PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
MATTER CLOSING MEMORANDUM
Matter No. 1026-00001
CALDERWOOD & HARKNESS LLP 425 Lexington Avenue New York, NY 10017
INTERNAL MEMORANDUM — PRIVILEGED & CONFIDENTIAL
This memorandum constitutes attorney work product and is protected by the attorney-client privilege and the work product doctrine. It is intended solely for internal use by the attorneys and professional staff of Calderwood & Harkness LLP involved in this matter. This memorandum should not be disclosed to any third party without the prior written consent of the Responsible Partner.
Date: April 5, 2024
To: File — Matter No. 1026-00001
From: Pamela Cross, Responsible Partner, Funds & Asset Management
Re: Matter Closing Memorandum — Briarwood Family Office LLC / Meridian Peak Capital Partners Fund IV, L.P. — Side-Letter Negotiation
Matter Number: 1026-00001
Status: CLOSED — TERMINATED
1. Purpose
This memorandum documents the formal closing and termination of Matter No. 1026-00001 and is prepared in accordance with Calderwood & Harkness LLP's matter closing policies and procedures. The purpose of this memorandum is to create a comprehensive record of the work performed, the status of all documents and deliverables, the financial summary of the engagement, and the circumstances surrounding the termination of the matter, so that the firm's files may be properly closed and archived.
The matter involved the representation of Briarwood Family Office LLC ("BFO") in the negotiation of a side letter in connection with a proposed Seventy-Five Million Dollar ($75,000,000) limited partnership commitment to Meridian Peak Capital Partners Fund IV, L.P. ("Fund IV" or the "Fund"), a Delaware limited partnership managed by Meridian Peak Capital Advisors LLC ("MPCA" or the "Sponsor"). Calderwood & Harkness LLP ("C&H" or the "Firm") was retained to review the Fund's offering and governing documents, advise BFO on the terms thereof, negotiate a side letter containing customized economic, governance, and reporting provisions on BFO's behalf, and review and mark up the subscription documents in anticipation of the commitment.
On April 2, 2024, BFO's investment committee reconvened and voted to decline the proposed commitment to Fund IV. On April 3, 2024, Sandra M. Whitfield, General Counsel of BFO, notified the undersigned of BFO's decision and instructed C&H to transmit a formal withdrawal letter to counsel for the Fund's general partner and to the Sponsor. On April 4, 2024, the undersigned transmitted such withdrawal letter, confirming that all draft side-letter provisions had lapsed without execution, that no subscription agreement had been executed, and that no capital commitment had been made by BFO to Fund IV.
As a consequence of BFO's decision, all draft side-letter provisions — including, without limitation, the most favored nation rights, excuse and exclusion rights, management fee concessions, co-investment rights, enhanced reporting obligations, key person enhancements, transfer rights, confidentiality carve-outs, tax reporting commitments, and placement fee offset provisions that had been the subject of negotiation over the preceding approximately ten weeks — lapsed and are of no further force or effect. No subscription agreement was executed, and no capital commitment of any kind was made by BFO to Fund IV or to any affiliated vehicle.
This matter is hereby closed effective as of the date hereof.
2. Client Information
Client: Briarwood Family Office LLC
Entity Type: Delaware limited liability company
Principal Business Address: 780 Park Avenue, Suite 3200, New York, NY 10021
Registered Agent: Capitol Registered Agents Inc., 1209 Orange Street, Wilmington, Delaware 19801
Employer Identification Number (EIN): 27-4831956
Assets Under Management: Approximately $1.8 billion (as of December 31, 2023, per information provided by BFO)
Primary Contacts:
• Julian R. Hargrove — Managing Director & Chief Investment Officer. Mr. Hargrove serves as the principal decision-maker for BFO's investment activities and holds a veto right over all investment committee determinations. He was the ultimate authority on the proposed commitment to Fund IV and participated in strategic discussions regarding the scope and priority of side-letter negotiations.
• Sandra M. Whitfield — General Counsel. Ms. Whitfield served as BFO's primary point of contact with C&H throughout the engagement. She executed the engagement letter on behalf of BFO on January 24, 2024, and communicated BFO's instructions, feedback, and ultimate decision to decline the commitment. All formal communications between C&H and BFO were directed through Ms. Whitfield.
• Derek T. Calloway — Director of External Investments. Mr. Calloway was responsible for BFO's evaluation of the Fund IV opportunity from an investment and due diligence perspective. He participated in the four-party conference call on March 11, 2024 and provided input on the commercial terms of the side letter, including fee economics and co-investment structuring.
• Renata Vasquez — Investment Analyst. Ms. Vasquez supported Mr. Calloway in the due diligence process and served as a secondary contact for document production and information requests.
Client Background: BFO is a single-family office established in 2007 for the purpose of managing the wealth of the Hargrove family. The Hargrove family's wealth was principally derived from commercial real estate development activities in the northeastern United States, including the development and management of office, mixed-use, and multifamily properties across the greater New York metropolitan area and New England. BFO's investment strategy encompasses four primary verticals: (i) direct real estate investments, (ii) real estate credit strategies, (iii) private equity, and (iv) liquid alternatives. BFO typically allocates between fifteen percent (15%) and twenty percent (20%) of its total assets under management to third-party managed funds, with a preference for commingled vehicles managed by established sponsors with demonstrated track records. The proposed commitment to Fund IV fell within this allocation strategy and was consistent with BFO's historical appetite for institutional-quality real estate private equity vehicles.
3. Counterparty and Fund Information
3.1 Fund Sponsor
Name: Meridian Peak Capital Advisors LLC ("MPCA")
Entity Type: Delaware limited liability company
Employer Identification Number (EIN): 45-3297104
Principal Office: 200 Clarendon Street, 42nd Floor, Boston, Massachusetts 02116
Registered Agent: Beacon Statutory Services LLC, 1013 Centre Road, Wilmington, Delaware 19805
Co-Founders:
• Conrad J. Ellsworth — Managing Partner & Chief Executive Officer
• Priya Narayan — Managing Partner & Chief Investment Officer
Firm Overview: MPCA was founded in 2011 and operates as a mid-market private equity firm focused on value-add and opportunistic real estate investments, real estate operating companies, and asset-management platform acquisitions across North America. Since its founding, MPCA has raised and managed three prior funds (Meridian Peak Capital Partners Fund I, L.P.; Meridian Peak Capital Partners Fund II, L.P.; and Meridian Peak Capital Partners Fund III, L.P.), which in the aggregate have attracted approximately $3.2 billion in limited partner commitments. MPCA's investment team is based primarily in Boston, with additional professionals in New York and Los Angeles. Mr. Ellsworth and Ms. Narayan serve as the key persons for Fund IV, and their continued involvement was a significant focus of the side-letter negotiation as described in Section 5.2 of this memorandum.
3.2 General Partner
Name: Meridian Peak Capital Partners GP IV LLC (the "General Partner" or "GP")
Entity Type: Delaware limited liability company
Employer Identification Number (EIN): 92-1672483
Sole Member: Meridian Peak Capital Advisors LLC
Registered Agent: Beacon Statutory Services LLC, 1013 Centre Road, Wilmington, Delaware 19805
The General Partner was formed as a special-purpose vehicle for the sole purpose of serving as the general partner of Fund IV. As a wholly owned subsidiary of MPCA, the General Partner is controlled by Messrs. Ellsworth and Narayan in their capacity as the managing members of MPCA. The General Partner has no independent operations, employees, or assets apart from its interest in Fund IV.
3.3 The Fund
Name: Meridian Peak Capital Partners Fund IV, L.P. ("Fund IV" or the "Fund")
Entity Type: Delaware limited partnership
Employer Identification Number (EIN): 92-1684537
Delaware LP Certificate Number: LP-2023-08841
Key Economic and Structural Terms:
Offering Documents and Regulatory Filings:
• Confidential Private Placement Memorandum ("PPM") dated December 15, 2023
• Amended and Restated Agreement of Limited Partnership ("LPA") dated December 20, 2023
• Form D Notice of Exempt Offering of Securities filed with the U.S. Securities and Exchange Commission on January 2, 2024
Closing Schedule:
• Anticipated First Close: April 30, 2024
• Final Close Deadline: October 31, 2024
It is noted for the record that as of the date of this memorandum, Fund IV's first close had not yet occurred, and the fundraising process was ongoing. BFO will not be participating in the first close or any subsequent close.
3.4 Key Third Parties
The following third parties were involved in the Fund IV fundraising process or in the side-letter negotiation:
GP's Counsel:
Ashford Crane & Hewitt LLP 1 Federal Street, Suite 3600 Boston, Massachusetts 02110
• Harrison K. Drummond — Partner. Mr. Drummond served as the lead counsel for the General Partner and MPCA in the side-letter negotiation and was C&H's primary counterpart for all legal discussions and document exchanges.
• Elaine C. Woodbury — Senior Associate. Ms. Woodbury supported Mr. Drummond and handled the day-to-day document production, markup revisions, and coordination of the negotiation process.
Placement Agent:
Pinnacle Capital Markets LLC 399 Park Avenue, 18th Floor New York, New York 10022
• Roland S. Abernathy — Managing Director. Mr. Abernathy was responsible for introducing BFO to the Fund IV opportunity and coordinating initial diligence materials. The placement agent engagement letter was dated November 1, 2023, and provided for a 1.0% placement fee on capital commitments sourced through Pinnacle. The treatment of this placement fee (specifically, 100% offset against management fees) was a significant point in the side-letter negotiation.
Fund Administrator:
Granite Ledger Fund Services LLC 100 Summer Street, Suite 2700 Boston, Massachusetts 02110
• Catherine J. Halloran — Primary Contact. Granite Ledger was engaged to provide fund accounting, investor services, and NAV calculation services for Fund IV.
Fund Auditor:
Brockton Marsh & Associates LLP 500 Boylston Street, 30th Floor Boston, Massachusetts 02116
• Neil A. Strickland — Audit Partner. Brockton Marsh was engaged as Fund IV's independent auditor.
4. Calderwood & Harkness Engagement Team
The following C&H attorneys comprised the engagement team for this matter:
Conflict Check: A conflicts check was initiated and cleared on January 22, 2024. The following persons and entities were searched against the firm's conflict database:
• Briarwood Family Office LLC
• Julian R. Hargrove
• Meridian Peak Capital Advisors LLC
• Conrad J. Ellsworth
• Priya Narayan
• Ashford Crane & Hewitt LLP
• Pinnacle Capital Markets LLC
No conflicts were identified. The results of the conflict check are memorialized in the Conflict Check Memorandum dated January 22, 2024, which is maintained in the matter file.
Engagement Letter: The engagement letter was executed on January 24, 2024 by Sandra M. Whitfield, General Counsel, on behalf of Briarwood Family Office LLC. The engagement letter set forth the following key terms:
• Scope of Engagement: Review and analysis of Fund IV's limited partnership agreement and private placement memorandum; negotiation and drafting of a side letter on behalf of BFO in connection with BFO's proposed limited partnership commitment to Fund IV; review and markup of subscription documents; and related advisory work in connection with the proposed investment.
• Fee Arrangement: Hourly billing at the rates set forth above, subject to a soft fee cap of $175,000 for the entirety of the engagement. The soft fee cap was intended to provide BFO with a reasonable expectation of total costs while preserving the firm's ability to bill in excess of the cap in the event of materially expanded scope or unanticipated complications, subject to advance discussion with BFO.
• Payment Terms: Net 30 days from date of invoice.
• Billing Partner: Nicholas Stern was designated as the billing partner for administrative and invoicing purposes, while Pamela Cross served as the responsible partner with overall supervisory authority over the engagement.
The engagement is now terminated, and the engagement letter is no longer in effect except to the extent of surviving provisions relating to confidentiality, document retention, and payment of outstanding invoices.
5. Scope of Work Performed
This section provides a detailed summary of the legal work performed by C&H during the course of the engagement, organized by workstream.
5.1 LPA and PPM Review
C&H received the Fund IV limited partnership agreement, private placement memorandum, and form subscription documents from Ashford Crane & Hewitt LLP on January 26, 2024. Upon receipt, the engagement team undertook a comprehensive review of all documents, with Theresa Kim and Owen Fischer conducting the initial substantive review and Pamela Cross providing senior oversight and strategic direction.
An internal review memorandum was circulated among the engagement team on January 29, 2024, identifying key issues, areas of concern, and potential side-letter negotiation points.
The following deliverables were provided to BFO in connection with the LPA and PPM review:
LPA Review Memorandum — Delivered to BFO on February 2, 2024. This memorandum provided a comprehensive analysis of the Fund IV limited partnership agreement, including detailed discussion of the following topics:
• Fund economics (management fee, carried interest, preferred return, waterfall mechanics, clawback provisions, and organizational expense allocation);
• Investment period and fund term provisions, including extension rights and early termination triggers;
• Key person provisions, including the identity of key persons, the consequences of a key person event, and the mechanism for resumption of the investment period;
• Default remedies and consequences of limited partner default, including forced sale and forfeiture provisions;
• Transfer restrictions applicable to limited partner interests;
• GP removal provisions and the applicable voting thresholds;
• Limited Partner Advisory Committee ("LPAC") composition, appointment mechanics, and scope of LPAC authority;
• Indemnification and exculpation provisions applicable to the General Partner and its affiliates;
• Valuation methodology and NAV determination procedures; and
• Identification of specific provisions for which side-letter modifications were recommended.
PPM Summary & Risk Assessment Memorandum — Delivered to BFO on February 2, 2024. This memorandum summarized the Fund's investment strategy, target markets, investment parameters, risk factors (including leverage, concentration, illiquidity, and market risks), MPCA's historical track record across Funds I through III, and the placement agent disclosure relating to Pinnacle Capital Markets LLC.
Fee & Economics Analysis Memorandum — Delivered to BFO on February 4, 2024. This memorandum provided a quantitative analysis of the Fund IV fee structure as applied to BFO's proposed $75 million commitment, including a comparison of standard terms versus anticipated negotiated terms. The memorandum specifically analyzed the annual and cumulative impact of the proposed management fee reduction, the economics of the placement fee offset, and the carried interest and waterfall mechanics as they would apply to BFO's commitment under various performance scenarios.
5.2 Side-Letter Negotiation
Following delivery of the LPA and PPM review memoranda, the engagement team conducted a side-letter negotiation strategy call with BFO on February 5, 2024. Participants in the call included Pamela Cross and Theresa Kim from C&H, and Sandra Whitfield and Derek Calloway from BFO. During this call, C&H reviewed the key areas identified for side-letter negotiation, discussed BFO's priorities and red lines, and developed a negotiation strategy. A side-letter negotiation strategy memorandum was delivered to BFO on the same date, documenting the agreed-upon approach.
In parallel, Owen Fischer prepared an MFN Provision Comparison Matrix (internal working paper) dated February 5, 2024, which compared most favored nation provisions from side letters in recent comparable fund commitments to provide benchmarking data for the negotiation.
5.2.1 Proposed Side-Letter Terms (as Negotiated but Never Executed)
The following is a comprehensive summary of the side-letter terms that were the subject of negotiation between C&H (on behalf of BFO) and Ashford Crane & Hewitt LLP (on behalf of the GP). It is emphasized that all of the terms described below were contained in draft documents only, were the subject of ongoing negotiation, and lapsed without execution upon BFO's decision to decline the commitment. No side letter was ever executed, and none of the provisions described below have any legal force or effect.
Most Favored Nation ("MFN") Rights:
BFO was to be entitled to elect any economic or governance term granted to any other limited partner committing Fifty Million Dollars ($50,000,000) or more to Fund IV. The MFN right was subject to the following carve-outs:
• Anchor Investor Carve-Out: Terms granted exclusively to limited partners committing Two Hundred Million Dollars ($200,000,000) or more (representing 13.33% of the Fund's target size of $1.5 billion) would be excluded from the MFN universe. This threshold was agreed during the four-party conference call on March 11, 2024.
• Regulatory Accommodations: Terms granted to limited partners solely to accommodate regulatory requirements applicable to ERISA plans, tax-exempt entities, or governmental plans would be excluded from the MFN universe.
• GP Affiliates: Terms granted to affiliates of the General Partner or MPCA would be excluded from the MFN universe.
The General Partner was to deliver a redacted summary of all material side-letter terms to BFO within fifteen (15) business days of the applicable closing at which such side letters were entered into. BFO would then have a period of twenty (20) business days following receipt of such summary to elect to adopt any available MFN terms. (Note: The timing of the GP's delivery obligation — 15 versus 20 business days — remained a bracketed open point as of the last draft exchanged.)
Excuse and Exclusion Rights:
BFO was to have the right to be excused from, or excluded from, participation in certain categories of investments. The excusable investment categories agreed upon by the parties were:
• Cannabis-related assets (including any investment in a portfolio company deriving more than a de minimis portion of its revenue from the cultivation, processing, distribution, or sale of cannabis or cannabis-related products);
• Gaming and casino properties;
• Investments located in, or involving counterparties domiciled in, jurisdictions subject to comprehensive U.S. sanctions administered by the Office of Foreign Assets Control ("OFAC"); and
• Investments that would cause BFO to hold "plan assets" within the meaning of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the regulations promulgated thereunder.
The excuse right was to be exercisable by BFO within fifteen (15) business days of receipt of a capital call notice or investment notice describing the proposed investment.
The aggregate excuse cap — representing the maximum cumulative amount of capital calls from which BFO could be excused — was a significant point of dispute that remained unresolved at the time of termination. The General Partner's position was that the excuse cap should be set at twenty percent (20%) of BFO's commitment, or $15,000,000. C&H, on behalf of BFO, counter-proposed an excuse cap of twenty-five percent (25%) of BFO's commitment, or $18,750,000. The Excuse Rights Analysis Memorandum delivered to BFO on March 6, 2024 recommended maintaining the 25% position, with a fallback authorization to accept a 20% cap if necessary to reach agreement on the overall package of terms.
Management Fee Reduction:
BFO was to receive a reduced management fee as follows:
• During the Investment Period: 1.50% per annum on committed capital (versus the standard LPA rate of 1.75% per annum on committed capital), representing a reduction of 25 basis points.
• Post-Investment Period: 1.25% per annum on invested capital (versus the standard LPA rate of 1.50% per annum on invested capital), representing a reduction of 25 basis points.
Based on BFO's proposed $75,000,000 commitment and the applicable fee bases, the estimated annual savings during the four-year investment period would have been approximately $187,500 per year (i.e., 0.25% × $75,000,000), for cumulative savings of approximately $750,000 over the full investment period. Post-investment period savings would have varied based on the level of invested capital at the applicable measurement dates.
Co-Investment Rights:
BFO was to have a pro rata right to co-invest alongside Fund IV in any transaction in which the aggregate equity investment by Fund IV and its co-investors exceeded One Hundred Million Dollars ($100,000,000). Co-investments were to be offered on a no-management-fee and no-carried-interest basis, and BFO's co-investment allocation was to be calculated based on its pro rata share of total commitments to Fund IV. The co-investment right was non-exclusive, and the General Partner retained discretion over the structuring and timing of co-investment opportunities.
Enhanced Reporting:
The General Partner was to provide BFO with the following enhanced reporting:
• Quarterly portfolio-level reports within forty-five (45) days of the end of each calendar quarter, including a summary of portfolio composition, asset-level performance metrics, and a market commentary;
• Audited annual financial statements within ninety (90) days of the end of each fiscal year; and
• Annual environmental, social, and governance ("ESG") reporting covering Fund IV's portfolio.
Key Person Enhancement:
The side letter was to provide that the departure of either Conrad J. Ellsworth or Priya Narayan from MPCA (whether by resignation, termination, disability, or death) would trigger a ninety (90)-day suspension of the investment period during which BFO could elect to cease participation in future capital calls. This provision enhanced the key person protections set forth in the LPA, which provided for a suspension but did not grant individual limited partners the right to opt out of future capital calls during the suspension period. (Note: The duration of the suspension period was initially proposed by C&H at 90 days, reduced to 60 days in the second draft as a compromise, and ultimately agreed at 90 days during the four-party conference call on March 11, 2024.)
Transfer Rights:
BFO was to have the right to transfer its limited partnership interest in Fund IV to any entity controlled by, or established for the benefit of, any member of the Hargrove family, without the prior consent of the General Partner, subject to compliance with applicable securities laws and tax requirements. This provision was intended to facilitate estate planning and intergenerational wealth transfer for the Hargrove family.
Confidentiality Carve-Outs:
The LPA's confidentiality provisions were to be supplemented with express carve-outs permitting BFO to disclose Fund IV information (including the existence and terms of the side letter and BFO's investment in Fund IV) to:
• BFO's tax, legal, and accounting advisors;
• Members of the Hargrove family; and
• Regulatory or governmental authorities, to the extent required by applicable law or regulation.
Tax Reporting:
The General Partner was to deliver IRS Schedule K-1s to BFO within seventy-five (75) days of the end of each fiscal year, compared to the standard delivery timeline of one hundred twenty (120) days set forth in the LPA. This accelerated delivery was a priority for BFO in light of its internal tax reporting processes. (Note: The K-1 delivery timeline — 75 versus 90 days — remained a bracketed open point as of the last draft exchanged.)
Placement Fee Offset:
One hundred percent (100%) of the placement fee payable to Pinnacle Capital Markets LLC in connection with BFO's commitment was to be offset against management fees payable by BFO. Based on BFO's proposed $75,000,000 commitment and Pinnacle's 1.0% placement fee, the total placement fee would have been $750,000. This amount would have been credited against management fees due from BFO, either as a lump-sum offset at the first management fee payment date or ratably over the first several years of the investment period (the specific mechanics were not yet finalized at the time of termination).
5.2.2 Chronology of Drafts and Markups
The following is a chronological summary of all drafts, markups, and significant communications exchanged between C&H and Ashford Crane & Hewitt LLP during the side-letter negotiation:
Subsequent to the delivery of the Open Points Memorandum, the negotiation was paused at BFO's request pending further investment committee review (as described in Section 6 below), and no further drafts or markups were exchanged.
5.3 Subscription Documents
In parallel with the side-letter negotiation, the engagement team prepared markups of the Fund IV subscription documents in anticipation of BFO's commitment.
Draft Subscription Agreement: Owen Fischer prepared C&H's markup of the Fund IV form Subscription Agreement on March 10, 2024. The markup included BFO-specific representations and warranties (including representations that BFO is a "qualified purchaser" within the meaning of Section 2(a)(51) of the Investment Company Act of 1940, and that BFO is not subject to ERISA or otherwise a "benefit plan investor"), the commitment amount of $75,000,000, and cross-references to the side letter as a supplement to the LPA. The markup was prepared for BFO's review but was never finalized, executed, or submitted to the Fund.
Draft Investor Questionnaire: Owen Fischer completed the Fund IV Investor Questionnaire on March 10, 2024 with BFO entity information, including the identification of Julian R. Hargrove as the authorized signatory. The questionnaire included investor representations confirming that BFO is an accredited investor (as defined in Regulation D under the Securities Act of 1933), a qualified purchaser, not an ERISA plan or benefit plan investor, and not a "bad actor" (as defined in Rule 506(d) of Regulation D). The questionnaire also included anti-money laundering ("AML") and know-your-customer ("KYC") disclosures as required by Fund IV's compliance procedures.
Neither the Draft Subscription Agreement nor the Draft Investor Questionnaire was executed or submitted to the Fund, the General Partner, or the Fund Administrator. Both documents remain in draft form in the matter file and are of no legal effect.
6. Chronology of Termination Events
The following is a chronological summary of the events leading to BFO's decision to decline the Fund IV commitment and the termination of this matter:
7. Status of All Documents and Deliverables
7.1 Executed Documents
The only document executed in connection with this matter was the engagement letter between Calderwood & Harkness LLP and Briarwood Family Office LLC, dated January 24, 2024. The engagement has been terminated as of the date hereof. The engagement letter remains in the matter file for record-keeping purposes. No other documents were executed by any party in connection with this matter.
7.2 Draft Documents — Lapsed / Not Executed
The following draft documents were prepared during the course of the engagement. All such documents lapsed without execution and are of no legal force or effect:
• Side-Letter Term Sheet (Initial) — Transmitted to Ashford Crane on February 7, 2024; superseded by the revised term sheet dated February 21, 2024; lapsed.
• Side-Letter Term Sheet (Revised) — Transmitted to Ashford Crane on February 21, 2024; superseded by the first full draft side letter dated February 28, 2024; lapsed.
• First Draft Side Letter — Transmitted to Ashford Crane on February 28, 2024; superseded by the second draft side letter dated March 7, 2024; lapsed without execution.
• Second Draft Side Letter — Transmitted to Ashford Crane on March 7, 2024; superseded by the third draft side letter dated March 14, 2024; lapsed without execution.
• Third Draft Side Letter — Transmitted to Ashford Crane on March 14, 2024; this was the last draft transmitted by C&H; the GP's second markup was returned on March 18, 2024; no further drafts were exchanged; lapsed without execution.
• GP Markup of Term Sheet — Received from Ashford Crane on February 14, 2024; superseded; lapsed.
• First GP Markup of Side Letter — Received from Ashford Crane on March 4, 2024; superseded; lapsed.
• Second GP Markup of Side Letter — Received from Ashford Crane on March 18, 2024; this was the last markup received from the GP; lapsed without execution.
• Draft Subscription Agreement (C&H Markup) — Prepared by Owen Fischer on March 10, 2024; never executed by BFO; never submitted to Fund IV, the General Partner, or the Fund Administrator.
• Draft Investor Questionnaire — Prepared by Owen Fischer on March 10, 2024; never submitted to Fund IV, the General Partner, or the Fund Administrator.
For the avoidance of doubt, all negotiated provisions contained in the draft side letters — including the MFN clause, excuse and exclusion rights, management fee reduction, co-investment rights, enhanced reporting provisions, key person enhancement, transfer rights, confidentiality carve-outs, tax reporting provisions, and placement fee offset — are of no force or effect and impose no obligations on any party.
7.3 Internal Work Product
The following internal memoranda, working papers, and other work product were prepared by the engagement team during the course of this matter. All such documents are attorney work product, are protected by the attorney-client privilege and the work product doctrine, and are maintained in the matter file:
1. Conflict Check Memorandum (January 22, 2024)
2. New Matter Intake Form (January 22, 2024)
3. Staffing & Budget Memo (January 23, 2024)
4. LPA Review Memorandum (February 2, 2024)
5. PPM Summary & Risk Assessment Memorandum (February 2, 2024)
6. Fee & Economics Analysis Memorandum (February 4, 2024)
7. MFN Provision Comparison Matrix (February 5, 2024) — internal working paper
8. Side-Letter Negotiation Strategy Memorandum (February 5, 2024)
9. Internal Memo re: GP Markup of Term Sheet (February 15, 2024)
10. Redline Comparison: GP Markup of First Draft Side Letter (March 5, 2024)
11. Excuse Rights Analysis Memorandum (March 6, 2024)
12. Conference Call Agenda & Preparation Memorandum (March 8, 2024)
13. Conference Call Summary Memorandum (March 12, 2024)
14. Redline Comparison: Second GP Markup of Side Letter (March 19, 2024)