Affiliate Versus Third Party Debate and Other Topics in Transfer Right Provision Negotiations

Because PE funds are closed-end vehicles, limited partners (LPs) are normally precluded from redeeming or exchanging their interests in those funds. As a result, there are few avenues for an LP to leave a PE fund, with the most common being via the transfer right provisions in the fund documents. For decades, those provisions overwhelmingly required general partner (GP) consent for all transfers, but in recent years, LPs have successfully negotiated broader exceptions and rights. This article outlines the current landscape of side letter negotiations between LPs and GPs about transfer rights, including pressure points that dominate those discussions today. Specifically, LPs have made progress at gaining the ability for consent-free transfers to their affiliates – along with an expanded definition of that term where appropriate – while GPs have resisted efforts to extend the same privileges to third-party transfers. See our three-part series on the current scope of PE-specific side letter provisions: “Industry Trends, Excusal Rights and Placement Agent Representations” (Mar. 19, 2019); “Co‑Investment Rights, LP Advisory Committee Seats and Parallel Funds/AIVs” (Mar. 26, 2019); and “MFN Clauses, Overcall Limitations and Key Person Provisions” (Apr. 2, 2019).

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