The infrastructure sector is a key driver for any economy. Among the many avenues of financing large-scale investments in infrastructure, including mergers and acquisitions, private equity investments and capital raising, setting-up and establishing infrastructure investment trusts (“InvITs”) has begun to gain traction with developers of infrastructure projects, including by public sector undertakings, to enable them to monetise their assets and undertake further infrastructure development. In the last few months, an increasing interest has also been evinced by large private equity firms, development institutions and multilateral and bilateral financial institutions in not only investing in the units of InvITs, but also in setting-up InvITs either on their own or jointly with Indian developers due to the yields offered by InvITs and the favourable and welcome changes to the tax regime applicable to InvITs, including unlisted InvITs.
The regulations and law applicable to InvITs is also evolving, with the growing need for infrastructure and the Governments increased focus on sustained development of infrastructure in India. A few of the recent regulatory developments include investment by various institutional investors in the units of InvITs, the introduction of the regime for unlisted InvITs, induction of sponsors, declassification of a sponsor, change in the eligibility criteria for an investment manager, guidelines on further issuances by listed InvITs.
While the product continues to evolve, it is important to first understand the fundamental structure of an InvIT and the functions, roles and responsibilities of each of the parties to an InvIT as specified under the Securities and Exchange Board of India (Infrastructure Investment Trusts) Regulations, 2014 (the “SEBI InvIT Regulations”).
An InvIT, is a private trust set-up under the Indian Trusts Act, 1882, and registered with SEBI as an InvIT. The key parties to an InvIT include:
The SEBI InvIT Regulations, prescribe, distinctly the roles, responsibilities, and duties of each of the Sponsor, the Trustee, the Investment Manager, and the Project Manager of an InvIT. Some of these key roles, responsibilities, and duties are mentioned below:
The Sponsor of an InvIT is not like the promoter of a company. The role and obligation of a Sponsor of an InvIT is limited to formation of the InvIT and the lock-in restrictions at the time of the InvIT undertaking an initial offer. The roles and obligations of a promoter of a company are ongoing, and not limited to the formation of a company and the lock-in restrictions at the time of undertaking the initial public offering by the company. The promoters of a company have both civil and criminal liability for disclosures in the offer document unlike the sponsor of an InvIT. The role of the promoter includes handling the day-to-day functioning of the company and the liability attached to the same under various laws, including the Companies Act, 2013, whereas the role of the sponsor is limited to sale of the assets to the InvIT.
Until recently, no other unitholder in an InvIT, other than the Sponsor, its associates and related parties were permitted to hold more than 25% of the unit capital of a listed InvIT. SEBI has, in June, 2020, permitted unitholders other than the Sponsor, its associates and related parties to hold 25% or more of the unit capital of a listed InvIT, subject to unitholder approval and certain processes as prescribed. SEBI has also provided for the conditions and process to be followed to declassify any entity as a ‘sponsor’ of an InvIT.
The SEBI InvIT Regulations recognise the importance of the role of the Investment Manager to an InvIT and encourage the Investment Manager to act independently by imposing stricter governance norms on the Investment Manager, including having a majority independent board of directors.
The role of the Investment Manager is analogous to the board of directors of a company and its promoter. The Investment Manager, like a promoter and the board of directors of a company, is responsible for itself and the InvIT in respect of compliance with the SEBI InvIT Regulations and the ongoing disclosures by the InvIT.
Since 2014, India has seen five listed InvITs, one unlisted InvIT and two listed REITs in the market. InvITs have now established themselves not only as an optimum and efficient option for financing the infrastructure sector of the Indian economy, but also an investment option that is seriously being considered by marque domestic and foreign investors. To ensure that the traction and interest in InvITs continues, the Government has encouraged all stakeholders to highlight any practical challenges and provide suggestions that would continue to make InvITs an attractive investment option. Most of these suggestions have been considered favourably, without losing sight of its most important aim – protecting investors’ interest. The Government of India (through various ministries, regulators and SEBI), continues to incentivise infrastructure developers to set-up and establish InvITs, while encouraging participation by investors, including retail investors, in the growth story of India’s infrastructure sector through efficient tax regimes.