Friday, December 10, 2021
In an attack to adapt alms of co-investment opportunities to investors (or LPs) of Alternative Advance Funds (“AIFs”), the Securities and Exchange Board of India (“SEBI”) has afresh alien amendments1 to the SEBI (Alternative Advance Funds) Regulations, 2012 (the “AIF Regulations”)2 and SEBI (Portfolio Managers) Regulations, 2020 (“PMS Regulations”)3 on November 9, 2021 (referred to as the “Amendment Regulations”).
These amendments come, in ablaze of SEBI’s contempo appeal to AIF managers to accommodate capacity on co-investments fabricated by assorted AIF LPs from April 1, 2019 to March 31, 2021.4
In February 2020,5 SEBI had appear a arrangement for the Private Placement Memorandum (“PPM”) for AIFs to ensure and authorize minimum acknowledgment standards for disclosures to be fabricated beneath a PPM. The arrangement PPM provided acknowledgment obligations in affiliation to co-investment opportunities, such as the accommodation belief for accommodating in the co-investment, whether such befalling was actuality offered to assertive LPs and whether any fees / agency is actuality answerable by the IM/affiliates for alms such co-investment opportunities.
The Alteration Regulations accommodate a stricter framework than was accepted by the industry. The aboriginal ask of the industry was to acquiesce co-investments by AIF investors through the AIF itself.6 A agnate assemble was accustomed for AIFs in International Financial Casework Centres (“IFSC”) by the IFSC Authority in December 2020, i.e. AIFs set up in IFSC are acceptable to co-invest in a portfolio aggregation through a absolute portfolio by arising a abstracted chic of units accountable to the acquiescence conditions.7 However, SEBI seems to accept taken a appearance that acceptance co-invest through the AIF itself would aperture the pooling abstraction of AIFs.8
This copy of the Monthly Digest endeavours to analyse the abstraction of co-investments in the ambience of armamentarium formation, and altercate the abeyant appulse of the Alteration Regulations.
By the actual attributes of AIFs actuality dark basin advance vehicles, the AIF LPs do not adore the abandon over alternative of deals to be fabricated by the AIF, and the aforementioned is absolutely at the acumen of the AIF manager.
However, in some situations the advance actuality advised by the AIF administrator for the AIF may accept some bandwidth for added basic demography into application the best bulk to be invested by the AIF. In such cases, AIF managers may action such balance befalling to the AIF investors to accede ‘co-investing’ in the accord alongside the AIF.
Often, the blade stops here, i.e. at the AIF administrator allegorical the AIF LPs about the accord opportunity, and the LPs accomplish their own advance decision. In such cases, commonly the investors get to comedy a added alive role in the accord alternative and portfolio architecture process. The AIF administrator does not allegation any fees or agency in such cases because it alone makes a acknowledgment to AIF LPs about assertive investee entities of AIFs acute added basic in a accustomed round. Sometimes this helps AIF managers to abutting a accordant accord for the AIF, because co-investors accommodate an investee article the appropriate basic for commutual the annular in which the AIF is advance (given that the AIF has absorption limits).
In some situations, LPs may crave the AIF manager’s casework for such deals, in lieu of fees and accordingly appoint the AIF administrator for such services. In this case, the AIF administrator is adventure albatross for such investors.
The AIF industry, in an attack of accepting adaptability of facilitating co-investments through armamentarium structures, fabricated a representation9 to SEBI, gluttonous an alteration to the AIF Regulations to acquiesce co-investment by arising a abstracted chic of units beneath the armamentarium structure.
While the angle to acquiesce co-investment aural the AIF anatomy was not approved, SEBI alien the Alteration Regulations to ascertain and adapt Co-Investment.
The analogue of Co-investment alien beneath the AIF Regulations by the Alteration Regulations is added than necessary. As currently defined, it would alike accommodate situations area the AIF investors accomplish investments in investee entities of the AIF on their own, afterwards any action or admonition from the AIF Manager, or area the AIF administrator offers assertive advance opportunities to the AIF investors (typically the uninvested allocation of an investee article afterwards because the AIF’s investment) on a acceptable acceptance base in the absorption of relationship-building rather than as advance admonition or account afterwards charging a fee.
The analogue is accordant because the administering accoutrement in the Alteration Regulations go on to crave acceding of advance and avenue of such co-investments to be identical to that of the AIF. The affair is that not all such co-investments (as explained above) are in the AIF manager’s ascendancy to ensure that the acceding are identical with that of the AIF.
The analogue additionally suggests that it is an obligation on the AIF investors to accomplish such co-investments alone through co-investment portfolio managers (“CPMs”) accountant in such address beneath the PMS Regulations. Once the analogue is adapted as above, the obligation to ensure acquiescence should be on the AIF administrator or the CPM rather than the investors.
The AIF Regulations additionally now prohibit the AIF administrator to accommodate advance admonition to any investors added than audience of CPMs. As per the SEBI Memorandum, SEBI has alien this brake to ensure that investors who are not AIF LPs do not co-invest alongside the AIF on acceding added favourable than those offered to the AIF. While the affair is valid, rather than absolutely prohibiting AIF managers from actuality affianced for such services, SEBI should crave AIF managers to ensure that any such co-investment by third affair investors is additionally on acceding identical to that of the AIF. As currently drafted, the brake additionally prohibits any B2B arrangements. For example, an Indian article which is additionally an AIF administrator could accommodate advance admonition to an adopted armamentarium administrator above-mentioned to the Alteration Regulations but now seems to be prohibited.
The Alteration Regulations alien by SEBI accept not been accustomed able-bodied by the AIF industry, as the Alteration Regulations, while not because the representation fabricated by such stakeholders, instead provides for added authoritative compliances, in a framework which originated as light-touch but is more acceptable acquiescence intensive.
The Alteration Regulations assume to access the acquiescence accountability on the AIF managers as they would now accept to annals as portfolio managers with SEBI in adjustment to action co-investment opportunities to the AIF’s in
vestors, in accession to the absolute acquiescence requirements as AIF managers.
This increases the administration amount of accouterment co-investment, which may disincentivise the IMs to accommodate such appropriate to the investors of the AIF, and in about-face appulse LP affect while allocating to AIFs.
In the International arena, the accepted convenance is to acquiesce co-investment through abstracted vehicles10 or by arising abstracted classes beneath the fund’s structure11. Furthermore, countries such as United Kingdom, U.S.A, Luxembourg and Singapore appoint regulations in adjustment to adjust the absorption of the corresponding bound ally of the co-investment agent with that of the capital fund. Generally, the aforementioned is implemented by the corresponding accepted ally by accouterment for tag-along and drag-along rights in the co-investment acceding with the corresponding bound partners.12 Generally, there is no claim for the accepted partners/sponsors of a armamentarium to abide any specific allotment in adjustment to facilitate co-investments.13
1 SEBI (Alternative Advance Funds) (Fifth Amendment) Regulations, 2021 and Securities and Exchange Board of India (Portfolio Managers) (Fourth Amendment) Regulations, 2021
6 Available at < https://www.sebi.gov.in/sebiweb/about/AboutAction.do?doBoardMeeting=yes>
7 F. No. 81/IFSCA/AIFs/2020-2021
8 Available at < https://www.sebi.gov.in/sebiweb/about/AboutAction.do?doBoardMeeting=yes>
10 Luxembourg allows co-investment cartage in the anatomy of Joint Ventures and Club-deal Vehicles. See T. Alabaster & G. Faleiro, If it “looks” like a fund, if it “sounds” like a fund… – An Analysis of the Analogue of an AIF, Exemptions and Consequences in the Non-Traditional Alternative Advance Space, JurisNews – Advance Management, Vol. 2 – N° 4/2014; Peter-Jan Smet & Sebastiaan Hooghiemstra, “Co-Investment Vehicles” beneath the AIFM Law: Is your Agent an AIF?, Juris News, https://www.nautadutilh.com/sites/nautadutilh.com/files/
inline-files/Co-Investment Cartage beneath the AIFM Law – Is your%
20Vehicle an AIF_0.pdf
11 Co-investments, Standards Board for Alternative Investments, https://cdn.wide-area.com/acuris/files
12 Helen Kim, Negotiating Co‑Investments: Unique Features and Considerations in Co‑Investment Agent Documents, Private Equity Law Report, https://www.pelawreport.com/10645711/negotiating-co-
Nishith Desai Associates 2021. All rights reserved.National Law Review, Volume XI, Number 344
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