June 3, 2025

Advantages of Express LPA Third-Party Beneficiary Provisions for Subscription Credit Facility Lenders

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At A Glance

An express third-party beneficiary provision running in favor of a lender in a fund’s limited partnership agreement (an “LPA”) is helpful for subscription credit facilities. It bolsters the rights and remedies of a subscription credit facility lender (a “Subscription Lender”) by providing it with an independent and direct right to enforce key LPA provisions if the fund borrower defaults under the facility—in particular, rights under the LPA related to calling capital from the fund’s investors, receiving payments, and enforcing LPA remedies against defaulting investors. These protections facilitate a Subscription Lender’s ability to recover payments efficiently and effectively during an enforcement scenario after a facility event of default, thereby mitigating a risk of parties squandering valuable time and resources in lengthy litigation. In this Legal Update, we explain what third-party beneficiary provisions are, why Subscription Lenders seek third-party beneficiary status under LPAs, and how third-party beneficiary rights for Subscription Lenders benefit all parties involved.

Background

Subscription credit facilities are extended to private equity, real estate, or similar investment funds (each, a “Fund”). This type of facility is secured by the capital commitments of the Fund’s investors, the rights of the Fund and its general partner (a “GP”) to call capital from the investors, receive capital contributions, and apply LPA remedies if investors default (collectively, the “Capital Call Rights”), and a collateral account into which capital contributions are required to be funded when called. A core right provided to a Subscription Lender under the facility’s loan documentation is to, in an enforcement scenario, call capital directly from the Fund’s investors to repay the facility without the need to first obtain further consent or cooperation from the Fund or its GP, or commence formal legal proceedings against the Fund, the GP, or the Fund’s investors.

A Fund’s and GP’s Capital...

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