PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT
CALDERWOOD & HARKNESS LLP
Internal Memorandum
Conflicts Clearance Memorandum
Date: September 11, 2023
To: James Prentice, Responsible Partner, Mergers & Acquisitions (Houston Office)
From: Megan Chu, Associate, Mergers & Acquisitions (Houston Office)
Re: New Matter Conflicts Clearance — Representation of Calloway-Briggs Renewables Inc. in Connection with Proposed Joint Venture with Lumen Ridge Infrastructure Partners LLC
Proposed Matter Number: 48172.001
I. Purpose
This memorandum documents the results of the conflicts of interest check conducted in accordance with Calderwood & Harkness LLP's internal conflicts clearance procedures (as set forth in the firm's Ethical Standards & Risk Management Manual, rev. January 2023) in connection with the proposed engagement of the firm by Calloway-Briggs Renewables Inc. ("CBR") to represent CBR in the formation of a 50/50 joint venture with Lumen Ridge Infrastructure Partners LLC ("Lumen Ridge") for the co-development of a portfolio of utility-scale solar projects in the southwestern United States. The conflicts check was initiated upon receipt of a preliminary engagement request from CBR's General Counsel, Rebecca Whitfield, on September 8, 2023, and the search was conducted on September 10–11, 2023 using the firm's proprietary Conflicts System database.
The purpose of this memorandum is to: (a) identify all parties, affiliates, key principals, counterparties, and significant third parties involved in the proposed engagement; (b) report the results of the conflicts search run against each such party; (c) analyze any potential issues identified; and (d) provide a clearance recommendation to the Responsible Partner for purposes of opening the matter.
The engagement is expected to open on or about September 12, 2023, subject to the approval of the Responsible Partner and, if required under firm policy, the Conflicts Committee.
The proposed staffing for this matter is as follows:
• Billing Partner: Sandra Tung, Partner, Mergers & Acquisitions (Houston Office)
• Responsible Partner: James Prentice, Partner, Mergers & Acquisitions (Houston Office)
• Associates: Megan Chu, Associate, Mergers & Acquisitions (Houston Office); Derek Okonkwo, Associate, Mergers & Acquisitions (Houston Office)
• Additional Partners: Leonard Cross, Partner, Tax (New York Office)
Additional team members may be identified as the scope of the engagement develops, and supplemental conflicts checks will be conducted at that time consistent with firm policy.
II. Description of Proposed Engagement
A. Transaction Overview
Calloway-Briggs Renewables Inc. and Lumen Ridge Infrastructure Partners LLC propose to form a Delaware limited liability company under the anticipated name "Solstice Plateau Energy Holdings LLC" (the "JV Entity" or "Solstice Plateau") as a 50/50 joint venture vehicle for the co-development, construction, ownership, and operation of a portfolio of utility-scale solar photovoltaic generation projects. The JV Entity will be organized under the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq.
B. Capitalization and Contributions
The total anticipated equity commitment to the JV Entity is three hundred million dollars ($300,000,000), with each party committing one hundred fifty million dollars ($150,000,000) to be funded at or around closing, subject to customary conditions. The contributions are structured as follows:
CBR's Contribution: CBR will contribute a portfolio of eight utility-scale solar development projects with an aggregate nameplate capacity of approximately 1,200 megawatts (MW), located across the states of Texas, New Mexico, and Arizona, valued for purposes of the transaction at approximately ninety million dollars ($90,000,000), plus sixty million dollars ($60,000,000) in cash, for an aggregate contribution value of $150,000,000.
Lumen Ridge's Contribution: Lumen Ridge will contribute one hundred fifty million dollars ($150,000,000) in cash.
Following the initial capitalization, additional equity calls may be required to fund project-level development costs, construction costs, and working capital needs, in accordance with the terms of the operating agreement to be negotiated between the parties.
C. Scope of Firm's Engagement
Calderwood & Harkness LLP is proposed to serve as CBR's outside counsel for the negotiation, drafting, and documentation of the limited liability company agreement (the "LLC Agreement") governing Solstice Plateau, as well as all ancillary transaction documents, which are anticipated to include, but may not be limited to, the following:
(i) the LLC Agreement of Solstice Plateau Energy Holdings LLC;
(ii) contribution agreements governing the transfer of CBR's project portfolio assets and cash contributions;
(iii) a management services agreement between the JV Entity and CBR (or its designee) governing development-stage management services;
(iv) tax-related structuring documents and any necessary tax opinions (to be led by Leonard Cross, Partner, Tax, New York);
(v) intellectual property license agreements, if any, for CBR proprietary development tools or software to be used by the JV Entity;
(vi) any required consent documentation with CBR's existing stockholders, including Cascadia Growth Equity Fund III, L.P.; and
(vii) such other documents as may be reasonably required in connection with the formation and capitalization of the JV Entity.
The firm will not represent Lumen Ridge, the JV Entity, or any third party in connection with this engagement. This is a single-party representation on behalf of CBR.
D. Counterparty Counsel and Advisors
Lumen Ridge has retained Haverford, Quinn & Steele LLP ("HQS"), a New York-based law firm, as its outside counsel for the transaction. The HQS team is led by Gregory Haverford III (Partner) and Joanna Kline (Senior Associate). The firm anticipates negotiating directly with the HQS team on all material transaction terms.
CBR's financial advisor for the transaction is Ridgeline Barrow & Co., a Houston-based investment bank, led by Marcus Delgado. Lumen Ridge's financial advisor is Whitmore Zanthor Group LLC, a New York-based advisory firm, led by Elena Marchetti.
Additional third-party service providers anticipated to be involved in the transaction are identified and searched as set forth in Section III.I below.
III. Parties and Affiliates Searched
The following parties, affiliates, key principals, and significant third parties were identified in connection with the proposed engagement and were searched through the firm's Conflicts System. For each party, the search included the full legal name, all known variations and aliases, affiliated entities, and (where applicable) employer identification numbers ("EINs"). Individual searches were conducted on all identified key principals associated with each entity. The details of the searches are as follows.
A. Client — Calloway-Briggs Renewables Inc.
Full Legal Name: Calloway-Briggs Renewables Inc.
Entity Type: Texas corporation
Employer Identification Number (EIN): 46-2837451
Texas Secretary of State File Number: 0801647392
Principal Office: 2300 Travis Street, Suite 4200, Houston, Texas 77006
Description: Calloway-Briggs Renewables Inc. is a privately held renewable energy development company founded in 2011 by Margaret "Meg" Calloway and Thomas R. Briggs. CBR specializes in the development of utility-scale solar photovoltaic generation projects across the southwestern United States. The company maintains a development pipeline of approximately 3.8 gigawatts (GW) of solar capacity across Texas, New Mexico, Arizona, and Nevada. For the fiscal year ended December 31, 2022, CBR reported revenues of approximately $412 million and earnings before interest, taxes, depreciation, and amortization ("EBITDA") of approximately $98 million. CBR is the proposed client in this engagement.
Searched Variations: "CBR," "Calloway-Briggs," "Calloway Briggs Renewables," "Calloway-Briggs Renewables," "Calloway Briggs Inc."
B. Key Principals of CBR
The following individuals were identified as key principals of CBR and were each searched individually by full name (and, where applicable, known variations or nicknames) in the Conflicts System:
1. Margaret "Meg" Calloway — Co-Founder, Chairwoman & Chief Executive Officer. Searched as: "Margaret Calloway," "Meg Calloway," "M. Calloway."
2. Thomas R. Briggs — Co-Founder & President. Searched as: "Thomas Briggs," "Thomas R. Briggs," "Tom Briggs," "T.R. Briggs."
3. Priya Narayanan — Chief Financial Officer. Searched as: "Priya Narayanan," "P. Narayanan."
4. Daniel Estrada — Senior Vice President, Corporate Development. Mr. Estrada is anticipated to serve as the initial Chief Executive Officer of the JV Entity (Solstice Plateau). Searched as: "Daniel Estrada," "Dan Estrada," "D. Estrada."
5. Rebecca Whitfield — General Counsel. Ms. Whitfield is the primary point of contact at CBR for purposes of this engagement. Searched as: "Rebecca Whitfield," "R. Whitfield."
C. Counterparty — Lumen Ridge Infrastructure Partners LLC
Full Legal Name: Lumen Ridge Infrastructure Partners LLC
Entity Type: Delaware limited liability company
Employer Identification Number (EIN): 83-1924076
Principal Office: 301 Tresser Boulevard, Suite 1400, Stamford, Connecticut 06901
Description: Lumen Ridge Infrastructure Partners LLC is a dedicated renewable energy infrastructure investment platform formed in 2018. Lumen Ridge has approximately $4.2 billion in assets under management ("AUM") and invests primarily in wind, solar, and battery-storage projects across North America. Lumen Ridge is the counterparty to CBR in the proposed joint venture transaction and is not a client of the firm.
Searched Variations: "Lumen Ridge," "Lumen Ridge Infrastructure," "LRIP," "Lumen Ridge Partners," "Lumen Ridge LLC."
D. Lumen Ridge Capital Advisors LLC (Manager of Lumen Ridge)
Full Legal Name: Lumen Ridge Capital Advisors LLC ("LRCA")
Entity Type: Delaware limited liability company
Principal Office: 301 Tresser Boulevard, Suite 1400, Stamford, Connecticut 06901
Description: LRCA is the management company and registered investment adviser to Lumen Ridge Infrastructure Partners LLC. LRCA provides investment management, portfolio management, and administrative services to Lumen Ridge and its affiliated funds. LRCA was searched as a related entity to the counterparty.
Searched Variations: "LRCA," "Lumen Ridge Capital," "Lumen Ridge Advisors," "Lumen Ridge Capital Advisors."
E. Key Principals of Lumen Ridge / LRCA
The following individuals were identified as key principals of Lumen Ridge and/or LRCA and were each searched individually by full name in the Conflicts System:
1. Nathaniel "Nate" Forsythe — Co-Founder & Managing Partner of Lumen Ridge and LRCA. Searched as: "Nathaniel Forsythe," "Nate Forsythe," "N. Forsythe."
2. Carolyn J. Delaney — Partner & Head of Solar Investments at Lumen Ridge. Searched as: "Carolyn Delaney," "Carolyn J. Delaney," "C. Delaney."
3. Victor Osei — Chief Financial Officer of Lumen Ridge. Mr. Osei is anticipated to serve as the initial Chief Financial Officer of the JV Entity (Solstice Plateau). Searched as: "Victor Osei," "V. Osei."
4. Amanda Prescott — General Counsel & Chief Compliance Officer of Lumen Ridge and LRCA. Searched as: "Amanda Prescott," "A. Prescott."
F. Cascadia Growth Equity Fund III, L.P. (Minority Investor in CBR)
Full Legal Name: Cascadia Growth Equity Fund III, L.P.
Entity Type: Delaware limited partnership
Principal Office: 900 SW Fifth Avenue, Suite 2600, Portland, Oregon 97204
Description: Cascadia Growth Equity Fund III, L.P. ("Cascadia Fund III") is a growth-equity fund that holds an approximately 22% equity stake in CBR. Pursuant to the terms of CBR's existing stockholders' agreement, Cascadia Fund III possesses consent rights over certain material transactions, including the formation of joint ventures involving a commitment in excess of a specified threshold. It is anticipated that Cascadia's consent will be required in connection with the proposed JV formation. Cascadia Fund III is not a party to the proposed JV transaction and is not a client of the firm. However, because of its significant equity position in CBR and its consent rights, Cascadia Fund III was identified as a party warranting a conflicts search.
Key Principal Searched: Owen Charbonneau, Managing Director. Searched as: "Owen Charbonneau," "O. Charbonneau."
Searched Variations: "Cascadia Fund III," "Cascadia Growth Equity," "Cascadia Growth," "Cascadia Growth Equity Fund III," "Cascadia GEF III."
G. Proposed JV Entity — Solstice Plateau Energy Holdings LLC
Anticipated Legal Name: Solstice Plateau Energy Holdings LLC
Entity Type: Not yet formed; anticipated Delaware limited liability company
Description: The JV Entity to be formed by CBR and Lumen Ridge in connection with the proposed transaction. Because the entity has not yet been organized, this search was conducted to determine whether any existing client or adverse party with a similar name exists in the Conflicts System.
Searched Variations: "Solstice Plateau," "Solstice Plateau Energy," "Solstice Plateau Holdings," "Solstice Plateau Energy Holdings."
H. Counterparty's Counsel — Haverford, Quinn & Steele LLP
Full Name: Haverford, Quinn & Steele LLP ("HQS")
Principal Office: 425 Lexington Avenue, 38th Floor, New York, New York 10017
Description: HQS is a nationally recognized law firm serving as Lumen Ridge's outside counsel in the proposed transaction. The firm was searched to confirm that Calderwood & Harkness LLP does not currently represent HQS or any of its attorneys in matters adverse to CBR, and to identify any matters in which the two firms have appeared on the same or opposite sides that could give rise to a conflict or appearance of impropriety.
Key Personnel Searched:
• Gregory Haverford III, Partner. Searched as: "Gregory Haverford," "Gregory Haverford III," "G. Haverford."
• Joanna Kline, Senior Associate. Searched as: "Joanna Kline," "J. Kline."
Searched Variations: "HQS," "Haverford Quinn," "Haverford Quinn & Steele," "Haverford, Quinn & Steele."
I. Other Advisors and Significant Third Parties
The following additional advisors and significant third parties were identified in connection with the proposed transaction and were each searched in the Conflicts System:
1. Ridgeline Barrow & Co. — CBR's financial advisor for the transaction. Principal office: Houston, Texas. Key individual searched: Marcus Delgado. Searched variations: "Ridgeline Barrow," "Ridgeline Barrow & Co," "RB&Co."
2. Whitmore Zanthor Group LLC — Lumen Ridge's financial advisor for the transaction. Principal office: New York, New York. Key individual searched: Elena Marchetti. Searched variations: "Whitmore Zanthor," "WSG," "Whitmore Zanthor Group."
3. Pennington Clarke LLP — Anticipated auditor and tax return preparer for the JV Entity (Solstice Plateau). Key individual searched: Harold Yeung, CPA. Searched variations: "Pennington Clarke," "P&C LLP."
4. Greystone Hamill LLP — CBR's existing independent auditor. Searched variations: "Greystone Hamill," "GH LLP."
5. TerraNova Environmental Sciences Inc. — Environmental consulting firm anticipated to perform Phase I and Phase II environmental site assessments and related diligence in connection with the contributed solar project sites. Key individual searched: Dr. Sharon Kessler. Searched variations: "TerraNova," "TerraNova Environmental," "TerraNova Sciences."
6. Meridian Land Title Company — Title company anticipated to issue title commitments and owner's title insurance policies for the solar project sites. Searched variations: "Meridian Land Title," "Meridian Title."
7. Blackthorn Risk Advisors LLC — Insurance brokerage and risk advisory firm anticipated to advise on insurance coverage for the JV Entity and the contributed projects. Key individual searched: Garrett Yoon. Searched variations: "Blackthorn Risk," "Blackthorn Advisors."
8. Ironclad Mutual Insurance Co. — Insurance carrier anticipated to provide property and casualty insurance coverage for the solar project sites. Searched variations: "Ironclad Mutual," "Ironclad Insurance."
9. Trident National Bank, N.A. — National banking association anticipated to serve as the project-level lender for one or more of the contributed solar projects. Key individual searched: Patricia Henning. Searched variations: "Trident National," "Trident Bank," "Trident National Bank."
10. Continental Fiduciary Trust Company — Anticipated escrow agent for certain closing funds. Searched variations: "Continental Fiduciary," "Continental Trust."
11. Peachtree Corporate Services, Inc. — Anticipated Delaware registered agent for the JV Entity. Searched variations: "Peachtree Corporate," "Peachtree Services."
IV. Conflicts Search Results
Set forth below are the results of the conflicts searches conducted through the firm's Conflicts System for each party, affiliate, individual, and third party identified in Section III above. The searches were conducted on September 10–11, 2023, by Megan Chu (Associate, M&A, Houston) with the assistance of the firm's Conflicts Department. The Conflicts System was queried using the full legal names, all identified variations and aliases, and (where applicable) EINs for each party. The results are organized by party category and are summarized in tabular form in Appendix B.
A. Calloway-Briggs Renewables Inc. and CBR Principals
Calloway-Briggs Renewables Inc.: The search returned no current or prior representation of CBR by the firm in any capacity. Additionally, no current matters were identified in which the firm represents a party adverse to CBR or in which CBR has been identified as an adverse party. CBR is a new client to the firm.
No current adverse representation against CBR was identified. The firm has not previously acted against CBR in any litigation, transactional, regulatory, or advisory matter.
Individual Searches — CBR Key Principals:
• Margaret "Meg" Calloway: No disqualifying matches. The search returned two entries for the surname "Calloway," but both were determined upon review to be unrelated individuals: (i) one Brian P. Calloway, a party in a 2019 commercial landlord-tenant dispute (Matter No. 31204.002, closed), and (ii) one Jessica Calloway, an HR representative for a former client in a labor and employment matter (Matter No. 28976.001, closed 2017). Neither individual has any familial or business connection to Margaret Calloway. No disqualifying conflict.
• Thomas R. Briggs: No disqualifying matches. The search returned several entries for the common surname "Briggs," including references to (i) a Thomas Briggs who was a witness in a 2016 insurance coverage dispute (Matter No. 26531.003, closed), and (ii) a Briggs Industrial Supply Co., a party in a contract dispute (Matter No. 34821.001, closed 2020). Both were confirmed upon review to be unrelated to Thomas R. Briggs, Co-Founder of CBR. No disqualifying conflict.
• Priya Narayanan: No disqualifying matches. One entry for "Narayanan" was returned — a Suresh Narayanan who was a defendant in a securities fraud action in which the firm represented a different party (Matter No. 33017.001, closed 2021). Confirmed unrelated. No disqualifying conflict.
• Daniel Estrada: No disqualifying matches. Two entries for "Estrada" were returned, both confirmed upon review to be unrelated individuals. No disqualifying conflict.
• Rebecca Whitfield: No disqualifying matches. No entries returned for the name "Whitfield" in the Conflicts System. No disqualifying conflict.
B. Lumen Ridge Infrastructure Partners LLC and LRCA
Lumen Ridge Infrastructure Partners LLC: The search returned no current representation of Lumen Ridge by the firm. No current matters were identified in which the firm represents a party adverse to Lumen Ridge, and Lumen Ridge has not been identified as a party (adverse or otherwise) in any current or historical matter in the firm's database.
Lumen Ridge Capital Advisors LLC: The search returned no current representation of LRCA by the firm. No current matters were identified in which the firm represents a party adverse to LRCA. No prior engagements involving LRCA were identified.
No current adverse representation against Lumen Ridge or LRCA was identified.
Individual Searches — Lumen Ridge / LRCA Key Principals:
• Nathaniel "Nate" Forsythe: No disqualifying matches. One entry for "Forsythe" was returned — a Catherine Forsythe who served as a board member of a former firm client in a 2018 corporate governance matter (Matter No. 30189.001, closed). Confirmed unrelated. No disqualifying conflict.
• Carolyn J. Delaney: No disqualifying matches. The surname "Delaney" returned three entries, all confirmed upon review to be unrelated individuals in closed matters. No disqualifying conflict.
• Victor Osei: No disqualifying matches. No entries returned for the name "Osei" in the Conflicts System. No disqualifying conflict.
• Amanda Prescott: No disqualifying matches. One entry for "Prescott" was returned — a Robert Prescott, a party in a real estate dispute (Matter No. 29644.002, closed 2019). Confirmed unrelated. No disqualifying conflict.
C. Cascadia Growth Equity Fund III, L.P.
Cascadia Growth Equity Fund III, L.P.: The search returned no current representation of Cascadia Fund III by the firm. No current matters were identified in which the firm represents a party adverse to Cascadia Fund III. Additionally, no historical engagements involving Cascadia Fund III (or any Cascadia-affiliated fund) were identified in the Conflicts System.
No current adverse representation against Cascadia Fund III was identified.
Owen Charbonneau: No disqualifying matches. No entries were returned for the name "Charbonneau" in the Conflicts System. No disqualifying conflict.
It is noted that Cascadia Fund III is not a counterparty to the proposed transaction. Rather, it is a minority investor in the client (CBR) whose consent is required under CBR's existing stockholders' agreement for material transactions, including the formation of the proposed joint venture. The absence of any representation of or adverse engagement against Cascadia Fund III confirms that no conflict arises from Cascadia's position as a consent-holder. This issue is discussed further in Section V.B below.
D. Haverford, Quinn & Steele LLP
Haverford, Quinn & Steele LLP: The search returned no current engagement in which Calderwood & Harkness LLP and HQS serve as co-counsel in a manner that would create a conflict of interest with respect to the proposed engagement. A review of the firm's matter database identified three historical matters in which attorneys of Calderwood & Harkness LLP and attorneys of HQS appeared on the same side as co-counsel for different parties in the same transaction: (i) Matter No. 37429.001 (2021, closed — a syndicated loan facility for a healthcare company, in which the two firms represented different lenders in the syndicate); (ii) Matter No. 39102.001 (2022, closed — a multi-party asset acquisition in which the firms represented different sellers); and (iii) Matter No. 41876.001 (2022, closed — a joint venture formation in the midstream energy sector, in which the firms represented different members of a consortium). None of these prior co-counsel relationships involved either CBR or Lumen Ridge, and none created any ongoing obligations that would be implicated by the proposed engagement.
Additionally, one matter was identified in which the firms appeared on opposite sides: Matter No. 35617.001 (2020, closed — a purchase price adjustment dispute in a post-closing arbitration). That matter was resolved by settlement and involved parties unrelated to CBR or Lumen Ridge. No disqualifying issue arises.
Individual Searches — HQS Key Personnel:
• Gregory Haverford III: No disqualifying matches. One entry for "Haverford" was returned — a reference to the firm name Haverford, Quinn & Steele LLP, as described above. No individual conflict.
• Joanna Kline: No disqualifying matches. The surname "Kline" returned two entries, both confirmed upon review to be unrelated individuals. No disqualifying conflict.
E. Third-Party Advisors and Service Providers
Ridgeline Barrow & Co. / Marcus Delgado: No disqualifying conflicts identified. No current or prior representations involving Ridgeline Barrow & Co. were found in the Conflicts System. No entries were returned for Marcus Delgado.
Whitmore Zanthor Group LLC / Elena Marchetti: No disqualifying conflicts identified. No current or prior representations involving Whitmore Zanthor Group LLC were found. No entries were returned for Elena Marchetti.
Pennington Clarke LLP / Harold Yeung: No disqualifying conflicts identified. No current or prior representations involving Pennington Clarke LLP were found. No entries were returned for Harold Yeung.
Greystone Hamill LLP: No disqualifying conflicts identified. The search returned one entry for "Greystone Hamill" — the firm was identified as the auditor for a former client in a closed 2020 matter (Matter No. 36048.001). The representation was unrelated to CBR or Lumen Ridge, and the matter is closed. No disqualifying conflict.
TerraNova Environmental Sciences Inc. / Dr. Sharon Kessler: No disqualifying conflicts identified. No current or prior representations involving TerraNova Environmental Sciences Inc. were found. No entries were returned for Dr. Sharon Kessler.
Meridian Land Title Company: No disqualifying conflicts identified. The search returned two entries for "Meridian Land Title" — both references to the company serving as title agent in prior real estate transactions handled by the firm on behalf of other clients (Matter Nos. 32174.001 and 38915.001, both closed). These prior engagements are routine third-party title agent roles and do not create any conflict. No disqualifying conflict.
Blackthorn Risk Advisors LLC / Garrett Yoon: No disqualifying conflicts identified. No current or prior representations involving Blackthorn Risk Advisors LLC were found. No entries were returned for Garrett Yoon.
Ironclad Mutual Insurance Co.: No disqualifying conflicts identified. The search returned one entry for "Ironclad Mutual" — the company was identified as an insurer in a 2019 coverage dispute (Matter No. 33821.002, closed) in which the firm represented a policyholder. That matter is closed, the parties are unrelated to CBR or Lumen Ridge, and the firm does not currently represent any party adverse to Ironclad Mutual. No disqualifying conflict.
Trident National Bank, N.A. / Patricia Henning: The search returned multiple entries for "Trident National Bank," which is a large national commercial banking institution with which the firm has had various interactions. Specifically, the Conflicts System identified the following current matters involving Trident National Bank:
(i) Matter No. 44218.001 — Representation of Trident National Bank as lender in a $175 million term loan facility for an unrelated borrower in the commercial real estate sector (active; Billing Partner: William Chen, Banking & Finance, New York).
(ii) Matter No. 45692.001 — Representation of a borrower (Clearwater Logistics Holdings Inc.) in a revolving credit facility in which Trident National Bank is one of several syndicate lenders (active; Billing Partner: Marianne Sutherland, Banking & Finance, Houston).
(iii) Matter No. 46801.001 — Representation of Trident National Bank in connection with regulatory advice on Bank Secrecy Act compliance matters (active; Billing Partner: Harold Nakamura, Financial Regulation, Washington, D.C.).
Each of these matters was reviewed carefully. None of the current representations involving Trident National Bank are adverse to CBR or Lumen Ridge. Matter No. 44218.001 and Matter No. 46801.001 involve the firm's representation of Trident Bank itself, but in matters wholly unrelated to the proposed CBR/Lumen Ridge joint venture transaction. Matter No. 45692.001 involves the firm's representation of a party on the opposite side of a credit facility from Trident Bank, but the matter is unrelated to CBR, Lumen Ridge, or the solar project portfolio. In the proposed engagement, Trident National Bank is anticipated to serve as a project-level lender for one or more of the solar projects being contributed to the JV Entity. The firm's role in the proposed engagement does not include representation of or against Trident National Bank in any lending capacity; rather, Trident Bank is a third-party service provider to the transaction. Accordingly, no disqualifying conflict has been identified.
No entries were returned for Patricia Henning.
Continental Fiduciary Trust Company: No disqualifying conflicts identified. No current or prior representations involving Continental Fiduciary Trust Company were found in the Conflicts System.
Peachtree Corporate Services, Inc.: No disqualifying conflicts identified. The search returned one entry for "Peachtree Corporate Services" — the company was identified as the Delaware registered agent for an entity formed in connection with a prior firm matter (Matter No. 40231.001, closed 2022). This is a routine registered-agent role and does not give rise to any conflict. No disqualifying conflict.
F. Proposed JV Entity — Solstice Plateau Energy Holdings LLC
Solstice Plateau Energy Holdings LLC: The search returned no matches in the Conflicts System. This is expected, as the JV Entity has not yet been formed. No existing client or adverse party with the name "Solstice Plateau" or any similar variation was identified. No disqualifying conflict.
V. Analysis of Potential Issues
While the conflicts search described in Section IV above did not identify any disqualifying conflicts of interest, the following issues merit discussion and documentation for purposes of the Responsible Partner's review.
A. Scope of Representation — Single-Party Representation
As set forth in Section II.C above, the firm has been asked to represent CBR only in connection with the proposed joint venture formation. The firm will not represent Lumen Ridge, the JV Entity (Solstice Plateau), Cascadia Fund III, or any other party. This is a single-party representation.
Lumen Ridge is the counterparty to CBR in the proposed transaction. The firm will negotiate against HQS on Lumen Ridge's behalf with respect to the terms of the LLC Agreement and ancillary transaction documents. Accordingly, the relevant conflicts inquiry is whether the firm has any current relationship with Lumen Ridge that would impair the firm's ability to represent CBR zealously in negotiations adverse to Lumen Ridge. As set forth in Section IV.B, no such relationship exists.
The JV Entity (Solstice Plateau Energy Holdings LLC) will be a new entity jointly owned by CBR and Lumen Ridge. Upon formation, the JV Entity will have its own legal identity and interests that may, in certain circumstances, diverge from those of its individual members. It is important to confirm at the outset that the firm does not represent, and will not be deemed to represent, the JV Entity. The engagement letter to be sent to CBR should clearly delineate the scope of representation as limited to CBR and should expressly disclaim any attorney-client relationship with Lumen Ridge, the JV Entity, or any other party to the transaction. This disclaimer should be reinforced in the firm's communications throughout the engagement.
If, at any point following the formation of the JV Entity, the JV Entity requires independent legal counsel (for example, in connection with operational matters, third-party disputes, or regulatory compliance), such counsel should be engaged separately and should not be Calderwood & Harkness LLP absent a separate conflicts check and engagement.
B. Cascadia Growth Equity Fund III — Consent Holder
Cascadia Fund III holds an approximately 22% equity stake in CBR and possesses consent rights over material transactions under the terms of CBR's existing stockholders' agreement. It is anticipated that the formation of the proposed joint venture with Lumen Ridge will trigger Cascadia's consent rights. As a minority investor in CBR with contractual veto power over the transaction, Cascadia's interests and those of CBR may not be perfectly aligned in all respects. For example, Cascadia may seek to condition its consent on certain protections (e.g., anti-dilution provisions, minimum return thresholds, information rights with respect to the JV Entity) that may require negotiation between CBR and Cascadia.
The firm does not represent Cascadia Fund III and has not been asked to do so. No conflicts search results implicate any prior or current relationship with Cascadia. However, because the firm's work on the JV formation may involve preparing or reviewing consent documentation that Cascadia will be asked to execute, the firm should take care to ensure that:
(i) The firm does not provide legal advice to Cascadia Fund III or Owen Charbonneau in connection with the consent process or any other matter;
(ii) The firm recommends that Cascadia obtain independent counsel to review the consent documentation and advise Cascadia on its rights under the stockholders' agreement;
(iii) All communications with Cascadia are channeled through CBR's General Counsel (Rebecca Whitfield) or as otherwise directed by CBR; and
(iv) The engagement letter clearly states that the firm does not represent Cascadia and that Cascadia should seek independent legal counsel.
No conflict has been identified with respect to Cascadia's role as a consent holder, but the foregoing precautions are recommended as a matter of best practice.
C. Trident National Bank, N.A.
As discussed in Section IV.E above, the firm has identified three active matters involving Trident National Bank, N.A. in its Conflicts System. Trident National Bank is a large national commercial bank, and it is not uncommon for the firm to have multiple ongoing engagements involving Trident in various capacities (as lender, counterparty, or client) across different practice groups and offices.
In the proposed engagement, Trident National Bank is anticipated to serve as the project-level lender for one or more of the solar projects being contributed by CBR to the JV Entity. The firm's role in the proposed engagement is to represent CBR in the negotiation and documentation of the JV formation; the firm is not being asked to represent CBR in negotiations with Trident National Bank regarding any lending arrangements, nor is the firm being asked to represent Trident National Bank in any capacity in connection with this transaction. Trident's role is that of a third-party service provider.
The three active matters involving Trident National Bank were reviewed as follows:
• Matter No. 44218.001: The firm represents Trident as lender in an unrelated commercial real estate loan. This representation is not adverse to CBR and does not involve the solar energy sector or any party related to the proposed JV. No conflict.
• Matter No. 45692.001: The firm represents a borrower in a revolving credit facility where Trident is a syndicate lender. While the firm is technically on the opposite side of the table from Trident in that matter, the engagement is wholly unrelated to CBR, Lumen Ridge, or the proposed JV, and it does not involve any of the same parties, projects, or subject matter. No conflict.
• Matter No. 46801.001: The firm represents Trident in a regulatory compliance advisory matter. This is a non-adversarial advisory engagement unrelated to the proposed JV transaction. No conflict.
None of these existing representations create a disqualifying conflict with respect to the proposed engagement. The matters are unrelated in subject matter, parties, and geography, and the firm's role in the proposed engagement does not involve any direct representation of or adversity to Trident National Bank. However, if the scope of the engagement expands to include negotiation of project-level loan agreements with Trident National Bank on behalf of CBR (or the JV Entity), a supplemental conflicts analysis should be conducted at that time.
D. Ongoing Monitoring
It is recommended that this matter be flagged in the Conflicts System for ongoing conflicts monitoring throughout the duration of the engagement. As the transaction progresses through the diligence, negotiation, and documentation phases, additional parties are expected to be identified, including but not limited to:
• Engineering, procurement, and construction ("EPC") contractors for the solar projects;
• Power purchase agreement ("PPA") counterparties (including utilities and corporate offtakers);
• Additional project-level lenders and tax equity investors;
• Interconnection counterparties and transmission providers;
• Land lessors and surface rights holders;
• Local and state regulatory bodies with permitting authority; and
• Any additional investors or co-investment participants that may be introduced during the transaction process.
As each such party is identified, a supplemental conflicts check should be promptly conducted and documented. The results of any supplemental check should be appended to this memorandum or filed separately in the matter file with a cross-reference notation.
Additionally, the anticipated staffing of this matter may expand as the engagement proceeds. Any new attorneys or other timekeepers assigned to the matter should be checked for individual conflicts in accordance with firm policy.
VI. Conclusion and Clearance Recommendation
Based on the comprehensive search of the firm's Conflicts System conducted on September 10–11, 2023, and the analysis set forth in Sections IV and V above, no disqualifying conflicts of interest have been identified in connection with the proposed representation of Calloway-Briggs Renewables Inc. in the formation of a joint venture with Lumen Ridge Infrastructure Partners LLC.
The proposed engagement involves the representation of a single party (CBR) in a negotiated joint venture transaction. The counterparty (Lumen Ridge) and its affiliates are not current or former clients of the firm, and no existing firm representations create an adverse interest with respect to Lumen Ridge, CBR, or any other party to the transaction. The minor issues identified in Section V — namely, the scope-of-representation considerations, the role of Cascadia Fund III as a consent holder, and the existence of unrelated active matters involving Trident National Bank — have been analyzed and do not rise to the level of disqualifying conflicts. Appropriate safeguards have been recommended with respect to each issue.
Accordingly, the engagement is cleared for opening under the following parameters:
Matter Number: 48172.001
Client: Calloway-Briggs Renewables Inc.