally, it must be established that in case the debt service coverage index is less than 1.0, no additional liabilities can be assumed charged to the trust estate, unless they are refinancing operations to extend the maturity of the issuer's debt and the technical committee documents the evidence of such situation. In any case, the result of said refinancing cannot imply a decrease in the calculation of the debt service coverage index recorded prior to said refinancing operation.
In the event that the debt service coverage index referred to in this section is less than 1.0, what is provided in section 6.1., last paragraph, will apply.
The technical committee must monitor that mechanisms and controls are established that allow verifying that the contracting or assumption of credits, loans, or financing complies with the applicable regulations and these provisions.
For the purposes of what is provided in this section, predominance is understood as at least 70% of the resources of the issuance. For the case of project investment fiduciary securities issued under the capital call mechanism, the 70% of the resources will be with respect to the maximum amount of the issuance.
It must be provided that in no case can the issuer allocate more than 20% of the trust estate to the acquisition of debt securities registered in the Registry. In these cases, what is provided in section 13., of this subsection, will not apply.
In case the issuer exceeds the limit referred to in the preceding paragraph, what is provided in section 6.1., last paragraph of this subsection, will apply.
In case issued under the capital call mechanism:
7.1. The express mention of such circumstance.
7.2. The issuance deed of which the corresponding title will form part, in which at least the following is stipulated:
7.2.1. The designation of the person responsible for keeping a record containing the amount of resources obtained corresponding to the minimum initial contribution and each capital call for each holder of the fiduciary securities.
7.2.2. The policies, procedures, or mechanisms to carry out the offering of the fiduciary securities, the amount up to which capital calls could be made, the subscription and payment mechanism for the minimum initial contribution, as well as regarding the method and deadline by which the issuer could exercise the option to make capital calls. The minimum initial contribution cannot be less than twenty percent of the total that the issuance can reach.
7.2.3. The number of days' advance notice that the issuer must give to holders in case of a capital call, which in no case can be less than 15 business days from the date when the resources should be contributed.
7.2.4. The conditions for the transfer of the fiduciary securities, if established, which cannot absolutely restrict the transfer of the securities.
7.2.5. The conventional penalties that the issuer will apply in case one or several holders of project investment fiduciary securities do not comply in time and form with the capital calls, the consequences that will arise for the other holders, as well as the actions that the issuer could exercise in relation to the capital call in question. Likewise, the procedure for modifying the aforementioned conventional penalties must be specified.
The duly notarized issuance deed must be delivered to the Commission, no later than the date of issuance.
7.3. The description of the cash administration systems for handling resources from capital calls that it has.
7.4. That authorization can be requested from the Commission to carry out various public offerings until reaching the placement of the minimum initial contribution amount, provided that the method for calculating the price at which the certificates will be placed is determined in the issuance documents. In any case, the maximum deadline in which the public offerings referred to in this section can be carried out will be 1 year, from when the initial public offering has been made. When the issuer does not place the minimum original contribution amount within the deadline established in this subsection, what is provided in Article 14 of these provisions will apply.
In case the Commission has authorized the carrying out of various public offerings referred to in the preceding paragraph, in order to carry out subsequent offerings to the initial one, the issuer must prove to the Commission that it is up to date in the delivery of periodic information referred to in Title Four of these provisions. In these cases, it will not be necessary for the general meeting of holders to approve subsequent offerings.
The issuer, prior to carrying out the placement of each offering, must communicate to the Commission, 2 business days in advance of the book closing, the characteristics of this, as well as present the offering notice referred to in Article 2, fraction I, subsection l), of these provisions.
7.5. The placement prospectus must expressly mention that it is possible that one or more holders of the fiduciary securities do not cover in time and form the capital calls, which could prevent the fulfillment of the business plan and investment schedule. Likewise, it must be clearly established that this risk is additional to those derived from investment in activities or projects of several companies or the acquisition of shares representing the equity capital of companies.
When the issuer has opted to register the securities under the capital call mechanism and intends to expand the amount up to which they could be made, in case it has additionally made any capital call, it must present to the Commission a copy of the minutes of the general meeting of holders in which such expansion was approved with at least the consent of 75% of the holders of project investment fiduciary securities.
In case the resources of the issuance intend to be predominantly used to invest in collective investment mechanisms not listed on any stock exchange, the mention in terms of what is provided by the placement prospectus according to Annex H Bis 5 of these provisions, that the financial information referred to in fraction II of Article 33 of these provisions may be disclosed no later than within 20 business days following the end of the quarter subsequent to that to which the information corresponds. Likewise, it must be specified that the annual financial statements or their equivalents referred to in section 3., of subsection a), of fraction I, of Article 33, as well as the annual report referred to in section 1., of subsection b) of fraction I of the aforementioned Article 33 of these provisions, will be presented no later than June 30 of each year.
For the purposes of what is provided in this section, predominance is understood as at least 70% of the resources of the issuance. In case they are issued under the capital call mechanism, the 70% of the resources will be with respect to the maximum amount of the issuance.
When it is intended to acquire shares or credit titles representing them registered in the Registry or issued by Mexican companies that have been subject to public offering abroad, the investments or acquisitions made by the trust must represent at least 20% of the equity capital of the company in question.
Shares or credit titles representing them registered in the Registry can be acquired for a percentage lower than that provided in the preceding paragraph, provided that there are co-investment agreements with other investors that allow them to acquire jointly at least 20% of the equity capital of the company in question, as well as that the issuer of project investment fiduciary securities is part of the administration of the corresponding company.
In case the issuer does not comply with the conditions referred to in this section for the purposes of making acquisitions, what is provided in section 6.1., last paragraph of this subsection, will apply.
The right of holders to request the common representative or the trustee to have access to information free of charge that the issuer is not obligated to disclose to the investing public in terms of Title Four of these provisions, provided that they accompany their request with the certificate accrediting the ownership of the respective securities, issued by a securities depository institution. Such information must be related to the investments the issuer intends to make, without prejudice to the provisions on confidentiality and conflicts of interest established in the base documents of the issuance.
The obligation to hire a common representative, specifying their rights and obligations, as well as the terms and conditions under which their removal and the appointment of a new one can proceed.
Regarding the administrator of the trust estate or whoever is entrusted with such functions:
12.1. The terms and conditions under which they will exercise their powers of administration and dominion.
12.2. That the compensation scheme, commissions, and incentives be established in such a way as to protect the interests of the holders at all times.
12.3. Their liability regime, including the payment of damages and losses, unless conventional penalties have been agreed upon.
12.4. The obligation to deliver to the technical committee, the common representative, and the holders of the securities trust certificates of investment projects who request it, a quarterly report on the performance of their functions, as well as the information and documentation requested in the fulfillment of their functions.
12.5. The obligation to perform their functions diligently, acting in good faith and in the best interest of the trust and the holders.
The possibility of investing in short-term securities registered in the Registry, provided they are temporary investments made while the investments to which the resources of the issuance are destined are being carried out, in accordance with what is established in the placement prospectus.
The frequency with which the valuation of the certificates must be carried out. In any case, it must be provided that the valuation will be carried out at least once a year.
The policies under which the trust estate will be invested.
The policies for the acquisition or disposal of assets, goods, or rights.
The policies on transactions with related parties regarding the projects and companies on which the trust makes investments, of the settlor, the administrator of the trust estate or whoever is entrusted with such functions, as well as the investor with whom there are co-investment agreements or who could represent a conflict of interest. Such policies must include, at a minimum, the following:
17.1. The types of projects or companies referred to in subsection b) of this fraction, in which transactions with related parties or potential conflicts of interest may be carried out.
17.2. Whether there will be an analysis or valuation by an independent third party regarding the price or terms of the respective operation. In the event that this is not available, the corresponding risk factors must be included in the placement prospectus.
17.3. The rights and obligations of the parties participating in the respective project or company, as well as the precedence, if any, that exists for the exercise of such rights.
Additionally, it must be provided that in the event that transactions with related parties are intended to be carried out without adjusting to the policies mentioned in this paragraph, prior approval from the general assembly of holders will be required.
The rules for the contracting of any credit or loan against the trust estate, by the settlor, administrator of the trust estate or whoever is entrusted with such functions, or by the trustee.
In the event that series are issued that grant limited voting rights, they must record the obligation to pay distributions preferentially to the holders of said series.
In the event that the trust contract provides for the existence of parallel vehicles or co-investment agreements have been entered into with other investors, to invest jointly with the issuer, it must be established that the issuer will have, at a minimum, the same economic and voting rights as those provided for the parallel vehicles or co-investment agreements mentioned above in relation to the investments they make jointly.
The characteristics and eligibility criteria of the companies or projects in which the trust will invest. Such documents must contemplate diversification criteria and degrees of concentration by type of industry and assets subject to investment.
b)
The draft title referred to in Article 2, fraction I, subsection e), of these provisions, in addition to what is provided by Article 64 of the Securities Market Law, must state that there is no obligation on the part of the issuer to pay a sum of money for the concept of principal and, if applicable, interest. Additionally, it must contemplate that the distribution of profits or losses will be made proportionally to the amount of contributions and that one or more holders cannot be excluded from the individual participation in the profits or losses associated with the investments charged to the trust estate, provided that in the case where they have been issued under the capital call mechanism, for the distribution of profits, the holder in question must have attended to these in a timely and proper manner. Such titles may express nominal value and it must be provided that a minimum number of investors is not necessary for their listing or maintenance of the listing on stock exchanges. Likewise, regarding securities trust certificates of investment projects issued under the capital call mechanism, they must expressly state that in matters not provided for in the title, the provisions of the issuance act referred to in subsection a), paragraph 7.2., above, will apply.
In the event that the resources of the issuance are intended to be predominantly destined to granting credits, loans, or financing to Mexican companies charged to the trust estate, and additionally intend to contract credits or loans, the draft title must also provide for what is established in paragraph 6., of subsection a) above.
Likewise, they must present the documentation contained in paragraphs 2., 3., 4., and, if applicable, 1., and 6., of fraction II, subsection b) of this article. In any case, they must present the balance sheet of the trust estate affected.
. . .
In the cases provided for in fractions II to IX of this article, when the payment obligation secured by the respective securities depends totally or partially on an entity or legal person other than the issuer, additionally, financial information regarding the latter must be presented as referred to in Article 2, fraction I, subsection f) or 3, fraction VII of these provisions, presented in accordance with Articles 78 Bis 1 or 79 of the same provisions, as applicable. Regarding development, real estate, or investment project trust certificates, the financial information referred to in Article 2, fraction I, subsection f) of these provisions, must be presented in terms of what is provided by Article 78 of these provisions.
" ARTICLE 9.- Issuers that intend to obtain the registration of their securities in the Registry, without a public offering being made for this purpose, must request it from the Commission providing the documentation and information referred to in Article 2, fraction I, except for what is established in subsections k), l) and m), 3, except for what is established in fraction X, 4, and, insofar as applicable, 7, of these provisions. The issuer must deliver the informational brochure in accordance with annexes H, H Bis, H Bis 1, H Bis 2, H Bis 3, H Bis 4, H Bis 5, I or L, as the case may be, of these provisions, signed by the persons referred to in Article 2, fraction I, subsection m), paragraphs 1., to 3., 5., and 6., and 3, fraction X, subsections a), c) and d), of these provisions, as applicable.
. . .
. . . "
" ARTICLE 14.- . . .
I.
. . .
In the event that a public offering of the shares subject to the Update of Registration is intended to be carried out, the information referred to in Article 2, fraction I, subsections k), l) and m) of these provisions must additionally be presented.
II.
. . .
. . .
For the update of the registration of development, real estate, energy and infrastructure investment, or investment project trust certificates, the corresponding request must be presented to the Commission accompanied by the documentation indicated in Article 2, fraction I, subsection b) of these provisions.
. . .
III.
. . .
The Commission will proceed with the update of the registration, without a request being made for this purpose, when the issuers of development or real estate trust certificates fail to place the minimum initial contribution amount within the term established in Article 7, fractions VI, subsection a), paragraph 5.5., VII, subsection a), paragraph 6.5., and IX, subsection a), paragraph 7.4., of these provisions.
ARTICLE 15 .- . . .
I. to III.
. . .
IV.
Regarding development, real estate, energy and infrastructure investment, or investment project trust certificates, additionally adjust, insofar as applicable, to what is provided by Article 108 of the Securities Market Law and to what is provided by Chapter Five of these provisions. "
" ARTICLE 17 Bis.- Requests to obtain authorization for a public offering for the voluntary acquisition of development, real estate, energy and infrastructure investment, or investment project trust certificates, in addition to what is provided in Article 96 of the Securities Market Law, must be presented to the Commission duly integrated in accordance with annex A-1 of these provisions, accompanied by the following information:
I.
Repealed.
II to VII.
. . .
ARTICLE 18.-
. . .
Brokerage houses must inform the start of a public offering to their clients when it concerns shareholders of the issuer and holders of development, real estate, indexed, energy and infrastructure investment, or investment project trust certificates, when such shares or securities are the subject of such public offering. "
" ARTICLE 21.- Requests for registration and provisional registration under any of its 3 modalities, update of registration, taking of note, cancellation, and, if applicable, approval of public offering for acquisition or disposal of securities and notifications of offerings abroad referred to in this Title, as well as dissemination of information for promotional, marketing, or advertising purposes on securities and the documentation and information accompanying said requests, must be presented to the National Banking and Securities Commission and presented electronically, through the STIV, in the form and terms established by annex R of these provisions. Regarding shares; credit titles representing them; development, real estate, indexed, energy and infrastructure investment, or investment project trust certificates; optional titles and debt instruments that must be issued based on an issuance act, a copy of the request and of the documentation and information indicated must additionally be presented.
Second paragraph.- Repealed.
. . .
. . .
. . .
. . . "
" ARTICLE 23.- The relevant information and documentation referred to, insofar as applicable, in Articles 2, to 4 Bis 1 and 16, of these provisions, including that relating to development, real estate, indexed, or energy and infrastructure investment trust certificates, must be available at least 10 business days in advance of the date of price fixing or book closure.
In the case of subsequent offerings, such information must be available at least 5 business days prior to the date of price fixing or book closure. Regarding debt instruments or structured securities and trust titles on assets other than shares, provided that all of these have a term greater than 1 year, as well as securities of companies of foreign nationality, trusts, or any other vehicle for the issuance of securities authorized or registered in some foreign securities market recognized with which the exchanges have entered into an agreement, it must be available to the public at least 5 business days prior to the date of price fixing or book closure. For debt instruments or structured securities and trust titles on assets other than shares, provided they have a term equal to or less than 1 year, as well as public offerings of shares of anonymous investment promotion companies, the information must be available to the public for at least 2 business days prior to the date of price fixing or book closure. Regarding restricted public offerings, the information referred to in this article must be available at least 2 business days prior to the date of price fixing or book closure. In the case of public offerings of acquisition referred to in Article 16 of these provisions, the information must be available on the day the corresponding offering begins.
. . .
. . .
. . . "
" ARTICLE 31.-
. . .
I.
Shares; credit titles representing them and development, real estate, indexed, energy and infrastructure investment, or investment project trust certificates, will be traded exclusively with the intermediation of brokerage houses, through the systems provided for in the internal regulations of the stock exchange in question. Regarding shares, without prejudice to the right of individuals to freely dispose of the ownership of their securities outside the exchange, provided they adjust, if applicable, to Articles 98 to 103 and 109 to 112 of the Securities Market Law.
II. and III.
. . . "
" ARTICLE 33.-
. . .
I.
. . .
a)
. . .
. . .
Repealed.
. . .
. . .
The annual financial statements or their equivalents corresponding to issuers of development or investment project trust certificates that, in terms of Article 7, fractions VI, subsection a), paragraph 6., or IX, subsection a), paragraph 8., of these provisions, allocate at least 70% of the issuance resources to investment in unlisted collective investment mechanisms on any stock exchange, must be presented no later than June 30 of each year.
When the aforementioned issuers maintain invested more than 30% of the issuance resources in securities other than those indicated in Article 7, fractions VI, subsection a), paragraph 6., or IX, subsection a) paragraph 8., of these provisions, what is provided in the previous paragraph will not apply to them and they must present the annual financial statements or their equivalents within the term indicated in subsection a) of this fraction.
- and 5.
. . .
b)
. . .
Annual report corresponding to the immediately preceding fiscal year, prepared in accordance with the instruction attached to these provisions as annex N, N Bis, N Bis 1, N Bis 2, N Bis 3, N Bis 4 or N Bis 5 or according to the type of issuer, signed on the final page by:
1.1. to 1.3.
. . .
1.4.
Regarding development, real estate, energy and infrastructure investment, or investment project trust certificates, in substitution of the persons referred to in paragraph 1.1., above, signed by:
1.4.1. to 1.4.3.
. . .
The annual report corresponding to issuers of development or investment project trust certificates that, in terms of Article 7, fractions VI, subsection a), paragraph 6., or IX, subsection a), paragraph 8., of these provisions, allocate at least 70% of the issuance resources to investment in unlisted collective investment mechanisms on any stock exchange, must be presented no later than June 30 of each year.
In the event that the aforementioned issuers maintain invested more than 30% of the issuance resources in securities other than those indicated in Article 7, fractions VI, subsection a), paragraph 6., or IX, subsection a) paragraph 8., of these provisions, what is provided in the previous paragraph will not apply to them and they must present the annual report within the term indicated in subsection b) of this fraction.
Repealed.
. . .
II.
. . .
. . .
. . .
The terms of 20 and 40 business days referred to in the second paragraph of this fraction will not apply to those issuers of development or investment project trust certificates that, in terms of Article 7, fractions VI, subsection a), paragraph 6., or IX, subsection a), paragraph 8., of these provisions, allocate at least 70% of the issuance resources to investment in unlisted collective investment mechanisms on any stock exchange. Issuers of such trust certificates must present the quarterly information referred to in this fraction no later than within 20 business days following the end of the quarter subsequent to that to which the information corresponds.
When the issuers referred to in the previous paragraph maintain invested more than 30% of the issuance resources in securities other than those indicated in Article 7, fractions VI, subsection a), paragraph 6., or IX, subsection a), paragraph 8., of these provisions, what is provided in the preceding paragraph will not apply to them and they must present the quarterly information within the term indicated in the second paragraph of this fraction.
. . .
. . .
Last paragraph.- Repealed.
a)
. . .
b)
In the case of development, real estate, energy and infrastructure investment, or investment project trust certificates, the certificate referred to in this fraction must be signed by:
- and 2.
. . .
III.
. . .
. . .
. . .
. . .
In the case of ordinary participation certificates on shares of 2 or more issuers, trust titles on assets other than shares and development, real estate, energy and infrastructure investment, or investment project trust certificates, the trustee or, if applicable, the common representative, must present only the information referred to in fraction I, subsection a), paragraph 3., and II of this article, referring to the trust estate affected. Additionally, regarding trust titles on assets other than shares and development, real estate, energy and infrastructure investment, or investment project trust certificates, they must present the information provided in fraction I, subsection b), paragraph 1., of this same article.
For the case of development, real estate, energy and infrastructure investment, or investment project trust certificates, in the event that the information relative to the companies or projects regarding which the trust invests or acquires titles representing their share capital, if applicable, that individually represent 10% or more of the trust estate or, in the case of those placed under the capital call mechanism, 10% of the maximum amount of the issuance, unless such information is consolidated in the financial statements presented regarding the trust, the information contained in fraction I, subsection a), paragraph 3., of this article, must be presented in relation to each of said companies or projects. The financial information of the aforementioned companies must be prepared in accordance with what is provided in Article 78 Bis 1 or 79 of these provisions, as applicable. The information of the aforementioned companies or projects may be omitted regarding values placed through restricted public offering. Likewise, the report referred to in fraction I, subsection b) paragraph 1., of this article, must contain the characteristics of each of the companies regarding which the trust invests or acquires titles representing their share capital, including the degree of compliance with the business plan and investment calendar and, if applicable, divestments mentioned in annexes H Bis 2, H Bis 3, H Bis 4 or H Bis 5 of these provisions. In all cases, the main differences between said business plan and investment calendar with the progress obtained must be revealed, as well as the consequences that have been generated by the non-compliance of these in relation to each of the companies regarding which the trust invests or acquires titles representing their share capital.
The information referred to in fraction II of this article, which is presented regarding trust titles on assets other than shares and on development, real estate, energy and infrastructure investment, or investment project trust certificates, must additionally include the information detailed in fraction II, subsection C), paragraph 2., of annex N Bis 1, in fraction II, subsection C), paragraph 2., of annex N Bis 2, in fraction II, subsection C), paragraph 2., of annex N Bis 3, in fraction II, subsection C), paragraph 2., of annex N Bis 4, and in fraction II, subsection C), paragraph 2., of annex N Bis 5 of these provisions, respectively.
. . .
. . .
. . .
. . .
. . .
. . .
ARTICLE 34.- . . .
I. to V.
. . .
VI.
At least 3 business days prior to the start of the term in which the update of registration is intended to be carried out, the notice of exchange of titles of issuers of development, real estate, or investment project trust certificates issued under the capital call mechanism must be made.
. . .
Third paragraph.- Repealed.
. . .
. . .
ARTICLE 35 .- . . .
I.
. . .
. . .
. . .
Issuers may defer the presentation of the aforementioned brochure when the corporate restructuring has the character of confidential as agreed or when there are conditions inherent to the operation that prevent the issuer from having the necessary information to prepare the respective brochure. Issuers must present the brochure no later than the next business day after the corporate restructuring ceases to be confidential or when the issuer has the necessary information for its preparation.
When the issuer defers the presentation of the informational brochure due to not having the necessary information for its preparation, it must publish a relevant event on the date when the brochure should have been presented in accordance with what is provided in the second paragraph of this fraction, describing the corporate restructuring, the information not available, and the date when it is estimated to have said information.
. . .
II.
. . .
. . .
. . .
ARTICLE 35 Bis.- Issuers of development, real estate, or investment project trust certificates of
investment projects, which they issue under the capital call mechanism, on the day following the expiration of the deadline to participate in them, must provide the Commission, the relevant stock exchange, and the general public with the following information:
I. to IV.
...
...
ARTICLE 35 Bis 1 .- . . .
I.
To the Commission, the relevant stock exchange, and the general public, on a quarterly basis, within 20 business days following the end of each of the first quarters of the fiscal year and within 40 business days following the conclusion of the fourth quarter, the level of leverage or indebtedness, as applicable, that they maintain and the debt service coverage index referred to in Article 7, fractions VII, subsection a), numerals 4. or 5., and VIII, subsection a), numeral 7., of these provisions, calculated in accordance with what is provided in Annex AA of these provisions and breaking down, at least, the components used for their calculation in accordance with said annex.
...
II.
To the Commission, within 40 business days following the close of the fourth quarter, pro forma financial statements of the issuer for the following fiscal year, based on the figures corresponding to said fourth quarter, in terms of Article 81 Bis of these provisions, which reflect the issuer's capacity to comply with the maximum limit of liabilities they maintain in accordance with what is provided in Article 7, fractions VII, subsection a) numerals 4. or 5., and VIII, subsection a), numeral 7., of these provisions.
...
...
The provisions of this article shall also apply to issuers of trust certificates for development or investment projects, in the event that the resources of the issuance are intended to be predominantly used to grant credits, loans, or financing to companies or to acquire debt securities issued by them, charged to the trust's equity, and additionally intend to contract credits or loans; therefore, for the purpose of complying with what is provided in subsection I, within the deadlines established therein, they must disclose the level of leverage they maintain and the debt service coverage index referred to in Article 7, fractions VI, subsection a), numeral 4., and IX, subsection a), numeral 6. Additionally, in order to comply with what is provided in subsection II, within the deadlines determined therein, they must disclose the pro forma financial statements that reflect the issuer's capacity to comply with the maximum limit of liabilities they maintain in terms of what is provided in Article 7, fractions VI, subsection a), numeral 4., or IX, subsection a), numeral 6., of these provisions.
" ARTICLE 48.-
...
I.
The type of operation they intend to carry out, with specification of the class of securities to be acquired or disposed of, as well as the volume or amount of the operation. In the case of shares or trust certificates for development, real estate, energy and infrastructure investment, or investment projects, the series must be specified.
II. to IV.
...
...
In the event that such authorization is granted, the person in question must inform the Commission no later than the next business day after they carried out or celebrated the last of the authorized operations, the result thereof, including the date of celebration, volume traded, price, and intermediary through which it was carried out. In the case of shares or trust certificates for development, real estate, energy and infrastructure investment, or investment projects, the operation must be carried out on the exchange and at the market price corresponding to the day on which it is carried out.
ARTICLE 49 .- . . .
I. to IV.
...
V.
Dispose of shares or trust certificates for development, real estate, energy and infrastructure investment, or investment projects, of one series and with the resources obtained acquire shares or certificates of another series of the same issuer.
VI.
Dispose of shares or trust certificates for development, real estate, energy and infrastructure investment, or investment projects to obtain cash in order to address emergency situations.
ARTICLE 50 .- . . .
...
I. and II.
...
III.
...
a)
The negotiation or consummation of investment projects, merger or spin-off, or those that imply the acquisition of shares of the issuer that modify its capital structure and, if applicable, that of the legal entities it controls or in which it has significant influence. The provisions of this subsection shall also apply when it comes to trust certificates for development, real estate, energy and infrastructure investment, or investment projects.
b) to k)
...
IV.
...
a) to k)
...
l)
The modification to the stock option plans for key executives and employees, as well as to the trusts constituted for such purpose. Included in this subsection is the modification to the option plans for the employees of the issuers or administrators of trust certificates for development, real estate, energy and infrastructure investment, or investment projects.
m) and n)
...
V. to VII.
...
VIII.
In the case of trust certificates for development, real estate, energy and infrastructure investment, or investment projects:
a)
...
b)
Whose placement prospectus has included what is provided in Article 7, fractions VI, subsection a), numeral 6., and IX, subsection a) numeral 8., of these provisions, when they maintain more than 30% of the issuance resources in investments in securities other than those indicated in said numeral, in which case, additionally, they must disclose that from that moment on, the quarterly and annual financial information, as well as the annual report, will be disclosed in terms of Article 33, fractions I, subsections a), numeral 3., b), first paragraph and II, second paragraph of these provisions, as applicable to the type of information.
c)
In the event that they obtain the Commission's authorization to publish a notice for informational purposes, complementary to the placement prospectus, through which they inform the adoption to adhere to the regime provided in Article 7, fraction VI, subsection a), numeral 6., and IX, subsection a), numeral 8., of these provisions, they must disclose such fact, as well as that from that moment on the financial information referred to in Article 33, fraction II will be disclosed no later than within 20 business days following the conclusion of the quarter subsequent to that to which the information corresponds, and that the annual financial statements or their equivalents referred to in Article 33, fraction I, subsection a), numeral 3., as well as the annual report referred to in Article 33, fraction I, subsection b) numeral 1., all of these provisions, will be submitted no later than June 30 of each year.
d)
In the event that the call for a general assembly of holders includes within the agenda any of the topics referred to in Article 7, fraction VI, subsection a), numeral 1., fraction VII, subsection), numeral 1., fraction VIII, subsection a), numeral 1., and IX, subsection a), numeral 1., of these provisions or well, Article 64 Bis 1, fraction I, subsection c) of the Securities Market Law, as applicable, the detailed information that will be presented for approval of said assembly in relation to such topics. Such disclosure must be made on the same day that the corresponding call is published.
e)
That they have provided in the issuance documents the assumption of credits, loans, or financing charged to the trust's equity, by the settlor, administrator of the trust's equity or whoever is entrusted with such functions, or by the trustee, in terms of these provisions:
i)
When for any cause it exceeds the maximum limit of leverage or indebtedness established in Article 7, fractions VI, subsection a), numeral 4.1., VII, subsection a), numerals 4.1. or 5., second paragraph, VIII, subsection a), numeral 1.2., second paragraph or well, IX, subsection a), numeral 6.1., and 6.2., second paragraph of these provisions;
ii)
When for any reason the debt service coverage index, established in accordance with Article 7, fractions VI, subsection a), numeral 4.2., VII, subsection a), numeral 4.2., and 5., second paragraph and IX, subsection a), numeral 6., is less than 1.0 or, in the case of trust certificates for energy and infrastructure investment, said index is less than that which has been determined by the assembly in accordance with Article 7, fraction VIII, subsection a), numeral 7.;
iii)
When for any cause it exceeds the maximum limit established in Article 7, fractions VI, subsection a), numeral 4., fourth paragraph in the case of trust certificates for development; fraction VII, subsection a), numeral 4., fifth paragraph and numeral 5., second paragraph in the case of real estate trust certificates; VIII, subsection a), numeral 7., in the case of trust certificates for energy and infrastructure investment, and IX, subsection a), numeral 6., fourth paragraph, in the case of trust certificates for investment projects;
iv)
When the technical committee has approved the corrective plans referred to in Article 7, fractions VI, subsection a), numerals 4.1., last paragraph and 4.2., last paragraph, VII, subsection a), numerals 4.1., last paragraph and 4.2., last paragraph or 5., fourth paragraph, VIII, subsection a), numeral 7., last paragraph or well, IX, subsection a), numeral 6.1., last paragraph, of these provisions. In all cases, they must present at least the main characteristics and actions they contain, or
v)
The non-compliance with the corrective plans referred to in Article 7, fractions VI, subsection a), numerals 4.1., last but one paragraph and 4.2., last but one paragraph, VII, subsection a), numerals 4.1., last paragraph and 4.2., last paragraph or 5., fourth paragraph, VIII, subsection a), numeral 7., sixth paragraph and IX, subsection a), numeral 6.1., last paragraph and 6.2., last paragraph of these provisions.
IX. and X.
...
In the case of trust titles or securities whose compliance depends totally or partially on the settlor, administrator of the trust's equity, the guarantor or surety or any other third party, the information referred to in this article must be disclosed, as applicable, in relation to said subjects. Likewise, for the case of trust certificates for real estate development, energy and infrastructure investment, or investment projects, the information of this article must be disclosed and sent additionally, in relation to the companies with respect to which the trust invests or acquires titles representing their share capital, considering each of the investments or divestments that, if applicable, are carried out.
...
...
...
" ARTICLE 53.- Issuers must implement the necessary mechanisms to guarantee that the acquisition or sale operations of the shares representing their capital or credit titles that represent them, or well, the issuers of trust certificates for development, real estate, energy and infrastructure investment, or investment projects, carried out by their shareholders, council members, key executives, holders, members of the technical committee or equivalents, are notified to them no later than on the same date on which they carry out said operations, in order to comply with the requirements formulated by the Commission or the exchanges in terms of what is established in Article 106 of the Securities Market Law. "
" ARTICLE 68.-
The designation and acceptance of the position of common representative shall confer upon this person the obligation to exercise the actions and rights that correspond to the set of holders of the securities, for the payment of capital and unpaid due interests to them by the issuer, as the case may be, without prejudice to other powers that the laws confer upon them.
The base documents of the issuance must expressly incorporate:
I.
That the common representative must verify, through the information provided to them for such purposes, the timely and proper compliance of the obligations established in the issuer trust contract, title, issuance act, service provision contract or similar with the administrator, master administrator or whoever performs equivalent services, as well as any guarantee or credit support contract, as well as, if applicable, the state in which the trust's equity is kept.
II.
The obligation of the issuer, the trustee and the other parties in said documents, to deliver to the common representative the information and documentation that is necessary to verify the compliance with the obligations referred to in the previous subsection I.
III.
The right of the common representative to request from the issuer, the trustee and the other parties in said documents or from those persons who provide them with services related either to the securities or to the trust's equity, the information and documentation that is necessary to verify the compliance with the obligations referred to in the previous subsection I.
IV.
The periodicity with which the common representative may carry out visits or reviews to the persons referred to in the previous subsection.
V.
The obligation of the common representative to immediately request from the issuer that the public be made aware, through a relevant event, of any non-compliance with the obligations established in the base documents of the issuance by the issuer, the trustee and the other parties in said documents.
In the event that the issuer omits to disclose the relevant event in question, within two business days following the notification made by the common representative, this person shall have the obligation to publish said relevant event immediately.
VI.
The obligation of the common representative to account for the performance of their functions, when requested by the general assembly of holders or at the time of concluding their mandate.
VII.
That the common representative may request from the general assembly of holders or this order that specialized third parties be subcontracted to assist them in the fulfillment of their review obligations established in this article or in the applicable legislation, subject to the responsibilities established by the assembly itself. In the event that the general assembly of holders does not approve the subcontracting, the common representative shall only be liable for the activities that are directly attributable to them in terms of these provisions or of the applicable legal provisions. "
" ARTICLE 78 Bis 1.- The financial statements of the associates; counterparties or providers of financial instruments related to structured securities; third parties related to the issuance of trust titles referred to in Article 7, fraction II, subsection b), trust certificates for development, real estate, energy and infrastructure investment, or investment projects, as well as entities or legal entities other than the issuer, the settlor or administrator of the trust's equity or whoever is entrusted with such functions, guarantor or surety of the assets, when the payment obligation that backs the respective securities depends totally or partially on these, that are obliged to present financial information in accordance with these provisions, must be prepared in accordance with one of the following options:
I. and II.
...
...
ARTICLE 79.-
...
...
...
...
...
...
The financial statements of the associates; counterparties or providers of financial instruments related to structured securities; third parties related to the issuance of trust titles referred to in Article 7, fraction II, subsections b) and real estate, energy and infrastructure investment, or investment project trust certificates; as well as entities or legal entities other than the issuer, the settlor or administrator of the trust's equity or whoever is entrusted with such functions, guarantor or surety of the assets, when the payment obligation that backs the respective securities depends totally or partially on these that are of foreign nationality, may be presented in accordance with the accounting standards provided in this article. "
TRANSITORY CLAUSES
FIRST.- This Resolution shall enter into force the day following its publication in the Official Gazette of the Federation.
SECOND.- Issuers that maintain short-term securities registered provisionally under the placement program modality under Article 92 of the Securities Market Law, as well as those that have obtained and maintained the authorization referred to in Article 13 Bis of the General Provisions applicable to securities issuers and other participants in the securities market, provided that the program is still in effect, may continue to issue securities under said programs for a period of one year counted from the entry into force of this Resolution without the provisions of Article 68 of this instrument being applicable to them.
Once this period has elapsed, in order to carry out short-term issuances under placement programs as well as those that have obtained and maintained the authorization referred to in Article 13 Bis of the aforementioned Provisions, issuers must obtain the update of the registration of the corresponding securities, in order to incorporate what is provided by Article 68 of the General Provisions applicable to securities issuers and other participants in the securities market.
Respectfully,
Mexico, D.F., on December 21, 2015. - The President of the National Banking and Securities Commission, Jaime González Aguadé. - Signature.
ANNEX A
Content of the written request for authorization of registration of securities and public offers of disposal
Name of the issuer or, if applicable, of the issuing trust institution, as well as of the settlor, the administrator and the trustee in the base issuance trust.
Name of the legal representative authorized to present the request.
Address for receiving notifications and telephone number in Mexico.
Name(s) of the person(s) authorized to receive notifications and carry out the procedures inherent to the request.
Specification of the acts whose authorization and approval are requested.
Number and characteristics of the securities to be registered (class, series, nominal value, amount, term, interest rate, amortization, guarantee or collateral and any other that allows their full identification). In the case of global offers, the above information will be complemented with data relating to the placement location, applicable legislation, if applicable, listing on foreign stock exchanges and placement agents.
In the case of guaranteed or collateralized instruments, information on the guarantor or surety as well as on the guarantees, their constitution and form of execution.
In the case of trust titles, description of the trust equity.
In the case of program authorizations, the characteristics of the same, as well as the maximum and minimum term of the issuances under the program.
In the case of registrations with public offer, the characteristics of said offer.
9.1
Type of offer (primary, secondary, national, international).
9.2
Number of titles to be placed.
9.3
Total amount of the offer.
9.4
Period or date of the offer.
9.5
Name of the placement intermediary.
In the case of shares or trust titles or securities issued by trusts on shares, or trust certificates for development, real estate, energy and infrastructure, or investment projects, as applicable:
9.6
If applicable, over-allotment mechanics.
9.7
Percentage of paid-up share capital or trust equity after the offer, that the shares or securities subject of the offer will represent and, if applicable, percentage including over-allotment option.
9.8
Share capital or trust equity structure before and after the offer.
9.9
Placement price range and bases for its determination.
9.10
The special operations that, if applicable, will be carried out in the public offer.
9.11
Regarding the settlor, administrator or any of its affiliates, information on corporate restructurings that have not been made known to the public investor and that are in process.
9.12
In the case of trust certificates for development, real estate, or investment projects that are issued through the capital call mechanism, additionally:
9.12.1
Amount of the initial minimum contribution.
9.12.2
Amount up to which the total capital calls could be made.
In the case of debt titles:
9.13
Name of the common representative of the holders.
In the case of debt titles with a term equal to or less than 1 year:
9.14
General information regarding their activity and the location of their main offices, as well as data relating to the members of their board of directors and officials within the hierarchy immediately below that of general director and, if applicable, the name of the companies with which they integrate the same business group or subsidiaries. The above shall not be applicable to those issuers that maintain other securities registered, provided that they are up to date in the delivery of periodic information.
9.15
Information on the expenses incurred by the issuer, for carrying out the provisional registration, under the modality of placement program or, if applicable, for the issuance and placement of debt titles, including at least, those corresponding to: (i) study and procedure before this Commission, (ii) legal advisor fees, (iii) if applicable, external auditors, (iv) rating agencies, (v) common representative and, (vi) if applicable, guarantor or surety; understanding that this information must be broken down by each of the advisors, service providers or companies contracted by the issuer.
List of the annexes attached to the request.
Signature of the legal representative of the issuer, of the legal representative of the shareholders or holders
vendors (in the case of secondary offerings) or, where applicable, the issuing fiduciary institution and the settlor.
Signature of the legal representative of the placing intermediary accepting their appointment and, where applicable, of the entity acting as the common representative of the holders.
ANNEX H BIS 5
Instructions for the preparation of placement prospectuses, information memoranda and supplements applicable to fiduciary securities for investment projects
I.
GENERAL GUIDELINES
This instruction includes the information disclosure requirements to which issuances of fiduciary securities for investment projects, carried out by financial institutions in their capacity as trustees, must adhere for the preparation of placement prospectuses, information memoranda and supplements with the aim of obtaining registration in the Registry and authorization for public offers of alienation and/or subscription of such instruments.
The preliminary placement prospectus must include the most recent information known as of the date of submission of the application. Regarding the definitive placement prospectus, such information must be updated, to the extent relevant, to the date of placement, except in cases where the general provisions and this instruction specify a particular date or period.
In the event that certain subsections or chapters of this instruction are not applicable to the specific assets, rights or securities backing the issuance in question, it will not be necessary to develop them; however, depending on the case, equivalent information must be provided. Likewise, if certain information required in any section of this instruction has been included in another chapter of the placement prospectus, it will not be necessary to include it again, only a reference to the chapter where it is found must be made.
The order in which the chapters of the prospectus are presented must adhere to this instruction, unless the Commission, in the case of global offers, authorizes a different order, in which case a summary table must be included indicating the chapters where the requirements contained in this instruction are incorporated.
In the preparation of the prospectus, clear and easy-to-understand language must always be used, avoiding the use of technical terms or complex legal formalisms that cannot be easily understood by a person who does not have specialized knowledge in the subject matter. Likewise, superlative terms and value judgments must be avoided; however, if deemed necessary, they must be adequately justified.
The placement prospectus must include strictly descriptive information about the characteristics of the issuance and must not contain recommendations, analysis or opinions on the possible viability of the investment.
For the purposes of this instruction, the term placement prospectus shall also be understood to include the information supplement and information memorandum, except when indicated otherwise.
A)
Principle of relevance
In addition to the information explicitly required in the various subsections contained in this instruction, all relevant information must be provided.
This principle must be followed in the preparation of the prospectus when determining the depth and breadth with which the various topics established in this instruction must be developed.
It shall be the responsibility of the persons who sign the document to determine what information is relevant in the context of the particular characteristics of each issuer and the structure of the issuance in question.
When determining what information is relevant, both quantitative and qualitative factors must be taken into account.
B) External information sources and expert declarations
When a report, statistics or other information contained in the placement prospectus has been obtained from a public information source, it must be cited and when the information comes from an expert, a declaration must be added indicating that such information has been included, with the consent of the person.
C) Global offers
In the event that authorization is requested to carry out a global public offer, all information that the legal provisions of the countries where the securities are offered require them to include in the placement prospectus distributed in national territory must be included in the placement prospectus distributed in national territory, in addition to the information required in this instruction, eliminating those sections that are not considered applicable or relevant for Mexican investors.
In the event that the issuer carries out a public offer in Mexico and at the same time carries out a public offer in any other market and the latter is carried out under terms and conditions different from those established for the offer in national territory, such terms and conditions must be disclosed in the corresponding chapters.
D) Currency denomination
All figures presented must be expressed in the same currency as the financial statements, unless otherwise indicated in the prospectus or supplement. Regarding figures denominated in foreign currency, when the issuer considers it convenient to present a conversion of such figures to Mexican pesos, the exchange rate of the date of the last period presented or that which corresponds in accordance with the applicable accounting regulations must be used.
In any case, the exchange rate used to convert the figures to Mexican pesos must be indicated.
Likewise, the date of the exchange rate(s) used must be indicated, as well as the official source and the technical specifications thereof (for example, closing exchange rate, average, etc.).
Likewise, the type of conversion used must be indicated and, in the event that the exchange rate in force on the date of the last period presented has been opted for, clarify that such conversion was made solely for the purpose of facilitating reading and understanding for investors, mentioning that these should not be interpreted as statements that the amounts in the currency used to prepare the financial statements actually equate to those amounts in Mexican pesos or that they can be converted to Mexican pesos according to the indicated exchange rate.
II. INCORPORATION BY REFERENCE
When, under the terms of this annex, information regarding the settlor, the administrator of the trust assets or whoever is entrusted with such functions must be included, information contained in the annual report or reports that the securities issuer has provided to the relevant stock exchange and to the general public in accordance with what is provided in subsections II to V of article 104 of the Securities Market Law and in these provisions may be incorporated by reference.
Incorporation by reference must be carried out in accordance with the following:
·
The index of the prospectus must contain all the chapters and sections required in this instruction and, when any of them has been incorporated by reference, this situation must be indicated at the bottom of each title or subtitle, indicating the source document and the date of its submission to the relevant stock exchange as well as the Internet page where said document can be consulted publicly.
·
Chapters of documents that do not fully comply with the requirements contained in this instruction, in the opinion of the Commission, cannot be incorporated by reference.
·
A section titled "Recent Events" must be included in which relevant information not disclosed in the documents incorporated by reference is indicated.
Information on foreign guarantors or sureties that is disclosed in their market of origin may be incorporated by reference, provided that it is a foreign issuer whose securities are registered, authorized or regulated for sale to the general public by the Securities Commissions or equivalent bodies of the States that are designated members of the Council of the International Organization of Securities Commissions or the body that replaces it.
The respective placement prospectus must indicate the Internet page where such information can be consulted during the validity of the issuance.
In the event that such information is not available in Spanish, the placement prospectus must include a risk factor regarding this matter.
III. ISSUANCES CARRIED OUT UNDER THE AUTHORIZATION OF THE PROGRAM MODALITY
The placement prospectus prepared in relation to a placement program, in accordance with article 13 of these provisions, must contain the information detailed in this instruction, except for the characteristics related to the offer referred to in chapter 2) and the cover of this instruction, in which case the characteristics of the program will be included instead.
The characteristics of the securities to be offered will be included in a supplement to the prospectus which must contain the following information:
·
The information contained in the section "Prospectus Cover" of this instruction.
·
The information contained in chapter 2) relating to "The Offer" of this instruction.
·
A section titled "Recent Events" must be included in which relevant information not disclosed in the program prospectus or documents incorporated by reference is incorporated.
·
The following paragraph must be included in "bold" at the end of the index within the prospectus, ensuring it is at least 2 points larger in font size than that used in the index: "This supplement is an integral part of the program prospectus authorized by the National Banking and Securities Commission, so both documents must be consulted together".
·
The information supplement may incorporate by reference the information presented to the relevant stock exchange and to investor public after the last updated program prospectus, in accordance with what is provided in subsections II to V of article 104 of the Securities Market Law and in these provisions.
The program prospectus must be updated in all its chapters if, having elapsed 1 year from the date of its publication or, from its last update, a new issuance is carried out under the program, except for issuers that are up to date in the delivery of the periodic information referred to in Title Four of these provisions.
The placement prospectus, supplements to the prospectus and the corresponding notices, which are prepared in relation to a placement program or, regarding issuances of securities whose placement is in one or more series, in terms of what is provided for in article 13 Bis of these provisions, must contain in the "Prospectus Cover" section the declaration referred to in the aforementioned article 13 Bis.
IV. INFORMATION REQUIRED IN THE PROSPECTUS
A) Prospectus cover
Data that is not known at the date of preparation of the preliminary prospectus, such as the price and date of placement of the securities, must be indicated, with a blank space.
The prospectus cover must contain at least the following information:
·
Mention of being a restricted public offer.
·
Logo of the fiduciary institution and the Settlor.
·
Name of the fiduciary institution and the settlor. (indicate other figures if applicable).
·
Board code.
·
Number and characteristics of the titles offered (class, series, type, if applicable, nominal value and others that allow their full identification).
·
Denomination of the reference currency in which the issuance is carried out.
·
Price or price range of placement.
·
Total amount of the offer.
In the event that the issuance is carried out under the capital call mechanism, the total amount of the issuance as well as, where applicable, the maximum number of securities intended to be registered in the Registry, within a period of one year, from the date that such initial public offer has been made.
·
Term and maturity date.
·
Where applicable, number of series into which the issuance is divided.
·
Number of trust and data relating to the trust contract.
·
Name of the trustee.
·
Settlor.
·
Administrator of the trust assets or whoever is entrusted with such functions.
·
Beneficiaries.
·
Investor with whom there are co-investment agreements.
·
Indication of any other relevant third party(ies) receiving payment from the trust.
·
Assets, rights or securities entrusted.
·
Summary of the most relevant characteristics of the assets, rights, projects or goods that make up the trust assets.
·
Rights conferred by the fiduciary securities for investment projects.
·
Periodicity and method of amortization of the titles.
·
Distributions, periodicity and calculation procedure.
·
Source of distributions.
·
Place and method of payment of distributions.
·
Denomination of the common representative of the title holders.
·
Where applicable, valuation report.
·
Indication that there is no obligation to pay principal or interest.
·
In the case of issuances under a program, total authorized amount, if applicable, with revolving character.
·
Date of publication of the offer notice.
·
Period or date of the offer.
·
Date of book closure or auction.
·
Date of registration in the relevant stock exchange.
·
Date of settlement.
·
Net proceeds to be obtained from the placement (breakdown of expenses related to the offer, including the brokerage commission, indicating, where applicable, if they were covered with resources from the settlor or any other third party, being able for such purposes to make a cross-reference to the corresponding chapter).
·
Possible acquirers: "Institutional investors and qualified to give instructions at the desk.
·
Denomination of the placing intermediary.
·
Where applicable, denomination of the intermediaries participating in the placing syndicate.
·
Depository.
·
Legal basis of the applicable tax regime.
·
Where applicable, the mention of any risk associated with the operation in question, which due to its relevance must be included in the prospectus cover.
·
The mention that the titles are registered and are subject to quotation or registration in the corresponding list in the stock exchange.
·
The legend referred to in the penultimate paragraph of article 86 of the Securities Market Law "Registration in the National Securities Registry does not imply certification of the goodness of the securities, solvency of the issuer or of the accuracy or truthfulness of the information contained in the prospectus, nor does it validate the acts that, if any, may have been carried out in contravention of the laws".
·
Registration number in the registry.
·
Place and date of publication of the prospectus or, where applicable, the notice.
·
Number and date of the Commission's authorization letter to publish the prospectus or, where applicable, the notice.
·
Where applicable, the legend "Prospectus available with the placing intermediary" and the Internet pages where it can be consulted.
·
In the case of the preliminary document, the legend "Preliminary Prospectus" in red ink, as well as the following: "The information contained in this preliminary prospectus is subject to changes, reforms, additions, clarifications or substitutions."
The updated version of this preliminary prospectus that includes the cited changes, reforms, additions, clarifications or substitutions that may be made between the date of this document and the date on which the offer takes place, can be consulted on the Internet page of the (name of the relevant stock exchange) and of the Commission at the following addresses, respectively:
(include Internet page addresses)
Likewise, any change made to this preliminary prospectus under the aforementioned terms, will be made public through the (name of the relevant SEDI) on its Internet page):
(include Internet page address)
"The securities referred to in this preliminary prospectus cannot be offered or sold until the National Banking and Securities Commission authorizes their offer under the terms of the Securities Market Law. This preliminary document does not constitute a public offer of alienation of the described securities."
In the event that the denomination of any other third party not provided for in the Securities Market Law and these provisions is included, include what their work consisted of and their responsibilities regarding the issuance.
The public offer notice must contain the same information as the prospectus cover.
B) Index
On the first page of the prospectus, an index of its content must be incorporated according to the following:
- GENERAL INFORMATION
a) Glossary of terms and definitions
b) Executive summary
c) Risk factors
d) Public documents
- THE OFFER
e) Characteristics of the securities
f) Use of proceeds
g) Distribution plan
h) Expenses related to the offer
i) Functions of the common representative
j) Names of persons with relevant participation in the offer
- STRUCTURE OF THE OPERATION
a) General description
b) Trust assets
i) Description of the assets, goods or rights entrusted
ii) Evolution of the entrusted assets, including their income
iii) Contracts and agreements
iv) Judicial, administrative or arbitral proceedings
c) Business plan and investment calendar and, where applicable, divestment
d) General policies of the issuance, as well as regarding the protection of the interests of its holders
e) Valuation
f) Settlers
g) Relevant debtors of the trust
h) Administrators of the trust assets or whoever is entrusted with such functions
i) Parallel investment vehicles and investors with whom there are co-investment agreements.
j) Commissions, costs and expenses of the administrator of the trust assets or whoever is entrusted with such functions
k) Other third parties obligated with the trust or the holders of the securities
l) Transactions with related parties and conflicts of interest
- THE SETTLOR
a) History and development of the settlor
b) Business description
i) Main activity
ii) Corporate structure
iii) Description of the main assets
iv) Judicial, administrative or arbitral proceedings
v) Shares representing the share capital
c) Administrators and shareholders
d) Bylaws and other agreements
e) Transactions with related parties and conflicts of interest
- THE ADMINISTRATOR OF THE TRUST ASSETS OR WHOEVER IS ENTRUSTED WITH SUCH FUNCTIONS
a) History and development of the administrator of the trust assets or whoever is entrusted with such functions
b) Business description
i) Main activity
ii) Human resources
iii) Corporate structure
iv) Judicial, administrative or arbitral proceedings
c) Administrators and shareholders
- FINANCIAL INFORMATION OF THE TRUST (WHERE APPLICABLE)
a) Selected financial information of the societies, projects and/or investment vehicles with respect to which the trust invests or acquires securities representing its share capital or has direct or indirect participation, which are not consolidated in the financial information of the trust
b) Report on relevant credits
-
RESPONSIBLE PERSONS
-
ANNEXES
a) Financial statements of the trust and investments (where applicable)
b) Legal opinion
c) Title backing the issuance
d) Trust contract
e) Additional information
f) Where applicable, issuance act
The following paragraph must be included in "bold" at the end of the index within the prospectus, ensuring it is at least 2 points larger in font size than that used in the index:
"No intermediary, attorney-in-fact to conduct transactions with the public, or any other person, has been authorized to provide information or make any statement that is not contained in this document. As a consequence of the foregoing, any information or statement that is not contained in this document shall be understood as not authorized by the issuer and (corporate name of the placing intermediary)."
C) Information that the chapters of the prospectus must contain
The content of the chapters indicated in this instruction will be prepared in accordance with what is established in the instructions for the preparation of the annual report (Annex N and N Bis 5), of these provisions, when so established.
- GENERAL INFORMATION
a) Glossary of terms and definitions
See Annex N, subsection II, subsection C), section 1), subsection a).
b) Executive summary
An executive summary must be presented regarding the assets, rights or securities that make up the trust assets or societies or projects in which the trust invests directly or indirectly, as well as, where applicable, their historical performance.
Include a brief description of the main characteristics of such assets, rights or securities, identifying the cut-off date used to determine their composition.
Likewise, relevant participants in the offer must be mentioned such as the originator and administrator of the assets. Likewise, it must contain a description and the main characteristics of the type of societies or projects with respect to the
which
the trust
will invest
or
acquire
securities
representing its share capital or participation, directly or indirectly, as well as, where applicable, the
financial and economic performance of these.
Additionally,
an executive summary of the
business plan and
calendar of investments
and,
where applicable,
disinvestments according to which
the investments in companies or projects in which
the Trust invests directly or indirectly will be carried out.
Likewise, a summary of the main policies of the issuance must be presented, as well as regarding
the protection of the interests of its holders.
c)
Risk factors
See Annex N Bis 5, fraction II, subsection C), item 1, subsection c).
d)
Public documents
It must be mentioned if copies of this document will be granted to the investor upon request, providing the name, address and telephone number of the person to whom investors must direct their requests. It must also indicate the public information that was delivered to the stock exchanges and is available to investors, as well as the name, telephone and email address of the person responsible at the trustee or, where applicable, the common representative, in charge of investor and analyst relations.
- THE OFFER
a)
Characteristics of the securities
Those data that are not known before the determination of the price and the placement date of the
securities, must be indicated, in the case of the preliminary prospectus, with a blank space.
The following information must be presented:
·
Type of offer.
·
Total amount of the issuance in Mexico and abroad, where applicable.
·
In
case
that
the
issuance
is
effected
under
the mechanism of capital calls, the total amount of the
issuance as well as, where applicable, the maximum number of securities intended to be registered in the Registry,
within a period of one year, from the time that said initial public offering has been made.
·
Number of securities offered in Mexico and abroad, where applicable.
·
Price or price range
of
placement of the securities,
as well as a description of the way in which
it was determined.
·
The period for which the offer will remain valid.
·
The method and deadline to settle the securities.
·
Possible
acquirers and, where applicable, possible limitations.
·
Mention whether it has or does not have a guarantee or other guarantee and the method to execute or make it effective.
·
In the
case
of
securities
with
mortgage
guarantee,
it must be specified the value of the assets
given as collateral, and the data of the current appraisal.
·
Mention if the assets given as collateral are insured and the data of the policy.
·
If
the
securities
have
fiduciary
guarantee,
it must include the value of the assets according to
current appraisal and the data of this, where applicable.
·
Transcription of other relevant terms of the title.
·
Identification
of the source of the resources
necessary to meet the distributions of the
securities.
·
Applicable tax regime.
·
Specify if the assets to be entrusted are insured, as well as the data of the policy.
b)
Destination of funds
The
prospectus or, where applicable, supplement, must show the net amount of the resources of the
offer, detailing each one of the main investments or acquisitions to be made with the product of the
placement, as well as the percentage allocated to each of them.
When the payment of the securities depends totally or partially on the settlor or on the companies
regarding which the trust will invest or acquire securities representing its share capital, they must
reveal:
·
If the resources are used directly or indirectly to acquire assets other than those of the
normal business of the
settlor, or of the companies regarding which the trust invests or
acquires securities representing its share capital, the type of assets and their cost, as well as the
expected benefit.
·
If the resources are intended to be used to finance the acquisition of other businesses, it must be
given a description of these latter, as well as inform about the existence of the negotiations for such
acquisition.
·
If a significant part of the resources is used to amortize partially or totally debt, it must be mentioned the amount, the interest rate and the original maturity date of such debts and, in case that the liabilities had been contracted the previous year, the destination that was given to such resources.
In the case of the preliminary prospectus, the information required in this chapter must be presented in an estimated form.
c)
Distribution Plan
Within this chapter, the following information must be provided:
·
Name of the lead placement intermediary, identifying if the securities will be offered by this under the terms of firm commitment or best efforts.
Likewise, it must be specified if the placement intermediary has signed or intends to sign any sub-placement contract with other brokerage houses to form a placement syndicate.
In case it is known, the estimated percentage of securities that will be distributed by each of the members of the placement syndicate or placement intermediaries that participate in the offer, in the preliminary prospectus and the number of securities effectively distributed by each of them in the definitive prospectus.
·
It must be indicated the business relationship or any other type of relationship that exists between the placement intermediary(ies) that participate(s) in the offer and the issuer, as well as any conflict of interest derived from the participation of the placement intermediary(ies) in the offer.
·
It must be revealed if the administrator of the trust's assets or to whom such functions are entrusted or the persons related to this intend to subscribe part of the securities that are the object of the offer.
In the definitive version, reveal if the aforementioned assumptions were effectively updated.
·
Include the sales strategy that is intended to be carried out to place the securities.
Likewise, the criteria used for the allocation of the securities must be explained, such as, if there is a minimum and maximum amount to be allocated per investor, allocation according to first come first served, pro-rata allocation, etc.
In case that the price of the securities is going to be determined according to the auction procedure, the requirements to participate in it must be revealed, the date from which bids can start to be received, the criteria to select the winners and the way to make the result of it known.
·
The placement intermediary that will be in charge of concentrating the bids.
If the placement intermediary intends to place partially or totally the securities object of the issuance among related parties with respect to said intermediary, indicating that these will participate on equal terms as the rest of the investors participating in the offer in the preliminary prospectus and the number of securities effectively distributed among its related parties in the definitive prospectus, indicating if it was under equal circumstances. Otherwise, include a negative statement.
·
It must be revealed if the administrator of the trust's assets or to whom such functions are entrusted or the persons related to this, intend to subscribe part of the securities that are the object of the offer. In the definitive version, reveal if the aforementioned assumptions were effectively updated.
·
Declare that the securities can only be acquired by institutional investors and qualified to give instructions to the trading desk, both in the initial public offering and in the secondary market.
Likewise, it must be specified that the investors to whom the offer is directed will participate on equal terms.
d)
Expenses related to the offer
It must be revealed estimated figures in the preliminary prospectus and the effective net resources of the placement in the definitive prospectus, as well as a general description of the expenses related to the offer, breaking down, for each one of the entities or advisors participating, the commissions for intermediation and placement, registration costs in the Registry, stock exchange listing, legal advisors and others, breaking down this last one whenever it is relevant with respect to the total of the expenses.
e)
Functions of the common representative
The issuer must relate in this section the functions of the common representative in accordance with what is established in the body of the title.
f)
Names of persons with relevant participation in the offer
A list of the names of the following persons must be presented:
·
Natural and/or legal persons designated and/or with relevant participation in the advice and/or consulting in relation to the offer of securities and involved in the legal or financial evaluation of the issuer, including any other expert hired by the issuer to whom any statement or report of importance included in the prospectus has been attributed, or who has prepared or certified any part of it, indicating in what consisted their work and their responsibilities with respect to the issuance.
·
Person in charge of investor relations.
·
Founding shareholders of the companies regarding which the trust invests or acquires securities representing its share capital if they participate in the administration of said companies, as well as the general terms and conditions of their hiring.
·
Natural and/or legal persons involved in the operation, such as the settlor, common representative, trustee, placement intermediary, among others.
It must reveal the participation of any parallel vehicle or investor with whom there are co-investment agreements that, where applicable, invest in the same investment projects as the issuer trust, or investor with whom there are co-investment agreements, according to what is provided in the trust contract itself. Likewise, the policies or criteria of participation to which the investments of said parallel vehicles or investors will be subject must be described, and any minimum or maximum limit for their participation.
- STRUCTURE OF THE OPERATION
a)
General description
Descriptive and schematic explanation of the investment operations, of the activities or projects of one or several companies, or of the acquisition of securities representing its share capital, that will be carried out, as well as regarding the securities issued, including the types or categories, classes or subordination of the securities that were offered.
Additionally, describe the funds that the trust will have and how the payments will be allocated among securities, as well as the origin of the resources for its payment.
The mention that the fiduciary title will not have a report on the credit quality of the issuance, issued by a securities rating institution authorized in accordance with the applicable provisions.
Reveal any policy, restriction or requirement regarding the flows coming from the investments, disinvestments or acquisitions, such as maintenance of minimum cash levels, requirements for investment of surpluses, contracting of hedges, etc. In this sense, provide information about the person responsible for taking any decision related to the deposit, transfer or distribution of the trust's funds and the necessary authorizations, as well as if there is any type of verification or validation by an independent third party on the compliance with such policies, restrictions or requirements. Where applicable, include the report or opinion of said third party as an annex to the prospectus.
Reveal the way in which the technical committee of the trust will be integrated in accordance with what is provided in article 7, fraction IX, subsection a), item 4., of these provisions..
In the case of securities with mortgage guarantee, it must be specified the value of the assets given as collateral, a brief description of them and the data of the current appraisal, as well as a summary of the most important data of the assets such as weighted average rate, number, average term, etc.
b)
Trust assets
The issuer may present the financial information corresponding to this chapter only for the last two fiscal years and the most recent quarter for which information is available.
i)
Description of the assets, goods or rights entrusted
Describe in general terms, the nature and main characteristics of the goods, rights or securities entrusted.
Include information that allows identifying any relevant classification of said goods, rights or securities, such as degree of concentration, age, location, etc.
Likewise, the characteristics and eligibility criteria of the companies regarding which the trust invests, will invest, acquires or will acquire securities representing its share capital must be included.
Regarding investment, acquisition and/or disinvestment contracts, the minimum requirements that will be contained must be indicated, such as percentage of securities representing the share capital to be acquired; target term of the investment, possible disinvestment mechanisms according to the characteristics of the investment in question; prohibitions or limitations that the administrator establishes in each case; conditions for early termination or rescission of the contract; method and terms in which the companies regarding which the trust invests, will provide information to the trust itself.
Likewise, the minimum information with which the investing public will have, in relation to the companies regarding which the trust invests or acquires securities representing its share capital, must be indicated.
ii)
Contracts and agreements
A summary of the trust contract, as well as any other contract relevant for the operation, such as administration or operation, assignment, among others, must be presented, in a format that facilitates its understanding.
In this section, the functions and responsibilities of each of the participants in the operation of the trust for the investment in the activities or projects of the companies or the acquisition of securities representing its share capital must be clearly described, including, among others: the terms and conditions under which the administrator of the trust's assets or to whom such functions are entrusted must collect and provide to the trustee, any flow coming from the goods, rights or securities entrusted, as well as those related to the custody and safeguarding procedure of the documents that support the entrusted assets in question.
Likewise, reveal any verbal or written agreement or contract entered into in terms of what is provided in article 7, fraction IX, subsection a), item 5, third paragraph of these provisions.
iii)
Judicial, administrative or arbitral proceedings
Briefly describe any pending legal procedure against the administrator of the trust's assets or to whom such functions are entrusted, trustee, as well as any other third party that is relevant for the holders of the securities.
Include similar information for any procedure of which there is knowledge and that can be executed by governmental authorities.
c)
Business plan, analysis and calendar of investments and, where applicable, disinvestments
The business plan, as well as a detailed annual calendar with the dates on which the investments and, where applicable, disinvestments and those on which the holders of the securities referred to in this subsection will receive the part of the fruits, yields or, where applicable, residual value of the goods or rights affected in trust will be carried out.
Likewise, the consequences in case of total or partial non-compliance with the business plan or established calendar must be indicated.
Additionally, the expected global yield from the acquisitions or investments that are made must be revealed, taking into consideration, where applicable, the business history and performance of the companies regarding which the trust will invest or acquire securities representing its share capital, warning about the possible risks that the expected yields are not met.
Likewise, clarify that the investments or acquisitions will be carried out based on the available information, which may change and therefore, the real behavior could differ, to a greater or lesser extent, from said expected yields.
The policies, procedures and evaluations that it has, in order to evaluate the characteristics of the investment projects in which it intends to invest. Where applicable, describe if such evaluations allow the administrator, at least:
·
Analyze the characteristics of the investments.
·
Know the risks inherent to the investments.
·
The scheme of payment of income or yields generated by the investments, and
·
Determine that the operation is in accordance with the investment policies of the trust.
d)
General criteria of the issuance, as well as regarding the protection of the interests of its holders
The general policies of the issuance as well as regarding the protection of the interests of the holders of the fiduciary stock certificates of investment projects must be included for the best achievement of their interests.
The policies must mention the activities and functions of the settlor, trustee, administrator of the trust's assets or to whom such functions are entrusted in relation to their participation in the market and in the issuance itself.
Likewise, the minimum policies contained in article 7, fraction IX, subsection a) of these provisions must be included.
Likewise, in case that the issuance is effected under the mechanism of capital calls, what is provided by article 7th, fraction IX, subsection a), item 7., of these provisions must be added.
e)
Valuation
Indicate that the valuation of these securities will be carried out by an independent appraiser with the experience and resources necessary to carry out the corresponding valuation, including the companies regarding which the trust invests or acquires securities representing its share capital.
In any case, the criteria that the appraiser uses must follow a methodology based on international standards for the valuation of private capital and risk or, as appropriate, with common schemes of discounting cash flows to present value.
Likewise, the periodicity of the valuation must be specified, which must be carried out at least once a year, or when there is any modification in the structure of the trust's assets, specifying who will pay the expenses derived from the valuations referred to in this item.
f)
Settlors
In this section, with respect to the settlor of the assets, a description, to the extent considered relevant, of its experience in the execution of the business, as well as information on the performance of other securities backed by the same type of assets, goods or rights including any default or delay in its payment.
It may present information corresponding to this subsection only for the last two fiscal years and the most recent quarter for which information is available.
g)
Relevant debtors
When the fulfillment of the obligations of the trust depends totally or partially on a single debtor or debtors, provide, with respect to each debtor or debtors, the information referred to in fraction II, subsection C), items 2 to 4 of Annex N of these provisions and that is considered relevant to evaluate the credit risk of the debtor or debtors in question.
It may present information corresponding to this subsection only for the last two fiscal years and the most recent quarter for which information is available.
h)
Administrators of the trust's assets or to whom such functions are entrusted
Include the name of the administrator of the trust's assets or to whom such functions are entrusted and a brief description of its organizational form.
Likewise, include to the extent considered relevant, the following:
·
Information about its experience as administrator of the trust's assets or to whom such functions are entrusted and the procedures it uses when carrying out the administration or operation functions for the type of goods, rights or securities entrusted, such as collection systems, distribution of flows coming from the assets, subcontracting of services, systems for generating reports, among others.
·
Size, composition and growth of all goods, rights or securities that it administers or operates, and that are similar to those that make up the trust's assets.
·
Relevant changes in the last three fiscal years to its policies or procedures applicable to the administration or operation activities that it will carry out for the type of goods, rights or securities entrusted.
In case that the trust has a master administrator, include an explanation of the administration structure, as well as the functions and responsibilities of
each
one
of
the
participants
in
said
structure, identifying the name and percentage of the portfolio and projects in which each of the primary administrators invests or administers.
i)
Parallel investment vehicles or investors with whom there are co-investment agreements.
It must disclose the participation of any parallel vehicle that, if applicable, invests in the same investment projects as the issuing trust, or investors with whom there are co-investment agreements, in accordance with what is provided in the trust agreement itself. Likewise, the policies or criteria for participation to which the investments of said parallel vehicles or investors will be subject must be described, as well as any minimum or maximum limits for their participation.
j)
Commissions, costs and
expenses of the trust estate administrator or to whom such functions are entrusted
The guidelines for the payment of commissions, costs and expenses, of the administrator or operator of the trust estate of the trust, including concepts and amounts, as well as the mechanism for their return, if applicable.
k)
Other third parties obligated with the trust or the holders of the securities
When there are other third parties obligated with the trust or the holders of the securities such as investors with whom there are co-investment agreements, guarantors, guarantors, counterparties in financial derivative or hedging operations, credit support, among others, the following information must be included at a minimum regarding each third party in question:
·
Corporate name and trade name or, if applicable, the name of the natural person, as well as a description of the business in which it participates.
·
Terms and conditions of its obligations including the form and/or procedures to make them enforceable.
·
Any other information that is considered relevant to evaluate the credit risk of the third party in question.
l)
Transactions with related parties and
conflicts of interest
See Annex N Bis 5, fraction II, subsection C), item 2), subsection i)
Disclose if there are conflicts of interest between the administrator and potential investors. Likewise, any relevant business relationships, agreements or conventions between the trustee, settlor, the administrator or anyone to whom such functions are entrusted, rights or settlor securities, relevant debtors, investors with whom there are co-investment agreements, holders of the securities or any other third party that is relevant to the holders of the securities must be indicated, even if they are not directly related to the securities issued by the trust and the structure of the transaction, including the projects or investments to be made that could imply some conflict of interest between the administrator and the investors. If applicable, the policies and guidelines to avoid the existence of conflicts of interest must be included, which must consider the scope of the relationships between the different participants in the trust and the investors therein.
Disclose the mechanism to reveal to the investor relevant information that will NOT be public.
Investors in securities subject to a restricted public offering may request, from the common representative or the trustee, access to information that the issuer is not obligated to reveal to the public, provided that they accompany their request with the certificate accrediting the ownership of the respective securities, issued by any securities depository institution.
THE TRUST ESTATE ADMINISTRATOR OR TO WHOM SUCH FUNCTIONS ARE TRUSTED
a)
History and
development of the trust estate administrator or to whom such functions are entrusted
See Annex N, fraction II, subsection C), item 2), subsection a), in relation to the trust estate administrator or to whom such functions are entrusted.
b)
Business description
See Annex N, fraction II, subsection C), item 2), subsection b), in relation to the settlor.
c)
Administrators and
shareholders
See Annex N, fraction II, subsection C), item 4), subsection c), regarding the settlor.
- THE SETTLOR
a)
History and
development of the settlor
See Annex N, fraction II, subsection C), item 2), subsection a), in relation to the settlor considering that information related to changes in products and services offered may be omitted.
b)
Business description
See Annex N, fraction II, subsection C), item 2), subsection b), in relation to the settlor.
c) Administrators and
shareholders
See Annex N, fraction II, subsection C), item 4), subsection c), regarding the settlor.
d)
Bylaws and
other agreements
See Annex N, fraction II, subsection C), item 4), subsection d), regarding the settlor.
Likewise, a summary of the clauses of the bylaws of the settlor that are considered most important must be presented, taking into account the characteristics of this type of society, corporate governance, minority rights, acquisition of own shares and cancellation of registration in the Registry.
On the other hand, the manner in which ordinary and extraordinary general meetings of shareholders will be called must be mentioned, including the conditions to participate in them.
e)
Transactions with related parties and
conflicts of interest
See Annex N Bis 5, fraction II, subsection C), item 3), subsection f).
THE TRUST ESTATE ADMINISTRATOR OR TO WHOM SUCH FUNCTIONS ARE TRUSTED
a)
History and
development of the trust estate administrator or to whom such functions are entrusted
See Annex N, fraction II, subsection C), item 2), subsection a), in relation to the trust estate administrator or to whom such functions are entrusted.
b)
Business description
See Annex N, fraction II, subsection C), item 2), subsection b), in relation to the settlor.
c)
Administrators and
shareholders
See Annex N, fraction II, subsection C), item 4), subsection c), regarding the settlor.
When it comes to fiduciary titles whose resources coming from the issuance are intended to be destined at least 70% to investment in collective investment mechanisms not listed on any stock exchange, in terms of article 7th, fraction IX, subsection a), item 8., second paragraph of these provisions, it must include the warning that quarterly and annual financial information, as well as the annual report, may be presented within the timeframes referred to in article 33, fractions I, subsections a), item 3, third paragraph, and subsection b), item 1, second paragraph and II, fourth paragraph of these provisions, depending on the type of information in question, as well as the causes of the delay.
- FINANCIAL INFORMATION OF THE TRUST (IF APPLICABLE)
a) Selected financial
information of the project companies and/or investment vehicles with respect to
which the trust invests or acquires titles representative of their share capital or
has direct or indirect participation,
which are not consolidated in the financial information of the
trust
See Annex N Bis 5, fraction II, subsection B), item 5), subsection a).
b)
Report on relevant credits
See Annex N Bis 5, fraction II, subsection B), item 5), subsection b).
- RESPONSIBLE PERSONS
Include the name, position and institution that represent the people who, in accordance with these provisions, must sign the document, these data must appear at the foot of the legends established for this purpose.
- ANNEXES
a)
Financial statements
When compliance with the obligations regarding the securities that are issued under the auspices of the trust depends totally or partially on the following legal persons, it must include, with respect to each of them, the financial statements indicated in articles 2, fraction I, subsection f) and 4, fraction V of these provisions, as applicable:
settlor, administrator of the trust estate or to whom such functions are entrusted, other third parties obligated with the trust or the holders of the securities such as guarantors, guarantors, counterparties in financial derivative or hedging operations, credit support, among others, or any relevant debtor.
In the case that the legal persons referred to in the previous paragraph already have shares or debt titles registered in the Registry, they must include the last financial statements that have been presented to the Commission and the corresponding stock exchange, in substitution of the limited review financial statements referred to in the aforementioned articles, provided that they are up to date in the delivery of periodic information referred to in Title Four of these provisions.
b)
Legal opinion
A copy of the legal opinion indicated in article 87 of the Securities Market Law must be added.
c)
Title that covers the issuance
A copy of the title that covers the issuance indicated in article 2, fraction I, subsection e) of these provisions must be added.
d)
Trust agreement
A copy of the base trust agreement of the issuance must be added.
e)
Additional information
If applicable, the report or opinion of the external auditor who would have carried out any type of verification or validation on the compliance by the administrator of the trust estate or to whom such functions are entrusted, or operator, of policies, restrictions or requirements regarding the flows coming from investments, divestments or acquisitions, as well as regarding the reasonableness and reliability on the evolution of assets, rights or values other than those settlor.
In case that in said report or opinion mention is made of the performance of projects subject to investment in other vehicles of the same administrator, the opinion must consider the performance of the totality of the cited projects.
The opinion of the external auditor may not contain judgments on the viability of the promoted projects or of the potential investment in the fiduciary stock certificates of investment projects.
The scope of such opinion must be described and mentioned and incorporated into the placement prospectus.
The foregoing, without prejudice to this Commission requesting additional information from the settlor, the administrator of the assets or third party, in cases it deems necessary.
f)
If applicable, issuance minutes
In case that the issuance is carried out under the mechanism of capital calls, the issuance minutes must be included which contain at least, what is indicated by article 7, fraction IX, subsection a), item 7., of these provisions.
ANNEX H Third
Instruction for the preparation of the document with key information for investment
I.
GENERAL GUIDELINES
This instruction includes the information disclosure requirements to which issuers must adhere for the preparation of the document with key information for investment, which will be presented to the Commission in order to obtain registration in the registry.
The document with key information for investment must be prepared based on an information disclosure approach; that is, providing the investor with the necessary information so that they can make an investment decision about the value placed by the issuer in question.
The preliminary document with key information for investment must include the most recent information known at the date of submission of the request, in the case of the definitive document with key information for investment, this information must be updated, to the extent that it is relevant, to the date of placement.
In case that certain sections of this instruction are not applicable to the specific business of the issuer, it will not be necessary to develop them; however, depending on the case, equivalent information must be provided.
The order in which the different sections of the document with key information for investment are presented must adhere to this instruction, except for those particular cases that require a different order and are previously authorized by the Commission.
In the preparation of the document with key information for investment, clear and easy-to-understand language must always be used, avoiding using technical terms or complicated legal formalisms that cannot be easily understood by a person who does not have specialized knowledge in the matter in question. Likewise, superlative terms and value judgments must be avoided, however, if considered necessary, they must be adequately justified.
II.
DOCUMENT WITH KEY INFORMATION FOR INVESTMENT
The document with key information for investment contains the most important aspects of the issuer, the value and, if applicable, the operation, in a format that allows its comparison for informed investment decision-making.
The document with key information for investment must use a font size greater than 8 points and the total length of the document cannot exceed 6 pages.
III.
CONTENT OF THE DOCUMENT
This section contains the main identification data of the issuer, as well as the type of value to be inscribed. In case that certain data are not applicable to a certain type of value, it will not be necessary to include them. Those data that are not known at the date of preparation of the preliminary document with key information for investment, such as the price and date of placement of the securities, must be indicated, with a blank space.
A.
GENERAL DATA
·
Number and characteristics of the titles that are offered (classes, series, type, nominal value, if applicable, and others that allow their full identification), as well as the rights they confer.
·
Mention of being a public offering and type of this (primary, secondary, national, international, restricted).
·
Name of the issuer and, if applicable, name of the selling shareholders.
·
Ticker symbol.
·
Number of values that will be allocated to over-allotment and the manner in which this must be exercised.
·
In the case of global offerings, the amount, number of titles or percentage of the titles to be placed in the offering in Mexico and abroad.
·
Placement price or price range for placement.
·
Total amount of the offering (in case of mixed offerings, specify the amount of each offering).
·
In the case of issuances under the auspices of a program, total authorized amount, if applicable, with a revolving character.
·
Period or date of the offering.
·
Date of closing of the book or auction.
·
Name of the placing intermediary.
·
If applicable, minimum amount of each order.
·
Possible acquirers: in the case of public offerings "
Natural and legal persons when their investment regime expressly provides for it "
and, if applicable, possible limitations or, in the case of restricted public offerings "
Institutional investors and qualified to give instructions to the table "
.
·
Legal basis of the applicable tax regime.
·
Contact data of the placing intermediary.
In the case of shares, additionally the following must be included:
·
Number of shares representative of the share capital of the issuer, before and after the offering.
·
In case of mixed offerings, the number of values of the primary portion and the number of values of the secondary portion must be specified.
·
Percentage of the share capital that the shares of the offering represent and, if applicable, percentage including over-allotment option, after the offering.
·
Present the price/earnings multiple, price/book value and the price/UAFIDA multiple (earnings before financial expenses, taxes, depreciation and amortization) of the issuer before and after the offering, as well as the multiple of the sector or branch to which it belongs and that of the market.
In the case of debt titles, additionally the following must be included:
·
Term and maturity date.
·
Rating granted by rating institution.
·
Number of series into which the issuance is divided, if applicable.
·
Interest rate, discount rate or yield.
·
Periodicity and form of amortization of the titles and, if applicable, indicate causes and treatment of early amortization.
·
Guarantee or guarantee(s), if applicable.
·
Place and form of payment of interest or yields and principal.
·
Name of the common representative of the holders of the titles.
·
Subordination of the titles.
·
Hedging.
In the case of securities issued under the auspices of a trust, additionally the following must be included:
·
Number of trust and data related to the trust agreement.
Name of the trustee.
Settlor.
Beneficiary.
Assets, rights or values settled.
·
Rights conferred by the securities issued under the auspices of the trust.
·
Diagram of the operation.
·
Brief description of the historical behavior and composition of the settled assets.
In the case of structured securities, additionally the following must be included:
·
Characteristics or general terms of the underlying assets.
·
Guaranteed capital.
·
Historical behavior of the underlying.
·
Numerical example.
In the case of fiduciary stock certificates for development, real estate, investment in energy and infrastructure or investment projects of these provisions, additionally the following must be included:
·
Indication that there is no obligation to pay principal or interest.
·
In case that there are series of limited vote, the obligation to pay distributions preferentially to the holders of said series.
·
Economic sectors or assets subject to predominant investment
·
Capital calls, if applicable.
·
Amount of the initial contribution, if applicable.
·
Maximum amount of the issuance.
·
Leverage policies or maximum debt limit.
·
Debt service coverage ratio
·
Brief description of the historical behavior of the assets subject to investment and, if applicable, experience of the administrator.
In the case of optional titles, additionally the following must be included:
·
Characteristics of the exercise (optionality).
B.
RISK FACTORS
The issuer must present a summary of the main factors that can significantly affect its performance and profitability, as well as those capable of influencing the price of its securities.
·
They must be ordered according to the importance they represent for the issuer.
·
The issuer must present risk factors particular to the respective issuance, avoiding presenting risk factors that can apply generically to any issuer or to any offering.
·
The main risk factors around the issuer and/or of whom there is partial dependence must be specified, for example, risk factors on patents, licenses, brands and other contracts, main clients, fiscal situation, and judicial, administrative or arbitral processes, transactions with related parties and conflicts of interest, bylaws and other agreements, relevant credits, etc. that could affect the administration, course of business or its financial situation.
C.
CHARACTERISTICS OF THE OFFERING
A descriptive and schematic explanation of the operation to be carried out must be presented.
D.
THE ISSUER
The business in which the issuer participates must be described, as well as, if applicable, the person with respect to whom there is partial dependence, and a list of the main activities of the issuer, showing the various categories of the products sold or of the services provided.
E.
FINANCIAL INFORMATION
- Selected financial information
Selected financial information must be presented in comparative columns for the last 3 fiscal years. The purpose of this information is to highlight, through an easy-to-read format, certain trends in the financial situation of the issuer and in its operating results. This information must adjust to the particular characteristics of the issuer, but in any case must include at least the following information:
(Income Statement)
Year 1
Year 2
Year 3
Total income
Net profit
UPA
EBITDA
(Balance Sheet)
Year 1
Year 2
Year 3
Cash
Fixed asset
Other assets
Total assets
Stock exchange liabilities
Bank liabilities
Other liabilities
Total liability
Equity
In any case, the following legend must be included: "
To know the detailed financial situation of the issuer, as well as to have an integral understanding of the selected financial information, we suggest you consult the prospectus and respective financial statements "
.
- Comments and analysis of Financial Information
This section cannot exceed the length of 1 page and must provide information that facilitates the analysis and understanding of the issuer's financial position and performance at the time of placement, for which it must use the information corresponding to what are referred to in article 2nd, fraction I, subsection f), 3rd, fraction VII or 4th, fraction V of these provisions, as applicable.
It is the responsibility of the issuer to select and explain the financial information, to that effect, it must show significant information that refers to the most relevant topics taking into account its particular circumstances.
The comments must include information relative to the issuer's resources, the liens on such resources, as well as on the commitments, transactions,
events and circumstances that may significantly affect the issuer's liquidity, performance, or financial position. Additionally, the issuer must explain the trends, risks, or other factors it knows of that could affect its future performance, position, and development regarding its liquidity, capital sources, income, or profits.
The analysis and comments on financial information should aid in understanding:
· The nature of the business; · The management's objectives and strategies to achieve them; · The most important resources, commitments, and relationships; · The results of operations and related expectations; · The issuer's exposure to risk, as well as the strategies and effectiveness in managing them; · How resources not presented in the financial statements could affect the issuer's operations; · How non-financial factors affect the information contained in the financial information.
- Securities market information
In the case of share offerings by issuers listed on a stock exchange or other foreign securities exchanges, information must be provided through a graph:
· The maximum and minimum price per series and the average volume traded on the exchange and in the main market outside Mexico, for each of the last 5 years; the maximum and minimum prices of each semester corresponding to the last 2 fiscal years, and with respect to the last 6 months, the maximum and minimum prices of each month. · A comparison of said prices against the main index of the corresponding stock exchange.
In the event of having or having had the services of a market maker during the previously mentioned periods, this situation must be indicated.
F. LEGENDS AND MEANS OF ACCESS TO MORE INFORMATION
The issuer must indicate that the documents presented as part of the application for registration with the Commission and listing on the relevant stock exchange may be consulted on their Internet pages.
Likewise, it must indicate the address and telephone numbers of its main offices, as well as the data of the person in charge of investor relations.
Likewise, the following legends must be included:
· The Legend "Document with key investment information available with the placing intermediary or administrator" and the internet pages where it can be consulted. · In the case of the preliminary document, the legend "Preliminary document with key investment information" in red ink, as well as the following: "The information contained in this preliminary document with key investment information is subject to change, reforms, additions, clarifications, or substitutions". · The definitive version of the document with key investment information, which includes the changes, reforms, additions, clarifications, or substitutions made between the date of presentation of the preliminary version and the date on which the offering takes place, may be consulted on the internet page of the (name of the corresponding stock exchange) and of the National Banking and Securities Commission at the following addresses (include internet page addresses).
ANNEX N BIS 4
Instructions for the preparation of the annual report applicable to fiduciary securities certificates invested in energy and infrastructure
I. GENERAL GUIDELINES
This instruction includes the annual information disclosure requirements to which emissions made by financial institutions in their capacity as trustee must adhere to maintain their registration in the registry.
The annual report must include the information known as of the date closest to its presentation, except in cases where a specific date or period is specified.
If certain requirements are not applicable to the specific assets, rights, or securities backing the emission in question, it will not be necessary to present information on that particular requirement; however, depending on the case, equivalent information must be provided. Likewise, if certain information required in any section of this instruction has been included in another chapter of the annual report, it will not be necessary to include it again; a reference to the chapter where it is located is sufficient.
When instruments issued by the financial institution in its capacity as trustee are registered in the registry, and in foreign markets where they trade require the presentation of a report similar to that described in this manual, the order in which the annual report is presented may be the same as that of the report presented in those markets, provided that all the information required in this instruction is included. In the latter case, a table must be included indicating the chapters where the requirements contained in this annex are incorporated.
In the preparation of the annual report, clear and easy-to-understand language must always be used, avoiding technical terms or complicated legal formalisms that cannot be easily understood by a person who does not have specialized knowledge in the subject matter. Likewise, superlative terms and value judgments must be avoided; however, if deemed necessary, they must be adequately justified.
A) Principle of relevance
In addition to the information explicitly required in the various subsections contained in this instruction, all relevant information must be provided.
This principle must be taken into account when determining the depth and breadth with which the various topics established in this instruction must be developed.
It is the responsibility of the persons signing the annual report to determine what information is relevant according to the context of the particular characteristics of each emission. To determine what information is relevant, both quantitative and qualitative factors must be taken into account.
The Commission may require the inclusion of information in addition to or in substitution of the information required in this instruction when the disclosure of such information to investors is considered necessary.
B) External information sources and expert declarations
When a report, statistic, or other information contained in the annual report has been obtained from a public information source, it must be cited; and when the information comes from an expert, a declaration must be included indicating that such information has been included with the consent of the latter.
II. INFORMATION REQUIRED IN THE ANNUAL REPORT
a) Annual report cover
· The annual report cover must contain the following information:
· Logo of the fiduciary institution and the settlor. · Name of the fiduciary institution and the settlor (indicate other figures if applicable, e.g., adhering settlor). · Address of the trustee and the settlor. · Ticker symbol. · Number and characteristics of the titles (class, series, type, if applicable, and others that allow full identification). · Name of the stock exchanges where they are registered. · Trust number and data related to the trust agreement. · Beneficiaries. · Trust estate administrator or whoever is entrusted with such functions. · Trust advisor. · Indication of any other relevant third party(ies) receiving payment from the trust. · Distributions, periodicity, and calculation procedure. · Source of distributions. · Maximum debt limit. · Debt service coverage ratio. · Indication that there is no obligation to pay principal or interest. · Indication that fiduciary securities certificates invested in energy and infrastructure are not amortizable. · Place and method of payment of distributions. · Name of the common representative of the title holders. · Custodian. · Tax regime. · If applicable, valuation opinion. · Mention that the securities are registered and are subject to quotation or registration in the corresponding listing on a stock exchange. · The legend referred to in the penultimate paragraph of Article 86 of the Law. · The legend "Annual report presented in accordance with the general provisions applicable to securities issuers and other participants in the market" and the period being presented (e.g., year ended December 31, 2002).
b) Index
On the first page of the annual report, an index of its content must be incorporated, according to the following:
- GENERAL INFORMATION
a) Glossary of terms and definitions b) Executive summary c) Risk factors d) Other securities issued by the trust e) Significant changes to the rights of securities registered in the registry f) Use of funds, in case of significant differences from that indicated in the offering prospectus of the initial offering or subsequent offerings g) Public documents
- THE TRUST
a) History and development of the trust b) Structure of the operation i) Sectors in which the trust is focused to invest (energy or infrastructure) ii) Patents, licenses, trademarks, and other contracts iii) Main customers iv) Applicable legislation and tax regime v) Human resources vi) Market information vii) Administration structure viii) Judicial, administrative, or arbitral proceedings ix) Rights x) Distributions c) Description of the assets forming the trust estate i) Assets, rights, or securities owned by the trust ii) Asset acquisitions iii) Evolution of the trust's assets, including income, current concessions, expiration of relevant contracts, etc. iv) Performance of the trust's assets, including the main indices of the energy and infrastructure industries v) Compliance with the business plan and investment calendar, and if applicable, divestments vi) Relevant debtors of the trust d) Relevant contracts and agreements e) Administrator f) Commissions, costs, and expenses of the administrator, advisor, or any other third party(ies) receiving payment from the trust g) Related-party transactions and conflicts of interest h) External auditors i) Other third parties obligated with the trust or the holders j) Capital markets i) Structure of the trust and main holders ii) Behavior of fiduciary securities certificates invested in energy and infrastructure in the securities market iii) Market maker
- SETTLOR OR PROMOTER OF THE COMPANIES OR PROJECTS
a) History and development of the settlor or promoter of the trust b) Business description i) Main activity ii) Human resources iii) Corporate structure iv) Judicial, administrative, or arbitral proceedings c) Administrators and shareholders
- FINANCIAL INFORMATION OF THE TRUST
a) Selected financial information of the trust b) Report on relevant credits c) Management comments and analysis on operating results i) Operating results ii) Financial situation, liquidity, and capital resources iii) Internal control d) Selected financial information of the companies with respect to which the trust invests or acquires shares representing their capital stock, which are not consolidated in the trust's financial information e) Critical accounting estimates, provisions, or reserves
-
RESPONSIBLE PERSONS
-
APPENDICES
a) Audited financial statements b) Additional information c) Information that the chapters of the annual report must contain
- GENERAL INFORMATION
a) Glossary of terms and definitions See Annex N, section II, subsection C), numeral 1), subsection a).
b) Executive summary An executive summary must be presented on the evolution of the assets, rights, or securities forming part of the trust, including a summary of financial information. Likewise, the main relevant events of the issuer must be mentioned, primarily related to risk factors, compliance with applicable contracts, judicial, administrative, or arbitral proceedings, relevant participants in the operation such as the settlor, promoter of the companies or projects, administrator of the trust estate or whoever is entrusted with such functions, relevant debtors, and other third parties obligated with the trust or the holders of the securities, among others.
Likewise, it must contain a description and the main characteristics of the assets, rights, or securities forming part of the trust, as well as their performance.
Additionally, an executive summary of the compliance with the business plan and investment calendar, and if applicable, divestments, in accordance with which investments have been made in the trust's activities.
c) Risk factors
The factors that may significantly affect the performance of the assets backing the emission and the source of payment of the instruments must be explained.
It is recommended that they be ordered according to the importance they represent for the operation. Likewise, risk factors that could apply to any instrument must not be presented.
In this sense, the information provided must refer to factors such as the following, in case such situations arise: that there is no obligation to pay principal or interest, and that these instruments might lack liquidity; detailing the factors that may significantly affect the performance of the assets, rights, or securities backing the emission and the source of payment of the instruments; a brief explanation regarding the risks inherent to the assets, rights, or securities forming part of the trust; risks of the current situation of the trust's estate, concentration in a significant client or group of clients, risks associated with the assets, rights, or securities, significant restrictions in the contracts backing the operation, historical behavior of the assets, rights, or securities, sources of payment of the issued instruments, difficulty in replacing the promoter of the companies or projects, administrator, or advisor of the fiduciary estate, special terms and conditions applicable to the type of security issued, risks associated with the execution of guarantees or hedges contracted, as well as the administration and collection of assets, liens or contingencies on the assets, rights, or securities, lack of audits performed by an independent expert on the fiduciary assets, rights, or securities, or when audits have a limited scope.
The declaration by the issuer that the fiduciary, the settlor, or the administrator of the trust estate or whoever is entrusted with such functions, must adhere to the level of debt approved by the general assembly of holders and calculated in accordance with what is established in Article 7, section VIII, subsection a), numeral 7.; the issuer's declaration that it will comply with the debt service coverage ratio calculated in accordance with what is established in Article 7, section VIII, subsection a), numeral 7, of these provisions; the consequences that arise, if any, from non-compliance with the corrective plan; the implications in the rights of the holders of fiduciary titles upon the assumption of credits, loans, or financing, and the use of resources resulting from the assumption of credits, loans, or financing.
The information appearing in this section is presented in an enumerative manner and is not limiting in any case.
The objective of this section is to summarize important factors that can be exposed in greater detail in another part of the prospectus.
d) Other securities issued by the trust See Annex N, section II, subsection C), numeral 1), subsection d).
e) Significant changes to the rights of securities registered in the registry See Annex N, section II, subsection C), numeral 1, subsection e)
f) Use of funds, if applicable
In the first annual report presented after the registration of the issuer's securities in the registry or after a subsequent emission, the application that has been made up to that moment of the resources derived from the public offering or the increase in the number of securities issued must be provided. In case there are resources left to be applied, these must be detailed in the next annual reports, until all resources are applied.
In case the use of funds has varied from that specified in the offering prospectus, an explanation regarding this must be provided.
g) Public documents
It must be mentioned whether copies of this document will be granted upon the investor's request, providing the name, address, and telephone number of the person to whom investors must direct themselves to request it. It must also indicate the public information that was delivered to the exchanges and is available to investors, as well as the name, telephone, and email of the person responsible with the fiduciary or, if applicable, the common representative, in charge of attending to investors and analysts.
- THE TRUST
a) History and development of the trust See Annex N, section II, subsection C), numeral 2), subsection a), with respect to the trust, considering that information related to changes in products and services offered may be omitted.
b) Structure of the operation
Descriptive and schematic explanation of the investment operations in assets, through one or more companies, or the acquisition of shares representing their capital stock, that will be carried out, as well as on the securities issued, including the types or categories, classes, or subordination of the securities offered.
The mention that the fiduciary title will not have an opinion on the credit quality of the emission, issued by a securities rating institution authorized in accordance with applicable provisions.
For subsections i) to viii); see Annex N, section II, subsection C), numeral 2), subsection b), with respect to the trust.
ix) "Rights", the rights conferred by fiduciary securities certificates invested in energy and infrastructure, specifying, if applicable, those corresponding to the certificates issued in series that grant holders limited voting rights.
x) "Distributions", in case they are issued through series that limit the exercise of the rights of the holders referred to in these provisions, the mechanisms that ensure the payment of distributions preferentially to the holders of said series.
c) Description of the assets forming the trust estate
The information included must cover at least 3 years of age or those available in case a significant portion of the fiduciary assets has a life shorter than that period. Likewise, indicate if the information has been reviewed by any independent third party, indicating the scope of its review.
i) Assets, rights, or securities owned by the trust.
Composition at the end of the reported period, of the number and balance of investments in assets and services qualifying, rights, or fiduciary assets, as applicable, by type of asset, by federal entity or geographic region, life, and investment period or other relevant variables, breaking down those assets that were added, acquired, sold.
ii) Asset acquisitions.
Composition of the qualifying assets and services acquired during the reported period and their main characteristics, as applicable, by type of asset, by federal entity or geographic region, life, and investment period or other relevant variables including date of acquisition or start of development.
iii) Evolution of the trust's assets, including income, current concessions, expiration of relevant contracts, etc.
In case the variations, with respect to the last reported period, are relevant, a description of the criteria and procedures used to originate, acquire, add, eliminate, substitute, sell, and liquidate investments or to make them the object of any other relevant movement must be included.
In case any of the fiduciary assets, goods, or rights have liabilities, the main characteristics of the credits, loans, or financing must be developed, including contingencies, payment priority; as well as a summary of the obligations to do or not do to which, if applicable, said assets are subject.
iv) Performance of the trust's assets, including the main indices of the energy and infrastructure industries.
Present the flows generated during the reported period, as a result of the performance of the trust's assets, presenting indices and financial ratios that allow knowing the financial stability, operational efficiency, and profitability of the trust's estate.
v) Compliance with the business plan and investment calendar, and if applicable, divestments.
Information regarding the degree of compliance with the business plan, the investment calendar, and if applicable, divestments, as well as the expected return, must be presented, explaining, if applicable, the reasons for total or partial non-compliance.
vi) Relevant debtors of the trust.
Indicate the debtors or third parties obligated with the trust that present delay or non-compliance and are in judicial, administrative, or arbitral process. The information referred to in this paragraph must be presented when the delay represents 3% or more of the trust's quarterly income.
d) Relevant contracts and agreements
A summary must be presented that includes the relevant clauses of the trust agreement, as well as the terms and conditions of the administration, advisory, operation, or any other contract considered relevant for the operation,
tales
as,
asset acquisition agreements,
concessions, the above in
a
format
that
facilitates
its understanding.
Additionally, it must describe any non-compliance with relevant contracts, identifying the
causes and the impact of such non-compliance on the trust.
Likewise, disclose any verbal or written agreement entered into in terms of what is provided in Article
7, fraction VIII, subsection a), item 1., last paragraph and 2.3., second paragraph in relation to fraction VIII,
subsection a), of that same article, of these provisions.
e) Administrator.
In the case of the administrator of the trust estate or whoever is entrusted with such
functions, describe specifically what their functions consist of; as well as at least the following aspects:
i) obligations and responsibilities, ii) content and frequency of their reports, iii) terms and conditions of the
compensation scheme, iv) standard of performance and diligence regarding the trust, v) grounds
for removal, vi) liability regime and conventional penalties.
Additionally, in the case of removal or substitution of the administrator of the trust estate or whoever
is entrusted with such functions, describe the substitution procedure and the possible
consequences derived from such substitution.
Regarding the technical committee and, if applicable, the other committees constituted to assist it, the
number of members that make it up (owners and alternates), the type of members, their
names, how they are appointed, functions, and the powers of each of them must be mentioned.
In the case of the administrator of the trust estate or whoever is entrusted with such
functions, mention the items that are applicable, regarding those described in the previous paragraph.
If any matter has been submitted to the vote of the security holders during the period
covered by the report, through any appropriate means, provide the following information:
i)
The date of the assembly.
ii)
If in said assembly it was decided on the appointment of committee members, the name of each
one of these, as well as any ratification carried out.
iii)
A brief description of any matter submitted to vote during the assembly as well as the
number of votes for each resolution, for or against.
iv)
A description of the terms of any agreement taken between the administrator or operator and
any other participant.
f) Commissions, costs and expenses of the administrator, advisor or
of any other relevant third party(ies) that receive(s) payment from the trust.
The guidelines for the payment of commissions, costs and expenses, of the administrator, advisor or of any
other relevant third party(ies) of the trust estate, including concepts and amounts, the above shall
be presented for the period reported in a format that facilitates its understanding.
g) Related-party transactions and conflicts of interest.
Describe, if applicable, any relevant transaction or credit that have been carried out in the last
3 fiscal years and up to the date of presentation of this report, between the trustee, settlor, the
administrator or operator of the trust assets, rights or securities, relevant debtors or any
other third party that is relevant to the security holders, indicating if they were carried out under market
conditions.
Likewise, any business relationship, agreements or relevant conventions between the
trustee, settlor, the administrator or operator of the trust assets, rights or securities,
relevant debtors or any other third party that is relevant to the security holders must be indicated, even if
they are not directly related to the securities issued by the trust and the structure of the
transaction.
Additionally, any other transaction that in terms of the International Financial Reporting Standards "International Financial Reporting Standards" issued by the International Accounting Standards Board "International Accounting Standards Board" shall be considered as
related-party transactions must be included.
h) External auditors.
Any change in external auditors who audited the financial statements of the
trust in accordance with the provisions, that has occurred in the last 3 fiscal years must be mentioned,
indicating if they resigned or were removed by whoever, according to the characteristics of the transaction, is
authorized to do so, as well as the reason for such resignation or dismissal.
On the other hand, any other opinion from an independent expert that has
been issued to comply with the requirements and characteristics of the operation must be specified and described, indicating the sense of said
opinion and the period covered.
i) Other third parties obligated with the trust or the holders
When there are other third parties obligated with the trust or the security holders such as
guarantors, guarantors, counterparties in derivative or hedging financial operations, credit support, among
others, and in the placement prospectus of the securities information regarding said
third parties had been included, an update of that information regarding each third party in question must be included, to
evaluate their credit risk, to the extent considered relevant.
j) Capital market
i) Trust structure and main holders
The trust structure must be clearly described, mentioning the companies that participate
in the administration and operation of the trust estate, the relationship between said companies, ownership
of investment trust certificates in energy and infrastructure, if applicable, if necessary
present the aforementioned information in a schematic manner.
Additionally, the following information must be provided, both for members of the technical
committee as well as for executives and relevant administrators of the trust estate: name, position, time that
has been working in the trust, companies where they are collaborating as main executives or as
members of the board of directors, indicating if said companies have any type of relationship with the
trust and any other information necessary to know their professional capacity. Additionally, the following information must be provided if considered relevant: age, highest level of education and companies
where they have collaborated as relevant executives or as members of the board of directors.
The name, denomination or corporate name of the natural or legal persons,
beneficiaries of more than 10% of the investment trust certificates in energy and
infrastructure in circulation must be provided.
ii) Behavior of investment trust certificates in energy and infrastructure in the
securities market.
A chart must be shown showing how the investment trust certificates in
energy and infrastructure behaved at the close of the last 5 fiscal years, each quarter for the last 2
fiscal years and monthly for the 6 months prior to the presentation of this report, including the price
maximum and minimum of the period, the volume traded, and stock exchange on which it trades. If available or
have had the services of a market maker in the periods previously mentioned, such situation must be
indicated and explain in general terms the impact of the market maker's performance on
the levels of operation and on the prices of the investment trust certificates in energy and
infrastructure, as well as on the maximum price differentials between the buy and sell positions
on said securities to which the market maker is or was subject in accordance with what is established by the
stock exchange that corresponds.
In the case that the quotation of the investment trust certificates in energy and
infrastructure has been suspended in the exchanges where it trades, explain the reasons for such suspension.
iii) Market maker.
If market maker services were received, the following information must be provided:
·
The denomination of each market maker that has provided its services during the year
immediately preceding.
·
The start of the validity, extension or renewal of the contract with the market maker in question, the duration of the same and, if applicable, the termination or rescission of the corresponding contracts.
·
The description of the services provided by the market maker; as well as the terms and
general conditions of contracting, in the case of valid contracts.
·
The general description of the impact of the market maker's performance on the levels of
operation and on the prices of the investment trust certificates in energy and infrastructure
with which such intermediary operates.
- SETTLOR OR PROMOTER OF THE COMPANIES OR PROJECTS
a)
History and development of the settlor or promoter of the companies or projects
See Annex N, fraction II, subsection C), item 2), subsection a), in relation to the settlor or promoter of the
companies or projects.
b)
Business description
See Annex N, fraction II, subsection C), item 2), subsection b), in relation to the settlor or promoter of the
companies or projects.
c)
Administrators and shareholders
See Annex N, fraction II, subsection C), item 4), subsection c), regarding the
settlor or promoter of the
companies or projects.
- FINANCIAL INFORMATION
a) Selected financial information of the trust
See Annex N, fraction II, subsection C), item 3), subsection a), in relation to the trust.
b) Report on relevant credits
See Annex N, fraction II, subsection C), item 3), subsection c), in relation to the trust.
c) Comments and analysis of management on operating results
See Annex N, fraction II, subsection C), item 3), subsection d), in relation to the trust.
d) Selected financial information of the companies with respect to which the trust
invests or acquires titles representing their share capital, which are not consolidated in the financial
information of the trust
Selected financial information must be presented in comparative columns for the last 3
fiscal years or those available depending on the time in which the investment or the
acquisition of titles representing the share capital of companies was made. This information must be
provided for a longer period when considered as relevant information. The purpose of
this information will be to highlight, through an easy-to-read format, certain trends in the situation
financial of the companies with respect to which the trust invests or acquires titles representing
their share capital.
On the other hand, those factors that significantly affect the comparability of the data presented in the table of
selected financial information, such as changes in accounting, relevant changes in the situation
financial of the companies with respect to which the trust invests or acquires titles representing
their share capital, must be briefly mentioned, or if applicable, indicate the section where they are explained.
Likewise, it must be explained or indicate the section where those factors
or uncertain events that could make the information presented not indicative of future performance are explained.
In the event that it is considered relevant for the understanding of the business, selected quarterly financial information must be provided, corresponding to the last reported period.
e) Critical accounting estimates, provisions or reserves
See Annex N, fraction II, subsection C), item 3), subsection e), in relation to the trust.
- RESPONSIBLE PERSONS
Include the name and position of the persons who, in accordance with these provisions, must sign the
document, this data must appear at the bottom of the legends that the corresponding article of the
present provisions establish.
- ANNEXES
III. AUDITED FINANCIAL STATEMENTS
Financial statements of the trust, audited by external auditor, in terms of what is provided by the
Article 78 of these provisions.
When the compliance with the obligations regarding the securities that are issued under the
trust, depends totally or partially on the following legal entities, it must be included, regarding
each one of them, the financial statements indicated in Articles 33, fraction I, subsection a), item 3 and 37,
fraction I, subsection a), item 2 of these provisions, as the case may be: settlor, administrator of the
trust estate or promoter of the companies or projects, other third parties obligated with the
trust or the security holders such as
guarantors, guarantors, counterparties in derivative or hedging financial operations,
credit support, among others, or any relevant debtor.
IV. ADDITIONAL INFORMATION
If applicable, the report or opinion of the external auditor, who has carried out any type of verification or
validation on the compliance by the administrator of the trust estate, of policies,
restrictions or requirements regarding the flows from investments, divestments or
acquisitions, as well as regarding the reasonableness and reliability on the evolution of assets, rights or
trust securities.
ANNEX N BIS 5
Instruction for the preparation of the annual report applicable to investment project trust certificates
I.
GENERAL GUIDELINES
This instruction includes the requirements of
annual information disclosure to which
the issuances made by
financial institutions
in their capacity as
trustee must adhere to
maintain their
inscription in the registry.
The annual report must include the information
that is known at the date closest
possible to the
presentation of the same, except in cases where a specific date or period is specified.
In the event that certain requirements are not applicable to the
assets, rights or securities
specific that back the issuance in question, it will not be necessary to present information on that requirement in
particular,
however,
depending
on
the
case,
information
equivalent
must be provided.
Likewise,
if certain
information
required
in any
item
of this
instruction
has
been
included
in another
chapter
of the
annual
report,
it will not be necessary to include it again,
only a reference must be made to the chapter in which it is found.
When the instruments issued by the
financial institution
in its capacity as
trustee are
registered
in the
registry,
and in the
foreign markets in which it trades require the presentation
of a report similar to the one described
in this manual, the
order in which the annual report is presented
can be the same as that of the report presented
in those markets,
provided that all the information that is required
in this instruction is included.
In this last case, a table must be included
indicating the chapters
where the requirements contained in this annex are incorporated.
In the preparation
of the annual report
a clear and easy-to-understand language must always be used, avoiding technical terms or complicated legal formalisms that cannot be
easily understandable for a person who does not have specialized knowledge in the matter in question.
Likewise,
superlative terms and value judgments must be avoided,
however,
if considered
necessary,
they must be adequately justified.
A) Principle of relevance
In addition to the
information explicitly required in the various subsections contained in this instruction,
all relevant information must be provided.
This
principle
must
be taken
into
account
when
determining
the
depth
and
breadth
with which
the various topics established in this instruction must be developed.
It will be the responsibility of the persons who sign the
annual report, to determine what information
is relevant according to the context
of the particular characteristics of each issuer. To determine what
information is relevant, both quantitative and qualitative factors must be taken into account.
The Commission may require the inclusion of information in addition or substitution of the information required
in this instruction when the disclosure of the same to investors is considered necessary.
B) External information sources and
expert declaration
When a report,
statistics or other
information contained
in the
annual report has been
obtained from a
public source
of information,
it must be cited;
and when the information
comes from
an expert,
a declaration
must be included
indicating that said information
has been
included with the consent of the latter.
II. INFORMATION REQUIRED IN THE ANNUAL REPORT
A)
Cover of the annual report
The cover of the annual report must contain the following information:
·
Term and maturity date.
·
If applicable, number of series into which the issuance is divided.
·
If applicable, number of corresponding issuance.
·
Number of trust and data related to the trust contract.
·
Name of the trustee.
·
Settlor (indicate if applicable other figures).
·
Administrator of the trust estate or whoever is entrusted with such functions.
·
Investors with whom there are co-investment agreements.
·
Trust beneficiaries.
·
Indication of any other relevant third party(ies) that receive(s) payments from the trust.
·
Trust assets, rights or securities.
·
Summary of the most relevant characteristics of the assets, rights, projects or goods that
integrate the trust estate.
·
Indication that there is no obligation to pay principal or interest.
·
Rights conferred by the investment project trust certificates.
·
Subordination of the titles, if applicable.
·
Source of distributions.
·
Leverage level.
·
Debt service coverage ratio.
·
Place and form of payment of distributions.
·
Denomination of the common representative of the title holders.
·
Depository.
·
Tax regime.
·
If applicable, appraisal opinion.
·
Specification
of the characteristics
of the titles
in circulation (class,
series,
type,
the name
of the exchanges where they are registered, etc.).
·
Possible acquirers: institutional investors and qualified to give instructions at the desk.
·
The mention that the securities are registered in the registry.
·
The legend referred to in the penultimate paragraph of Article 86 of the Law.
·
The
legend "Annual report
that is presented
in accordance
with the provisions
of a general nature
applicable
to
securities
issuers
and
other
participants
in
the
market"
and
what
period
is
being
presented
(e.g.: year ended December 31, 2014).
B)
Index
On the first page of the annual report, an index of the content
of the same must be incorporated, according to
the following:
- GENERAL INFORMATION
a)
Glossary of terms and definitions
b)
Executive summary
c)
Risk factors
d)
Significant changes to the rights of securities registered in the registry
e)
Destination of funds, if applicable
f)
Public documents
- OPERATION STRUCTURE
a)
Trust estate
i)
Performance of issued securities
ii)
Contracts and agreements
iii)
Judicial, administrative or arbitral proceedings
iv)
Rights
v)
Distributions
b)
Compliance with the business plan and investment calendar and, if applicable, divestments
c)
Valuation
d)
Commissions, costs and expenses of the administrator of the trust estate or whoever is entrusted with such functions
e)
Relevant information of the period
f)
Other third parties obligated with the trust or the security holders, if applicable.
g)
General assemblies of holders
h)
Technical committee
i)
Related-party transactions and conflicts of interest
- THE SETTLOR
a)
History and development of the settlor
b)
Business description
i)
Main activity
ii)
Corporate structure
iii)
Description of its main assets
iv)
Judicial, administrative or arbitral proceedings
v)
Shares representing share capital
vi)
Corporate restructurings, if applicable
c)
Administrators and shareholders
d)
Bylaws and other agreements
e)
Related-party transactions and conflicts of interest
- THE ADMINISTRATOR OF THE TRUST ESTATE OR WHOEVER IS ENTRUSTED WITH
SUCH FUNCTIONS
a)
History and development of the administrator of the trust estate or whoever is entrusted with
such functions
b)
Business description
i)
Main activity
ii)
Human resources
iii)
Corporate structure
iv)
Judicial, administrative or arbitral proceedings
c )
Administrators and shareholders
- FINANCIAL INFORMATION OF THE TRUST
a)
Selected financial information of the companies, projects and/or investment vehicles with respect
to which the trust invests or acquires
titles representing their share capital or has
direct or indirect participation, which are not consolidated in the financial information of the trust
b)
Information on relevant credits
-
RESPONSIBLE PERSONS
-
ANNEXES
a)
Audited financial statements of the trust and Investments (if applicable)
b)
Additional information
C)
Information that the chapters of the annual report must contain
- GENERAL INFORMATION
a)
Glossary of terms and
definitions.
See Annex N, fraction II, subsection C), item 1), subsection a).
b)
Executive summary
An executive summary must be presented on the evolution of the assets, rights or securities
trust, or investment companies or projects
in which the trust invests directly or
indirectly, including a summary of financial information. Likewise, the main
relevant events that occurred during the period reported, mainly related to risk factors, compliance with applicable contracts, judicial, administrative or arbitral proceedings,
relevant participants in the operation such as the settlor, administrator of the trust estate or whoever is entrusted with such functions, relevant debtors and other third parties obligated with
the trust or the security holders, among others.
Likewise, it must contain a description and the main characteristics of the type of companies or projects with respect to which the trust invests or acquires titles representing their share capital or participation, as applicable, directly or indirectly, as well as the financial and economic performance of these.
Additionally, an executive summary of compliance with the business plan and investment calendar and, as applicable, divestments in accordance with which investments in companies or projects in which the Trust invests directly or indirectly, or divestments, have been made.
Likewise, a summary of the main policies of the issuance, as well as regarding the protection of the interests of its holders, must be presented.
c)
Risk Factors
The factors that may significantly affect the performance of the assets, rights or securities entrusted, or companies or projects in which the Trust invests directly or indirectly, in which the trust's equity is invested that serve as the source of payment for the instruments, must be explained.
It is recommended that they be ordered based on the importance they represent for the operation. Likewise, risk factors that could apply to any instrument must not be presented.
In this sense, the information provided must refer to factors such as the following, in the event that such situations arise: that there is no obligation to pay principal or interest, and that these instruments might not have liquidity; detailing the factors that may significantly affect the performance of the assets, rights or securities entrusted, or companies or projects in which the Trust invests directly or indirectly and represent the source of payment for the instruments; a brief explanation regarding the risks inherent to the companies or projects with respect to which the trust will invest or acquire titles representing their share capital and that they do not have the corporate governance regime provided for in the Securities Market Law applicable to listed anonymous companies; risks of the current situation of the trust's equity, concentration in a significant debtor or group of debtors, unseizability of State assets, non-compliance with terms of relevant concessions or contracts and their revocability, risks associated with the assets, rights or securities, significant restrictions in the contracts backing the operation, behavior of assets, rights or securities entrusted, or companies or projects in which the Trust invests directly or indirectly, sources of payment for the issued instruments, difficulty in replacing the administrator of the entrusted assets or to whom such functions are assigned, special terms and conditions applicable to the type of security issued, risks associated with the execution of guarantees or contracted hedges, as well as with the administration and collection of the entrusted assets or rights, lack of opening of accounts in the name of the trustee for the collection of assets, encumbrances or contingencies on the assets, rights or securities, lack of audits performed by an independent expert on the entrusted assets, rights or securities or when the audits have a limited scope.
The declaration by the issuer that the trustee, the settlor or the administrator of the trust's assets or to whom such functions are entrusted, must comply with the leverage level calculated in accordance with what is established in article 7, fraction IX, subsection a), numeral 6.1.; the issuer's declaration that it will comply with the debt service coverage ratio calculated in accordance with what is established in article 7, fraction IX, subsection a), numeral 6.2, of these provisions; the consequences that arise, if any, from non-compliance with the corrective plan; the implications in the rights of the holders of the fiduciary titles upon the assumption of credits, loans or financing and the destination of the resources resulting from the assumption of credits, loans or financing.
The information appearing in this section is presented in an enumerative manner, and is in no case limiting.
The objective of this section is to summarize important factors that can be exposed in greater detail elsewhere in the prospectus.
d)
Significant changes to the rights of securities registered in the registry
See Annex N, fraction II, subsection C), numeral 1, subsection e), with respect to the different series in which the issuance has been made.
e)
Destination of funds, as applicable
In the first annual report presented after the registration of the issuer's securities in the registry, the application that has been made up to that moment of the resources derived from the public offering or from the increase in the number of securities issued must be provided.
In the event that resources remain to be applied, these must be detailed in the next annual reports, until all resources are applied.
In the event that the destination of the funds has varied from that specified in the placement prospectus, an explanation regarding this must be provided.
f)
Public documents
It must be mentioned whether copies of this document will be provided at the investor's request, providing the name, address and telephone number of the person to whom investors should direct themselves to request it. It must also indicate the public information that was delivered to the exchanges and is available to investors, as well as the name, telephone and email of the person responsible at the trustee or, as applicable, the common representative, in charge of attending to investors and analysts.
- STRUCTURE OF THE OPERATION
a)
Trust Assets
The issuer may present the financial information corresponding to this chapter only for the last two fiscal years and the most recent quarter for which information is available.
i)
Performance of issued securities
Provide a breakdown of all payments made to security holders during the reported period, indicating the date, amount paid and the concept for which such payment was made, for each of the concepts provided for in the contracts backing the operation such as: interest, scheduled principal payments and early principal payments.
Likewise, include the formulas and bases for the determination of all payments made to which the previous paragraph refers.
In the case of early payments, indicate the causes that gave rise to such payments.
In the event that during the reported period there had been failures in the timely payment of amounts to any of the security holders for any concept, which had remained unpaid for more than 30 days, detail all these failures indicating for each one: the causes, nature and consequences of the failure, the amount by which the payment should have been made, the date on which it should have been made and, as applicable, the dates and amounts of the payments that have been made subsequently to cover said failure.
Likewise, for each of the series of securities issued, present the outstanding balance, the number of titles in circulation and the nominal value adjusted per title at the beginning and at the end of the period being reported.
ii)
Contracts and agreements
A summary of the trust agreement must be presented, as well as any other relevant contract for the operation, such as administration or operation, assignment, among others, in a format that facilitates its understanding.
Likewise, in this section, the functions and responsibilities of each of the participants in the trust operation for investment in the activities or projects of the companies or for the acquisition of titles representing their share capital must be clearly described.
Likewise, disclose any verbal or written agreement entered into in terms of what is provided in article 64 Bis 1, fraction II, subsection f) and fraction IV of the Securities Market Law.
iii)
Judicial, administrative or arbitral proceedings
Briefly describe any pending legal proceedings against the administrator of the trust's assets or to whom such functions are entrusted, trustee, as well as any other third party that is relevant to the security holders.
Include similar information for any procedure of which there is knowledge and that may be executed by government authorities.
iv)
Rights
Rights conferred by fiduciary stock certificates of investment projects, specifying, as applicable, those that correspond to the certificates issued in series that grant holders limited voting rights.
v)
Distributions
In the event of issuance through series that limit the exercise of the rights of the holders referred to in these provisions, the mechanisms that ensure the payment of distributions preferentially to the holders of said series.
b)
Compliance with the business plan, analysis and investment calendar and, as applicable, divestments
Information regarding the degree of compliance with the business plan, the investment calendar and, as applicable, divestments, as well as the expected performance, must be presented, explaining, as applicable, the reasons for total or partial non-compliance.
c)
Valuation
Information regarding the valuations that have been made on the fiduciary title during the period being reported must be presented.
d)
Commissions, costs and expenses of the administrator of the trust's assets or to whom such functions are entrusted
A report on the commissions, costs and expenses paid to the administrator of the trust's assets or to whom such functions are entrusted, during the reported period, as well as the concepts for which they were paid, must be presented. On the other hand, modifications to the compensation and commission schemes of the administrator of the trust's assets or to whom such functions are entrusted must be disclosed.
Likewise, disclose the amount charged by the Trust as conventional penalties, payments for damages and losses.
e)
Relevant information of the period
In the event that there are relevant changes in information reported previously, relating to the topics mentioned below, in an enumerative but not limiting manner, an explanation of the change in question must be included, as well as indicating the document in which the information being modified was last revealed and its date of presentation to the exchanges and the investing public:
· Factors that may significantly affect the performance of the assets, rights or securities entrusted, or companies or projects in which the Trust invests directly or indirectly and represent the source of payment for the instruments. Regarding this, the information disclosure requirements described in Annex N, fraction II, subsection C), numeral 1), subsection c) must be considered.
· Terms and conditions of the trust agreement or any other relevant contract for the operation, such as administration or operation, assignment, or co-investment agreements among others.
· Modifications to the investment regime and investment guidelines.
· Regarding any parallel vehicle that invests in the same projects as the issuer trust or investor with whom there is a co-investment agreement, changes in policies or criteria of participation to which these will be subject and any minimum and maximum limits on their participation. As well as changes in their payment schemes.
· Changes in the policies, procedures and evaluations with which it has, in order to evaluate the characteristics of the investment projects in which it intends to invest. As applicable, describe if such evaluations allow the administrator, at least:
-
Analyze the characteristics of the investments.
-
Know the risks inherent to the investments.
-
The scheme for the payment of income or returns generated by the investments, and
-
Determine that the operation is consistent with the trust's investment policies.
· Any relevant non-compliance with what is established in the contracts referred to in the previous paragraph; in this sense, in the event that there is no relevant non-compliance, a mention to this effect must be made.
· Pending legal proceedings against the administrator of the trust's assets or to whom such functions are entrusted, trustee, investor with whom there are co-investment agreements, as well as any other third party that is relevant to the security holders or procedures that may be executed by government authorities.
· Legal processes that have ended during the period covered by the report, revealing the date of termination and a description of the final result. The foregoing, understanding that a legal process only needs to be revealed in the reports corresponding to the period in which it has become relevant and in subsequent reports only if there have been significant changes.
· Information on relevant debtors to evaluate their credit risk, when the fulfillment of the trust's obligations depends totally or partially on a single debtor or debtors.
· Name of the administrator of the trust's assets or to whom such functions are entrusted, rights or securities entrusted, or companies or projects in which the Trust invests directly or indirectly, as well as investors with whom there are co-investment agreements and their form of organization.
· Information about the administrator of the trust's assets or to whom such functions are entrusted such as the following: their experience as an administrator and the procedures they use when performing the administration functions for the type of assets, rights or securities entrusted, such as collection systems, distribution of flows from assets, subcontracting of services, systems for generating reports, among others; size, composition and growth of all assets, rights or securities that they administer or operate and that are similar to those that make up the trust's equity; relevant changes in the last three fiscal years to their policies or procedures applicable to the administration or operation activities that will be carried out for the type of assets, rights or securities entrusted. In the event that the trust has a master administrator, the administration structure, functions and responsibilities of each of the participants in said structure, as well as the name and percentage of the portfolio administered by each of the primary administrators.
· Terms and conditions of the obligations of other third parties obligated with the trust or the security holders such as investors with whom there are co-investment agreements, guarantees, guarantors, counterparties in derivative or hedging financial operations, credit support, among others, as well as the form and/or procedures to make them enforceable.
Additionally, a summary of the relevant events that, in terms of what is provided in articles 35 Bis and 50, fractions VII to X, and the penultimate paragraph of these provisions, has been transmitted to the stock exchange in question, for dissemination to the investing public, during the fiscal year being reported and up to the date of presentation of this annual report, must be included.
f)
Other third parties obligated with the trust or the security holders, as applicable
When there are other third parties obligated with the trust or the security holders such as investors with whom there are co-investment agreements, guarantees, guarantors, counterparties in derivative or hedging financial operations, credit support, among others, and in the placement prospectus of the securities information regarding said third parties had been included, an update of that information regarding each third party in question must be included, to evaluate their credit risk, to the extent considered relevant.
g)
General meetings of holders
If any matter has been submitted to the vote of the security holders during the period covered by the report, through any appropriate means, provide the following information:
i) The date of the assembly.
ii) If in said assembly it was decided on the designation of members of the technical committee, the name of each of these, as well as any ratification made.
iii) A brief description of any matter submitted to vote during the assembly as well as the number of votes for each resolution, for or against.
iv) A description of the terms of any agreement taken between the settlor and any other participant.
h)
Technical committee
If any matter has been submitted to the vote of the members of the Technical Committee during the period covered by the report, through any appropriate means, provide the following information:
i) Dates of the Committees.
ii) If in said committees it was decided on:
iii) The evaluation of the performance of the administrator or anyone to whom such functions are entrusted
iv) A brief description of any matter submitted to vote during the Technical Committee sessions as well as the number of votes for each resolution, for or against.
v) A description of the terms of any agreement taken between the settlor and any other participant.
i)
Transactions with related parties and conflicts of interest
Disclose if there are conflicts of interest between the administrator and investors.
Describe, as applicable, any relevant transaction or credit that has been carried out in the last 2 fiscal years and up to the date of presentation of this report, between the trustee, settlor, the administrator or anyone to whom such functions are entrusted, rights or securities entrusted, relevant debtors, investors with whom there are co-investment agreements, investors or any other third party that is relevant to the security holders, indicating if they were carried out under market conditions, including the projects or investments to be made that could imply some conflict of interest between the administrator and the investors. As applicable, changes in policies and guidelines to avoid the existence of conflicts of interest must be included, which must consider the scope of the relationships between the different participants in the trust and the investors therein.
Disclose modifications to the mechanisms to reveal to the investor relevant information that will NOT be public.
Likewise, any relevant business relationship, agreements or conventions between said persons must be indicated, even if they are not directly related to the securities issued by the trust and the structure of the transaction.
Additionally, any other transaction that, in terms of the International Financial Reporting Standards "International Financial Reporting Standards" issued by the International Accounting Standards Board "International Accounting Standards Board", is considered as related party transactions, must be included.
- THE SETTLOR
Information corresponding to this subsection may be presented only for the last two fiscal years and the most recent quarter for which information is available.
a)
History and development of the settlor
See Annex N, fraction II, subsection C), numeral 2), subsection a), with respect to the settlor, considering that information related to changes in the products and services offered may be omitted.
b)
Business description
See Annex N, fraction II, subsection C), numeral 2), subsection b), with respect to the settlor.
c)
Administrators and shareholders
See Annex N, fraction II, subsection C), numeral 4), subsection c), with respect to the settlor.
d)
Bylaws and other agreements
See Annex N, fraction II, subsection C), numeral 4), subsection d), with respect to the settlor.
e)
External auditors
See Annex N, fraction II, subsection C), numeral 4), subsection a), with respect to the settlor.
Additionally, mention the auditor independence requirements referred to in article 83, fraction VII, subsections b), c), f) and h) and fraction X of these provisions.
f)
Transactions with related parties and conflicts of interest
See Annex N, fraction II, subsection C), numeral 4), subsection b), with respect to the settlor.
- THE ADMINISTRATOR OF THE TRUST'S ASSETS OR TO WHOM SUCH FUNCTIONS ARE ENTRUSTED
a)
History and development of the administrator of the trust's assets or to whom such functions are entrusted
See Annex N, fraction II, subsection C), numeral 2), subsection a), with respect to the administrator of the trust's assets or to whom such functions are entrusted.
b)
Business description
See Annex N, fraction II, subsection C), numeral 2), subsection b), with respect to the settlor.
c)
Administrators and shareholders
See Annex N, fraction II, subsection C), numeral 4), subsection c), with respect to the settlor.
- FINANCIAL INFORMATION
a)
Selected financial information of the projects in which it invests directly or indirectly, which are not consolidated in the trust's financial information
Selected financial information in comparative columns for the last 2 fiscal years or those that are
available depending on the time in which the investment or acquisition of securities representing the social capital of companies was made.
This information shall be provided for a longer period when considered relevant information.
The purpose of this information will be to highlight, through an easy-to-read format, certain trends in the financial situation of the projects with respect to which the trust invests.
On the other hand, those factors that significantly affect the comparability of the data presented in the selected financial information table shall be briefly mentioned, or, where applicable, the section where they are explained shall be indicated, such as changes in accounting, relevant changes in the financial situation of the projects with respect to which the trust invests.
Likewise, it shall be explained or the section indicated where those factors or uncertain events are explained that could make the information presented not indicative of future performance.
If considered relevant for the understanding of the business, selected quarterly financial information corresponding to the last reported period shall be provided.
b) Report on relevant credits
A report of the relevant credits, loans, or financings or contingencies and their priority in payment shall be provided, including those credits or debts of a fiscal nature.
At least those credits that represent 10% or more of the total liabilities of the issuer's consolidated financial statements as of the last fiscal year shall be included.
Likewise, it shall be indicated whether the issuer is current in the payment of principal and interest of the aforementioned credits.
With respect to the aforementioned relevant credits, loans, or financings, a summary of the obligations to do or not do that the issuers are subject to under said credits shall be included.
Additionally, any additional benefit or agreement, as well as causes for early maturity, granted to any credit, loan, or financing shall be disclosed.
- RESPONSIBLE PERSONS
Include the name, position, and institution represented by the persons who, in accordance with these provisions, must sign the document; these data must appear at the foot of the legends established for this purpose.
- APPENDICES
a) Audited financial statements
Financial statements of the trust, audited by an external auditor, as provided for in Article 78 of these provisions.
When the compliance with obligations related to the securities issued under the trust depends totally or partially on the following legal entities, the financial statements indicated in Articles 33, fraction I, subsection a), numeral 3, and 37, fraction I, subsection a), numeral 2 of these provisions shall be included, as applicable, with respect to each of them: settlor, administrator of the trust estate or whoever is entrusted with such functions, other third parties obligated with the trust or the holders of the securities such as guarantors, counterparties in financial derivative or hedging operations, credit support, among others, or any relevant debtor.
Financial information of investments that are not consolidated and represent 10% or more of the Trust's equity.
b) Additional information
Where applicable, the report or opinion of the external auditor, who would have carried out any type of verification or validation regarding compliance by the administrator of the trust estate or whoever is entrusted with such functions, with policies, restrictions, or requirements regarding flows from investments, divestments, or acquisitions, as well as regarding the reasonableness and reliability of the evolution of trust assets, rights, or securities.
ANNEX AA
Methodologies for the calculation of the debt level or leverage ratio, and the debt service coverage index, applicable to fiduciary securities for development, real estate, investment in energy and infrastructure, or investment projects
I. METHODOLOGY FOR CALCULATING THE DEBT LEVEL OR LEVERAGE RATIO
a) Regarding real estate fiduciary securities or investment in energy and infrastructure:
Where:
Financing:
The aggregate amount corresponding to any credit, loan, or financing by virtue of which the issuer becomes obligated to pay, charged to the trust estate, the principal and, where applicable, the financial accessories of the resources received.
Bureau Debt:
The value of securities in circulation issued by the issuer, representing a liability charged to the trust estate, other than fiduciary securities for development or real estate.
Total Assets:
The sum of all asset items that form part of the issuer's statement of financial position.
b) Regarding fiduciary securities for development, real estate, or investment projects in which the trust's equity is intended to be predominantly allocated to granting credits, loans, or financings and additionally intends to contract credits or loans: 1
Total Assets: To the sum of (i) all asset items that form part of the issuer's statement of financial position.
Equity Securities: To the book value corresponding to real estate, development, or investment in energy and infrastructure fiduciary securities issued as of the closing date of the corresponding quarter.
II. METHODOLOGY FOR CALCULATING THE DEBT SERVICE COVERAGE INDEX
a) Regarding real estate fiduciary securities and investment in energy and infrastructure:
Where:
ICD t = Debt service coverage index at the close of quarter t.
AL 0 = Liquid assets at the close of quarter 0 (that is, at the close of the quarter being reported), including cash and securities investments, but not restricted cash.
IVA t = Value Added Tax (VAT) to be recovered in the estimated recovery quarter t.
UO t = Estimated Operating Profit after payment of scheduled distributions and any other distribution for quarter t.
LR 0 = Revolving Credit Lines in force, irrevocable, and undrawn at the close of quarter 0.
I t = Estimated interest amortizations derived from financing for quarter t.
P t = Scheduled principal amortizations of financing for quarter t.
K t = Estimated recurring capital expenditures for quarter t.
D t = Estimated non-discretionary development expenses for quarter t.
Regarding real estate fiduciary securities whose investment is made predominantly in securities or rights of any type on real estate, the provisions relating to IVA t and D t shall not apply.
b) Regarding fiduciary securities for development and investment projects:
Where:
ICD t = Debt service coverage index at the close of quarter t.
AL 0 = Liquid assets at the close of quarter 0 (that is, at the close of the quarter being reported), including cash and securities investments, but not restricted cash.
UO t = Operating Profit is the interest income from credits granted plus commissions charged minus interest and commissions paid minus, where applicable, the creation of reserves for risk or interest coverage for quarter t.
LR 0 = Revolving Credit Lines in force, irrevocable, and undrawn at the close of quarter 0.
AC t = Capital amortization of credit portfolio.
D t = Distributions for quarter t. (Includes payment of principal of the securities and payments of the return)
P t = Scheduled principal amortizations of financing for quarter t.
The estimates made for the calculation of ICD t must be consistent with the financing, distribution, and operation policies followed by the issuer in the quarter being reported, and be consistent with observed market levels and include verifiable operational assumptions.
The calculation of the amounts corresponding to assets, financing, and other figures related to the different variables mentioned in this annex shall be determined considering their recognized or disclosed value, as applicable, in the consolidated financial information at the close of the quarter, in accordance with the International Financial Reporting Standards "International Financial Reporting Standards" issued by the International Accounting Standards Board "International Accounting Standards Board" applicable to the issuer.
In the document you are viewing, there may be text, characters, or objects that do not display correctly due to conversion to HTML format, so we recommend always taking the digitized image of the DOF or the PDF file of the edition as a reference. The content, form, and scope of published documents are the strict responsibility of their issuer.
CONSULT
BY DATE
Do Mo Tu We Th Fr Sa
INDICATORS
Exchange Rate and Rates as of 01/09/2026
DOLLAR 17.0147 UDIS 8.811040 TIIE 28 DAYS 6.7659% TIIE 91 DAYS 6.8033% TIIE 182 DAYS 6.8577% TIIE OF FUNDING 6.51%
See more
SURVEYS
Did you like the new look of the Official Gazette of the Federation website?
No Yes
Official Gazette of the Federation
Río Amazonas No. 62, Col. Cuauhtémoc, C.P. 06500, Mexico City Tel. (55) 5093-3200, where you can access our menu of services
Electronic address: dof.gob.mx
113
LEGAL NOTICE | SOME RIGHTS RESERVED © 2026
More like this from SHCP
SHCP published 20 documents in the last 30 days. We email you each new one the day it's published.