Current Scope of PE‑Specific Side Letter Provisions: MFN Clauses, Overcall Limitations and Key Person Provisions (Part Three of Three)

A side letter provides a limited partner (LP) with an excellent opportunity to leverage its financial stake in a new private equity (PE) fund by pushing for advantageous terms relative to other LPs. While PE sponsors often have no choice but to engage in – and, in some instances, concede – these negotiations, it is important for them to not lose track of the current market with respect to those terms. See “Peter Tsirigotis of Brown Brothers Harriman Discusses the Operational Challenges Posed by Side Letters” (Feb. 14, 2013). This final article in our three-part series about PE-specific side letter terms details the scope of negotiations around key person provisions and the mechanics of how they are exercised; trends in most favored nation clauses; and limitations on the amounts general partners can call from LPs to cover investment shortfalls. The first article discussed general trends in PE side letters, along with excusal rights and placement agent representations. The second article outlined LP attempts to negotiate limits on the use of parallel funds and alternative investment vehicles, as well as the current state of LP advisory committee and co-investment right negotiations. See “Practical Solutions to Some of the Harder Fiduciary Duty and Other Legal Questions Raised by Side Letters” (Feb. 21, 2013).

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