(1) For the purpose of the grant of certificate to 54[a trust], the Board shall consider all matters relevant to the activities as an InvIT.
(2) Without prejudice to the generality of the foregoing provisions, the Board shall consider the following, mandatory requirements namely,–
(a) the applicant is 55[the sponsor on behalf of the] trust and the instrument of trust is in the form of a deed duly registered in India under the provisions of the Registration Act, 1908;
(b) the trust deed has its main objective as undertaking activity of InvIT in accordance with these regulations and includes responsibilities of the trustee in accordance with regulation 9;
52 Inserted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016.
53 Substituted for the word “applicant” by the Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2018, w.e.f. 10.04.2018.
54 Substituted ibid for the words “an applicant”.
55 Substituted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016. Prior to the substitution it read as the applicant is ‘a’ trust and the instrument of trust is in the form of a deed duly registered in India under the provisions of the Registration Act, 1908;
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(c) persons have been designated as sponsor(s), investment manager and trustee under these regulations and all such persons are separate entities;
(d) with regard to sponsor(s) ,–
(i) 56[each sponsor shall be clearly identified in the application of registration to the Board and in the offer document/ placement memorandum, as applicable];
(ii) each sponsor has,–
(1) a net worth of not less than Rs. 100 crore if it is a body corporate or a company; or
(2) net tangible assets of value not less than Rs 100 crore in case it is a limited liability partnership:57[***]
(iii) Whether the sponsor or its associate has a sound track record in development of infrastructure or fund management in the infrastructure sector.
Explanation.- For the purpose of this clause, ‘sound track record’ means experience of at least 5 years and where the sponsor is a developer, at least two projects of the sponsor have been completed;
(e) with regard to the investment manager,-
(i) the investment manager has a net worth of not less than rupees ten crore if the investment manager is a body corporate or a company or net tangible assets of value not less than ten crore rupees in case the investment manager is a limited liability partnership;
(ii) the investment manager has not less than five years experience in fund management or advisory services or development in the infrastructure sector;
(iii) the investment manager has not less than two employees who have at least five years experience each, in fund management or advisory services or development in the infrastructure sector;
56 Substituted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016. Prior to the substitution it read as ‘there are not more than 3 sponsors’.
57 Omitted “Provided that in case of PPP projects, where the sponsor is the SPV, the net worth or net tangible assets shall be as defined in the eligibility criteria of the project documents;” by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016.
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(iv) the investment manager has not less than one employee who has at least five years experience in the relevant sub-sector(s) in which the InvIT has invested or proposes to invest;
(v) the investment manager has not less than half of its directors in case of a company or members of the governing board in case of an LLP as independent and not directors or members of the governing board 58[of an Investment Manager] of another InvIT;
(vi) the investment manager has an office in India from where the operations pertaining to the InvIT is proposed to be conducted;
(vii) the investment manager has entered into an investment management agreement with the trustee which provides for the responsibilities of the investment manager in accordance with regulation 10;
(f) 59[ the project manager has been identified and shall be appointed in terms of the project implementation/ management agreement:
Provided that the project implementation agreement/ management agreement shall be submitted along with the draft offer document/ or the placement memorandum;
(g) with regard to the trustee,–
(i) the trustee is registered with the Board under Securities and Exchange Board of India (Debenture Trustees) Regulations, 1993 and is not an associate of the sponsor(s) or 60[investment] manager; and
(ii) the trustee has such wherewithal with respect to infrastructure, personnel, etc. to the satisfaction of the Board 58 Inserted by the Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2018, w.e.f. 10.04.2018.
59 Substituted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016. Prior to the substitution it read as the project implementation agreement has been entered into between the project manager, the concessionaire SPV and the trustee acting on behalf of the InvIT which sets out obligations of the project manager with respect to execution of the project:
Provided that in case of PPP projects, such obligations shall be in accordance with the concession agreement or any such agreement entered into with the concessioning authority;
60 Inserted by the Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2018, w.e.f. 10.04.2018.
17 and in accordance with circulars or guidelines as may be specified by the Board;
(h) no unit holder of the InvIT enjoys 61[superior] voting or any other rights over another unit holder 62[and there shall not be multiple classes of units of InvITs:
Notwithstanding the above, subordinate units may be issued only to the sponsors and its associates, where such subordinate units shall carry only inferior voting or any other rights compared to other units;]
(i) 63[***]
(j) the applicant has clearly described at the time of registration, details pertaining to proposed activities of the InvIT;
(k) the 64[InvIT and parties to the InvIT] are fit and proper persons based on the criteria as specified in Schedule II of the Securities and Exchange Board of India (Intermediaries) Regulations, 2008;
(l) whether any previous application for grant of certificate made by the 65[InvIT or the parties to the InvIT or their directors/members of governing board] has been rejected by the Board;
(m) whether any disciplinary action has been taken by the Board or any other regulatory authority against the 66[InvIT or the parties to the InvIT or their directors/members of governing board] under any Act or the regulations or circulars or guidelines made thereunder.
Furnishing of further information, clarification 61 Substituted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016. Prior to the substitution it read as no unit holder of the InvIT enjoys preferential voting or any other rights over another unit holder;
62 Inserted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016.
63 Omitted by Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2016, w.e.f 30.11.2016. Prior to the substitution it read as here shall not be multiple classes of units of InvITs;
64 Substituted for the words “applicant, sponsor(s), investment manager, project manager(s) and trusts” by the Securities and Exchange Board of India (Infrastructure Investment Trusts) (Amendment) Regulations, 2018, w.e.f.
10.04.2018.
65 Substituted for the words “applicant or any related party” by the SEBI (Infrastructure Investment Trusts) (Amendment) Regulations, 2017, w.e.f. 15.12.2017.
66 Substituted ibid for the words “applicant or any related party”.
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