US Fund Managers Raising Capital In Europe: Notifying The Fund For Management And Marketing In The EU – New York Office Snippet

US Fund Managers (USFMs) raising capital in Europe typically establish an unregulated Luxembourg special limited partnership (AIF) as their access for European investors. The AIF can be managed through a Luxembourg host fund manager (AIFM) allowing the AIF to be marketed across the EU.

As the Luxembourg regulator (CSSF) must avail of up-to-date information on the AIFs it manages, the AIFM must notify the CSSF on any new AIFs under management within 10 business days from the date it has formally, or de facto, assumed the management.

In practice, AIFMs typically require that they are formally engaged before they file the notification. The notification form includes details on the delegated portfolio manager (usually the USFM), depositary, transfer agent, and administration agent. Third party AIFMs may hesitate to file a notification when service provider appointments – especially the depositary – are not yet finalised. Most AIFMs, however, typically get comfortable filing based on a letter of intent issued by the service provider pending the finalisation of the service agreement. The ÁIF's constitutional document must be attached to the notification form. As a response to the notification, the CSSF issues an AIF code, typically withing a week. This code is required for the next step: the marketing filing.

Only after the AIF code has been assigned the AIFM may submit a marketing notification with the CSSF specifying the targeted EU countries. That notification must include: a standardised CSSF letter providing details on the AIF, its depositary, its marketing arrangements and a description of information available to investors. The AIF's signed governing documents, an investor disclosure statement, and if available, a private placement memorandum, are attached to the letter. The CSSF also requires evidence of payment for any marketing fees that may apply in certain targeted jurisdictions. Additional requirements may be imposed depending on the specific EU member state where marketing is intended.

Since marketing notifications usually precede the execution of the long-form partnership agreement, the executed initial LPA is provided instead, sometimes together with a near-final draft of the long-form partnership agreement to mitigate the risk of material changes. USFMs should mind that any material changes to the filed documentation may potentially result in a marketing blackout - please see our corresponding snippet.

After receipt of the marketing file, the CSSF processes the notification file and within a maximum of 20 and typically within 10 business days transmits it to the local regulators of the targeted EU countries. Once the AIFM is notified of the transmission, the AIF can be marketed in the relevant countries.

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