Answer for Müssen Fremdfinanzierungen (Kredite) von Portfoliounternehmen, in die ein Private Equity Fonds investiert, in die Grenze zur Kreditaufnahme einbezogen werden?

Zur Beantwortung der Frage nach der Berücksichtigung von Krediten in Zielunternehmen ist das am 09.01.2015 aktualisierte Dokument der esma mit Fragen und Antworten zu AIFMD-Umsetzung hilfreich. Hier werden drei Sachverhalte unterschieden, von denen die Berücksichtigung im Hebel des AIF abhängt. Im Wesentlichen wird dabei auf die Kontrolle durch den AIF und auf die Verpflichtung des AIF, die Kreditfinanzierungen der Portfoliounternehmen tragen zu müssen, abgestellt. However, if the debt at the level of the non-listed companies or issuers exposes the AIF to potential losses beyond its investment in those non-listed companies or issuers, the debt shall be included in the calculation of the exposure of the AIF.”
 
Hier weitere Auszüge aus dem Q&A:
 
Question 1 [last update 21 July 2014]: An AIF that is a private equity fund as referred to in recital 78 of the AIFMD, controls a financial structure that is used to acquire non-listed companies or issuers. The financial structure raises debt to finance the acquisition of those assets. When calculating the exposure of the AIF, shall the AIFM include the debt raised at the level of the financial structure?
Answer 1: According to Article 6(3) of Regulation 231/2013, exposure contained in any financial or legal structures controlled by an AIF shall be included in the calculation of the exposure where those structures are specifically set up to directly or indirectly increase the exposure at the level of the AIF. Therefore, debt raised by such a financial structure to finance the acquisition of as-sets shall be included in the calculation of the exposure where those structures are: (1) specifically set up to directly or indirectly increase the exposure at the level of the AIF and (2) the AIF controls such a structure. If these two conditions are fulfilled, the debt raised by the financial structure is to be included in the calculation of the exposure of the AIF.
Where the AIF does not have to bear losses beyond its investment in a financial structure that is used to acquire non-listed companies or issuers, the financial structure should not be considered as having been set up to directly or indirectly increase the exposure at the level of the AIF. In any case, these structures should not be used as a means to circumvent the provisions of the AIFMD on leverage.
 
Question 2 [last update 21 July 2014]: An AIF controls a financial structure that is used to acquire non-listed companies or issuers. When calculating the exposure of the AIF, shall the AIFM include the debt raised at the level of the non-listed companies or issuers?
Answer 2: No, provided that the AIF does not have to bear potential losses beyond its investment in the non-listed companies or issuers.
However, if the debt at the level of the non-listed companies or issuers exposes the AIF to potential losses beyond its investment in those non-listed companies or issuers, the debt shall be included in the calculation of the exposure of the AIF.
 
Question 3 [date of last update 21 July 2014]: An AIF controls a financial structure that ac-quires non-listed companies or issuers by raising debt. At the time of the acquisition, the non-listed companies or issuers were not leveraged. Subsequently, the non-listed companies or issuers raise debt to finance a dividend distribution enabling the financial structure to reimburse entirely its acquisition debt. When calculating the exposure of the AIF, shall the AIFM include the debt raised at the level of the non-listed companies or issuers?
Answer 3: No, provided that the AIF does not have to bear potential losses beyond its investment in the non-listed companies or issuers.