The Superintendence of the Securities Market adopts mandatory compliance precedent that interprets the scope of the provision that allows securitization trusts to serve as payment guarantees for securities issued by third parties.
The Superintendence of the Securities Market (“SMV”), through Resolution No. 040-2020-SMV/02 (“Resolution”), published in the Official Gazette “El Peruano”, on May 7 of this year, has adopted a mandatory compliance precedent (“Precedent”) with the following scopes:
SMV’s power to request information on securitization trusts, investment funds and other autonomous assets that issue securities by private offering.
(i) The SMV may access the information and documentation of the securitization companies and other entities authorized by the SMV, regarding autonomous assets under its administration, whose securities are the subject of private offer, in order to: (a) monitor that those entities comply with their authorized corporate purpose, (b) determine whether the offer made actually consisted of a private offer; and, (c) for such other purposes that the legislation entrusts to the SMV and within the framework of its powers with respect to the entities it authorizes.
(ii) In the case of the constitution of securitization trusts that support the issuance of private offer securities, it must be sent to the SMV, in addition to the information provided for in article 29 of the Securitization Process Regulations of Assets, adopted by CONASEV Resolution No. 001-1997-EF/94.10 (“Securitization Regulation”), any other that the SMV requires considering what is stated in the Precedent.
Securitization trust structures allowed
(iii) It is legally possible to constitute securitization trusts with structures other than financing or FIBRAS (Securitization Trust for Investment in Real Estate Income), in accordance with the provisions of the respective deed of association and provided that they are authorized from the SMV at under the applicable regulations.
(iv) In the case of trust funds that serve as support for the issuance of public offer securities, the competent body of the SMV, within the framework of the provisions of the Securities Market Act, Single Text Adopted by D.S. No. 093-2002-EF (“LMV”) and in the Securitization Regulation evaluates and authorizes the constitution of the securitization trust.
(v) In all cases, the issuance, either by public offer or private offer, of transferable securities by the securitization company that are backed by the trust funds is essential. Therefore, it is not possible to establish securitization trusts that only support the payment of the rights incorporated in transferable securities issued by third parties.
Therefore, the trusts referred to in number c.2 of article 3 of CONASEV Resolution No. 141-98-EF/94.10 (which in turn refers to the securitization trust provided for in the fourth paragraph of article 314 of the LMV), capable of being used as a guarantee of bond issues for the purposes of compliance with the provisions of article 305 paragraph 1 of the General Companies Act, Law No. 26887, must comply with all the characteristics indicated in the Resolution.
Assets eligible for securitization
(vi) Pursuant to paragraphs a) and b) of article 292 of the LMV, the trust funds may be made up of assets and/or credit assets that in turn may or may not generate periodic flows. When the LMV refers to a guarantee or source of resources, it must be understood that these concepts include not only the first ranking assets that serve to pay for transferable securities issued backed by a certain trust fund, but also other assets that, according to the deed of association, may be used to complete said payment in certain circumstances.
(vii) The value of the assets comprising the trust fund may be greater than the amount to be paid to the holders of the transferable securities backed by a specific trust fund.
(viii) Securitizable assets may support the payment of transferable securities issued by third parties, as established in the deed of association.
The main practical effects of the Precedent would be the following:
• Securitization structures other than financing or FIBRA require authorization from the SMV.
• The securitization trust may only be used as guarantee for an issue of securities provided that securities are issued against it.
The mandatory compliance precedents must be followed by the bodies of the entity that adopts them, as long as they are not amended.
This communication has been prepared by the banking and financial area of Rodrigo, Elías & Medrano Abogados.
