SEBI AIF Regulation opens gate for hedge funds and real estate funds

o
0 Comments, Be the first to comment + COMMENT
ADITI JHUNJHUNWALA and NIDHI LADHA | 24/05/2012 05:03 PM |

Barring taxation issues, which are, though, critical, it is now possible to have real estate funds also in operation in India On 21 May 2012 SEBI notified the SEBI (Alternative Investment Funds) Regulations, 2012 [the AIF Regulations] requiring mandatory registration of private collective investment vehicle. This comes on the back of a series of steps Sebi has been taking in this regard. In order to create distinct private pooled investment vehicles and to regulate VCFs, SME Funds, Social Venture Funds and other registered or unregistered investment vehicles under one roof, SEBI came out with the concept paper on Alternative Investment Funds Regulation on August 01, 2011 accompanied by draft regulations called SEBI (AIF) Regulations, 2011. It was observed that VCFs were being used as an omnibus investment fund which leaves most of the private investment funds dissatisfied. Hence there was a need for comprehensive regulation was felt. Registration under VCF Regulations was not mandatory in nature, hence, many unregistered funds were in existence. What are the implications of the new regulations? All AIFs are mandatorily required to get themselves registered with SEBI as per the Regulations. Important question is which all funds are to be treated as AIFs and require registration. Regulation 2 (1) (b) defines Alternative Investment Fund as:

Alternate Investment Fund means any fund established or incorporated in India in the form of a trust or a company or a limited liability partnership or a body corporate which,(i) is a privately pooled investment vehicle which collects funds from investors, whether Indian or foreign, for investing it in accordance with a defined investment policy for the benefit of its investors; and (ii) is not covered under the Securities and Exchange Board of India (Mutual Funds) Regulations, 1996, Securities and Exchange Board of India (Collective Investment Schemes) Regulations, 1999 or any other regulations of the Board to regulate fund management activities The following have been kept out of the purview of the definition of AIF: Family trusts set up for the benefit of relatives as defined under Companies Act, 1956; ESOP Trusts; Employee welfare trusts or gratuity trusts; Holding Companies within the meaning of Section 4 of the Companies Act, 1956; Other special purpose vehicles not established by fund managers, including securitization trusts, regulated under a specific regulatory framework; Funds managed by securitisation company or reconstruction company which is registered with the Reserve Bank of India; and Any such pool of funds which is directly regulated by any other regulator in India. Analysing above, what should be the constituents of a fund to be recognised as an AIF? An AIF can be set up as a company or LLP or trust or a body corporate model. Unincorporated bodies, which are not even allowed by RBI Act, are not allowed to raise funds. The fund should be a private fund engaged in pooling investments from investors. o SEBI vide these Regulations, has made the scope of the word private very liberal and wider.

o Regulation 10(f) restricts a maximum number of investor in AIF to 1000. Hence, a private fund shall be having a large base of investors which may go up to a thousand. Interestingly, the limit on number of investors is not for the AIF, but for a scheme of AIF. Another feature of AIF is that it should be pooling investments. The simple meaning of pooling is collecting money from a group of investors to invest further for a mutual benefit. So, any fund raising money privately for further investment can be treated as AIF subject to fulfillment of other conditions. Funds should be an investment vehicle. Funds to be passively engaged in investments in prescribed areas/companies. The essential meaning of investment is outlay of money with an objective of generating a rate of return, other than by carrying on a substantive activity. In other words, persons putting in money in the fund do not get management rights in investee and do not participate actively in day to day affairs of the investee. It should not be in nature of a mutual fund registered under SEBI (Mutual Fund) Regulations, 1996. It should not be registered under SEBI (Collective Investment Schemes) Regulations, 1999. The difference between a CIS covered by the CIS Regulations, and AIF Regulations will be that the former may invite public subscriptions, while the latter may only privately source their money. It is not regulated by any other SEBI regulations regulating fund management activities. Exception provided in proviso (v) carves out another important feature of the Fund. The exception applies to all SPVs not regulated by fund managers and are regulated by specific regulatory framework. In other way round, a fund managing its investments regularly i.e. a fund engaged in regular buying and selling of investments shall be treated as an AIF. Fund management, thus, becomes another essential characteristic of an AIF. Territorial scope of the Regulations The definition of AIFs under Regulation 2 (1) (b) starts as any fund established or incorporated in India in the form of a trust or a company or a limited liability partnership or a body corporate . Further, Regulation 2(1)(o) defines an investee company as:

any company, special purpose vehicle or limited liability partnership or body corporate in which an Alternative Investment Fund makes an investment As a body corporate includes a company registered outside India, a careful reading of both the definitions extracted above clarifies that the scope of these Regulations extends to: Funds established in India and investing in India and/or abroad; Funds established abroad and investing in India. Therefore, an entity registered outside India and executing business outside India is not required to get itself registered under these Regulations. Registration Requirement An AIF to compulsorily obtain certificate of registration from SEBI. In case of an existing unregistered fund falling within the definition of AIF, the fund may continue to operate only for a period of six months from the date of these Regulations or where it has applied for registration within such period of six months, till disposal of the application. o SEBI may extend such period of six months to twelve months in some special cases. Existing schemes of existing unregistered funds will be allowed to complete their agreed tenure and shall not be allowed to raise further fund other than commitments already made. Registered Venture Capital Funds [VCFs] continue to be regulated under VCF Regulations until the existing fund or the scheme managed by such fund is wound up. o No new scheme to be launched by such funds after issue of the AIF Regulations. o The existing fund not allowed to increase the targeted corpus note here that corpus has been defined as total amount of committed funds by the investors by way of a written contract or any such document as on a particular date. A clear provision in this regard leaves a way out and it can be interpreted that funds may be raised as per the verbal commitments even after existence of the AIF Regulations. Registrations to be granted category wise

SEBI, after receiving comments on the draft Regulations, notified following categories of AIFs requiring registrations: Category I Alternative Investment Fund o invests in sectors or areas which the government or regulators consider as socially or economically desirable and relevant for the country and have a developmental focus rather than pure business motive. Includes venture capital funds, SME Funds, social venture funds, infrastructure funds. Category II Alternative Investment Fund o which does not fall in Category I and III and which does not undertake leverage or borrowing other than to meet day-to-day operational requirements and cannot engage in derivatives investments. Therefore, such funds are intended to do business with the corpus only and will not be borrowing funds. Category III Alternative Investment Fund o Funds employing diverse or complex trading strategies and may employ leverage including through investment in listed or unlisted derivatives. To earn higher returns by leveraging the investors capital these funds may like to keep the liberty of borrowing Hedge funds, fund of fund, real estate funds are typical examples Regulations are more stringent for this category. Necessary directions are to be issued by SEBI soon Eligibility Conditions [Reg 4] Different eligibility criteria for LLP, Company, Trust or a body corporate have been prescribed. Further, the Regulations also prescribe eligibility criteria for the sponsor or manager of the AIF. The sponsor or manager is required to have a continuing interest in the AIFs of not less than two and half percent of the corpus or five crore rupees, whichever is lower, in the form of investment in the AIFs and such interest shall not be through the waiver of management fees. A continuing interest of five percent or ten crores rupees has been prescribed for Category III AIFs. From where can an AIF pool money?

Instead of adopting a specific approach depending on the type of applicant, the Regulations have laid down blanket investment conditions whereby all categories of AIFs would be subject to certain conditions, the chief being: Funds may be raised, on private placement basis, from Residents, Non Residents and foreign investors o It is important to point out here that eligible investors under FEMA Regulations include VCFs but do not include the AIFs, hence, requiring immediate amendment to this effect. Each scheme of the AIF shall have corpus of at least twenty crore rupees; Minimum investment to be accepted by an investor is one crore rupees; o The directors and the employees of the AIFs and/or managers have been kept out of the purview of the above limit and minimum investment amount for them is twenty five lakh rupees. How can an AIF raise funds? Before raising any fund the AIF is required to file a placement or information memorandum, along with the prescribed fee, with SEBI at least 30 days prior to launch of the scheme giving detailed and material information about the AIF and the manager for comments of SEBI, if any. No such fee is to be paid on filing of memorandum for launch of first scheme. The procedure of filing an information memorandum before raising funds is somewhat similar to that prescribed for companies coming out with public offers. How long an AIF can sustain? Category I and Category II AIFs o Close ended and the tenure of fund or scheme shall be determined at the time of application subject to sub-regulation (2) of this Regulation o Schemes launched by such funds shall have a minimum tenure of three years. o Buy-back not allowed as close-ended in nature o Such AIFs may get themselves listed on a stock exchange after closure of the scheme Category III Alternative Investment Fund may be open ended or close ended.

o Close ended funds may apply for listing. o Open ended funds can buy-back the units issued Extension of the close ended AIF may be permitted up to a further two years subject to approval of two-thirds of the unit holders by value of their investment o In absence of any extension/further extension, the AIF is to fully liquidate within one year following expiration of the fund tenure or extended tenure Where an AIF can invest? All AIFs are to decide in advance the investment strategy for the pooled fund and same is to be mentioned in the Placement Memorandum at the time of launching a scheme. Interestingly, an AIF can invest in LLPs too as definition of an investee company includes an LLP. AIFs are allowed to invest in associates subject to approval of seventy five percent of investors; further, Un-invested portion of the corpus may be invested in liquid assets of higher quality till deployment of funds as per the investment objective. Further categorywise investment conditions have been prescribed by the Regulations. Welcomes hedge and real estate funds with open arms The Regulations, now, permit a hedge fund, a real estate fund or a REIT to carry out business in India after registration with SEBI. Previously, REITs were not identified in India, one of the difficulties being absence of transparent tax laws. However, as LLPs can be formed as an AIF, hence business of REITs may be effectively carried out by an LLP model as taxability is only in hands of partners. In absence of pass-through status, AIFs is likely to be taxed at either corporate level, or in representative capacity either of which may not be tax efficient. Barring taxation issues, which are, though, critical, it is now possible to have real estate funds also in operation. The new modest and all in all Regulations posses several other features like investment strategy, disclosure of periodic information to investors, valuation procedure, audit of fund, dispute resolution, winding up of funds etc. to bring greater clarity to the market and the investors and its all-encompassing nature will bring several investment entities that were hitherto unregulated by SEBI.

This constitutes a drastic change and will require investors to adapt themselves to a new and transparent regulatory regime. This change in the regime of funds will also require amendment to exchange control laws, FDI norms and various SEBI Regulations which are yet to be notified. (The authors can be contacted at aditi@vinodkothari.com and nidhiladha@vinodkothari.com)

Welcome AIF Rules!

inShare0
Published on Sat, May 26,2012 | 10:51, Updated at Sat, May 26 at 16:26Source : Moneycontrol.com | Watch Video :

2 rounds of consultations have done the alternative investment fund regulations a world of good. Because the final regulations out this week are being cheered by most in the industry. Since there's nothing to complain about no long whining discussion on AIF. Instead Payaswini Upadhyay lists the top 5 changes that impact domestic fund activity.

'Positive', 'a job well done', 'great effort'- that's how the domestic fund industry is lauding SEBI's Alternative Investment Fund or AIF guidelines.

Under the guidelines, 3 categories have been laid down Category I includes Venture Capital, SME, Social Venture, and Infrastructure Funds

Category II includes those funds that do not fall into Category I and do not undertake leverage or borrowing such as Private Equity, Debt and Fund of Funds and hedge funds or funds that have diverse, complex trading strategies using leverage fall under Category III Depending on the kind of fund and hence the category, funds will get specific incentives and tax pass through.

Prakash Nene Managing Director, Multiples Alternate Asset Management "For the incentive for AIF Category I is for eg there is a new regime which has just come out that when you're investing at a premium in a company, then there could be issues in terms of the premium being treated as income in the hands of the investee company now VCFs are exempt from that. Perhaps they will extend this to AIF 1, they will not do to AIF II. Similarly there is a TDS pass through for the VCF today i.e. income distributed by VCF, you don't have to deduct tax at source. Something like that may not be available to AIF II."

Sidharth Shah Head-Funds Practice, NDA "For other two categories, there is no clarity given in the regulations. For those categories, one would still need to depend on general provisions for taxation of Trust- a specific determinate Trust- and also rely on the famous AIG ruling which basically gives certain principles of pass through. So, for them, till the time clarity is brought in, they will need to rely on those provisions for a pass through."

Inclusion of domestic hedge funds under AIF is the second important change. For these funds, SEBI will provide operational standards, conduct of business rules, prudential requirements, restrictions on redemption and conflict of interest- all this on a case-to-case basis.

Sidharth Shah Head-Funds Practice, NDA "There have been large number of portfolio managers who are keen to bring in strategies- hedge fund strategies in the domestic market but for the lack of

appropriate regulatory framework, they were not able to do so because on one hand they had a Portfolio Manager Regulation which required segregation of accounts and on the other hand, it had mutual fund regulation which is too restrictive for a hedge fund strategy. Recognition of hedge funds as a category under the new regulation will definitely encourage more sophisticated products to be developed by the fund managers."

Challenges in the transition period is the third key aspect of the AIF regulations. SEBI registered funds can achieve their targeted corpus under the old Venture Capital Funds Regulations. The unregistered funds will have to register within 6 months- until then, they cannot raise fresh money

Prakash Nene Managing Director, Multiples Alternate Asset Management "There are few challenges in transition- one of course is that people who want to go into AIF II now because there are no restrictions there but they may not have the minimum size per investor which is what is prescribed as Rs 1 cr- they'll have to go, interact with SEBI to try and get an exemption for this. Then there are certain conditions that have been laid down for AIF II- what kind of trust deed should be there, what kind of private placement memorandum should be there- so if you existing documents have not covered these things, then you'll have to make amendments to the existing documents, go back to SEBI, ask for exemption for some of those stringent conditions. This process may take 3-6months."

A maximum of 1000 investors and minimum Rs 1 crore of investment per investorAIF rules impose this condition on all funds but it may impact real estate funds in particular.

Sidharth Shah Head-Funds Practice, NDA "I think a large number of domestic real estate funds had depended on relatively more retail participation from investors- ranging from Rs 5 lakh to 25 lakh in most cases- and they are the ones who are going to feel the pinch of the new regualtions because suddenly they will not be able to target that HNI segment for which Rs 1cr may still be a significant amount of capital to commit to a single AIF. And that's where their investment strategy may need to change to target ultra-HNI, institutional or even corporate capital."

Ensuring corporate governance and investor protection- the fifth and perhaps the most important aspect of the AIF guidelines. Conflict of interest by sponsor, associated party transactions, extensive disclosures, minimum ticket size- by mandating all of this SEBI has given a fillip to governance and investor interest. And this probably makes the AIF guidelines a regime thats made most stakeholders happy; at least for now.

Alternative Investment Funds

(Sebi had already allowed)

NEW DELHI: Two more entities have received market regulator Sebi's approval to set-up Alternative Investment Funds (AIFs), a newly created class of pooled-in investment vehicles for real estate, private equity and hedge funds. The approval has been given to two AIFs by the Sebi ( Securities and Exchange Board of India) within a period of less than one month, as per the information available with the market regulator. Sebi had already allowed seven AIFs to set up shop in the country. As on August 31, 2012, as many as 20 applications were pending with Sebi for registration as AIFs. The regulator had notified in May this year the guidelines for a new class of market intermediaries named AIFs, which are basically funds established or incorporated in India for the purpose of pooling in of capital from Indian and foreign investors for investing as per a predecided policy.

The two AIFs that have registered with Sebi during September and October are --Real Estate Opportunities Trust and Dicci Trust. Besides, seven AIFs that have registered with Sebi include IFCI Syncamore India Infrastructure Fund, Utthishta Yekum Fund, Indiaquotient Investment Trust, Forefront Alternate Investment Trust, Excedo Realty Fund, Sabre Partners Trust and KKR India Alternate Credit Opportunities Fund. As per Sebi data, most of these applications were filed in August, while some were submitted in July September and October as well. Sebi in August decided that the promoters of listed companies can offload 10 per cent of equity to AIFs such as such as SME Funds, Infrastructure Funds, PE funds and Venture Capital Funds registered with the market regulator to attain minimum 25 per cent public holding. Under Sebi guidelines, AIFs can operate broadly in three categories. The Sebi rules apply to all AIFs, including those operating as private equity funds, real estate funds and hedge funds, among others. The Category-I AIFs are those funds that get incentives from the government, Sebi or other regulators and include Social Venture Funds, Infrastructure Funds, Venture Capital Funds and SME Funds. The Category-III AIFs are those trading with a view to make short-term returns and include hedge funds, among others. The Category-II AIFs can invest anywhere in any combination but are prohibited from raising debt, except for meeting their day-to-day operational requirements. These AIFs include PE funds, debt funds or fund of funds, as also all others falling outside the ambit of two other categories.

20 entities seek SEBI approval to set up Alternative Investment Funds

PTI Sep 23, 2012, 02.55PM IST

Tags:

venture capital| real estate| private equity| market regulator| IIFL| AMC|

Alternative Investment Funds| AIF

NEW DELHI: As many as 20 entities have sought Sebi's approval to set up Alternative Investment Funds (AIFs), a newly created class of pooled-in investment vehicles for real estate, private equity and hedge funds. Sebi (Securities and Exchange Board of India) has already allowed seven AIFs to set shop in the country, all of which got their approvals from the market regulator last month. As per the latest Sebi data, 20 applications were pending with Sebi for registration as AIFs as on August 31, 2012. The regulator had notified in May this year the guidelines for a new class of market intermediaries named AIFs, which are basically funds established or incorporated in India for the purpose of pooling in of capital from Indian and foreign investors for investing as per a predecided policy. Out of the 20 pending applications, Sebi said 15 applications are "being processed", while the regulator has sought further details from five others as they had provided "incomplete information" as on August 31. Most of these applications were filed in August, while some were submitted in June and July as well. Sebi last month decided that the promoters of listed companies can offload 10 per cent of equity to AIFs to attain minimum 25 per cent public holding. Among others, the registration has been sought by CapAleph Indian Millenium Fund, DSP BlackRock, HDFC AMC Real Estate, India Advantage Fund, India Realty Fund, Kedaara Capital, Kotak Alternative Opportunities Fund, Real Estate Opportunities Trust and Start-up Village Fund. Besides, the entities whose applications have "incomplete information" are -- CapAleph Indian Millenium Private Equity Fund, DARC MentorCap Film Fund, IIFL Opportunities Fund, IIFL Private Equity Fund and L&T Infra Investment Partners. Already Sebi-registered AIFs include IFCI Syncamore India Infrastructure Fund, Excedo Realty Fund, Sabre Partners Trust and KKR India Alternate Credit Opportunities Fund. Under Sebi guidelines, AIFs can operate broadly in three categories. The Sebi rules apply to all AIFs, including those operating as private equity funds, real estate funds and hedge funds, among others. The Category-I AIFs are those funds that get incentives from the government, Sebi or other regulators and include Social Venture Funds, Infrastructure Funds, Venture Capital Funds and SME Funds. The Category-III AIFs are those trading with a view to make short-term returns and include hedge funds, among others. The Category-II AIFs can invest anywhere in any combination but are prohibited from raising debt, except for meeting their day-to-day operational requirements. These AIFs include PE funds, debt funds or fund of funds, as also all others falling outside the ambit of two other categories.

Sebi may cap fees charged by investment advisers

PTI Sep 16, 2012, 05.28PM IST

Tags:

sebi| mutual funds| asset management company

(With an aim to crack its whip)

NEW DELHI: With an aim to crack its whip on investment advisers possibly indulging in unfair trade practices, watchdog Sebi is putting in place strict norms for them, including putting a ceiling on fees charged by them. All investment advisers would need to register with Sebi (Securities and Exchange Board of India) after payment of required application and registration fees, while the market regulator eventually wants them to be regulated through an SRO (Self Regulatory Organisation) model. While the proposals have been approved by Sebi's board, they could be soon notified by the market regulator, a senior regulatory official said. As per the proposed norms, the investment advisers would be under strict vigil for any frontrunning, a phrase used in market parlance for trading in stocks based on prior information about trades to be conducted by a fund manager. The regulations follow several instances of certain equity research and investment advisory entities, including some overseas firms, issuing negative reports about Indian stocks and they have been accused of unfairly influencing the share prices and charging huge fees for sharing their reports. To address any conflict of interest, investment advisers would be required to segregate their other businesses from their activity as an investment adviser and disclose all commission and rewards that they receive from their clients. Also, investment advisers may charge fees subject to the ceiling specified by Sebi. They would also have to disclose conflicts of interest arising from any association with a product provider, including any material facts that might compromise its objectivity or independence in carrying investment advisory services. The investment advisers would also have to disclose to the investor its holding or position, if any, in the financial product which is subject matter of recommendation. If any conflicts of interest cannot be avoided, the investment advisers would have to ensure that its clients are fairly treated and they would be barred from divulging any confidential information about their clients. They would also have to abide by a Code of Conduct and conduct risks profiling and risk assessment of the investor. Besides, they would be required to maintain written records relating to investment advisory services for a period of five years and conduct yearly audit in respect of compliance with regulation. Also, they cannot employ any device or scheme to defraud any client or prospective client. Those aspiring to become an investment adviser would need to have an experience of at least five years in activities relating to advice in financial products or fund or asset or portfolio management, besides other educations qualifications. The investment advisers would need a certification on Financial Planning or fund or asset management or investment adviser or any such certification, while existing investment advisers will be given two years time for such certification. Investment advisers who are body corporate shall have a net-worth of not less than Rs 25 lakh, while individuals or partnership firms shall have net tangible assets of not less than Rs 5 lakh. A body corporate offering investment advisory services shall ensure that such activity is segregated from other activities through a separately identifiable department.

Also, advice exclusively on non-securities market which is regulated by sectoral regulators would be outside the scope of Sebi regulations. Advice on the portfolio which contains securities or investment products, however, shall be covered. The Sebi norms would also cover the financial planning service, while representatives of investment adviser which are body corporate and the fund managers who are employees or advisers of mutual funds or asset management company or alternative investment funds are also required to register. A bank which has been permitted by RBI to undertake investment advisory services through a subsidiary or a separate division, would need to seek Sebi registration. Those exempted from the purview of Sebi regulation include a person giving general comments in good faith in regard to trends in the financial or securities market or the economic situation and where such comments do not specify any particular securities or investment product. Investment advice given without any consideration through newspaper or other media forum widely available to the public would also be exempted, while the exemption would also apply to any insurance agent, broker, pension advisers, mutual fund distributors, advocates, solicitors, law firms, chartered accountants, portfolio managers and merchant bankers

Financial advisors must seek RBI nod before approaching for Sebi's approval
Reena Zachariah, ET Bureau Oct 2, 2012, 07.44AM IST

Tags:

sebi| reserve bank of india| IRDA| investment advisors| capital market

(Finance firms that intend)

MUMBAI: Investment advisors are in for tighter regulations. Finance companies that intend to offer investment advisory services will have to first seek approval from the Reserve Bank of India before approaching capital market regulator Sebi's nod for the same. Even existing players like brokerage arms carrying portfolio management services and selling wealth management products will have to obtain permission from the central bank. New norms proposed by Sebi mandates all individuals, body corporate (banks and non-banking finance companies) and partnership firms which are engaged or plan to enter the business of providing investment advice to investors have to be registered and regulated under the Investment Advisors Regulations. "It's a three-stage process for RBI-regulated entities like non-banking finance companies (NBFCs). The first step would be to incorporate; this is done by the Registrar of Companies. Second, they have to obtain a licence to operate as NBFC and for which it must apply to RBI; and thirdly, if an NBFC intends to provide investment advisory services it will likely need permission first from RBI and then from Sebi," said Sandeep Parekh, founder of Finsec Law Advisors. "This would obviate turf wars between financial regulators," he said. Since investment advisory services involve various financial products which are regulated by other regulators, the draft rules were framed after consultation with RBI, Irda and PFRDA. According to Sebi, banks and corporates currently offering distribution, execution or referral services, will have to offer investment advisory services through a subsidiary or a 'separately identifiable division', which will have to be segregated from other activities. The draft rules, which were put up for public comments, had proposed to regulate fund managers of mutual funds and alternative investment funds, but the Sebi board which met on August 16 felt fund managers need not be regulated as they are not in the business of offering this service but are just employees of asset management companies which are already regulated by Sebi. The draft rules also propose that representatives of banks and corporates will be required to be registered with Sebi. But the final rules cleared by the Sebi board only require these entities (providing advice on behalf of banks or corporates) to be certified by industry bodies. Sebi is likely to come out with the final rules on investment advisors within a month.

Financial sector regulators have been working for long on regulating wealth management business of large financial institutions.