1024-00004 · Client 1024 · Closing

board-resolutions-co-issuer.docx DOCUMENT M&A / Corporate

2 / 38 ← → ✕

WRITTEN CONSENT OF THE SOLE MEMBER

DRIFTWOOD CLO 2023-I, LLC

IN LIEU OF A MEETING

August 20, 2023

This Written Consent (this "Written Consent") is executed as of August 20, 2023, and constitutes the written consent in lieu of a meeting of the sole member of Driftwood CLO 2023-I, LLC, a limited liability company formed under the laws of the State of Delaware (the "Company"), Delaware Division of Corporations File No. 7429831.

The sole member of the Company is Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands, Cayman Islands Registrar of Companies Registration No. EX-382916 (the "Sole Member" or the "Issuer").

The registered agent of the Company in the State of Delaware is National Registered Agents Inc., located at 1209 Orange Street, Wilmington, Delaware 19801.

Reference is hereby made to that certain Limited Liability Company Agreement of Driftwood CLO 2023-I, LLC, dated as of August 22, 2023 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "LLC Agreement"), and to the Delaware Limited Liability Company Act, Title 6, Chapter 18 of the Delaware Code, as amended (the "Act").

The Sole Member, constituting the sole member of the Company and being entitled to act by written consent in lieu of a meeting of the members of the Company pursuant to the terms of the LLC Agreement and Section 18-302 of the Act, hereby adopts the following recitals and resolutions, effective as of the date first written above:

RECITALS

WHEREAS, the Company was duly formed as a Delaware limited liability company by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware on or about August 18, 2023, with Driftwood CLO 2023-I, Ltd. as its sole member, and is currently in good standing under the laws of the State of Delaware;

WHEREAS, pursuant to the LLC Agreement, the Sole Member is authorized to take action by written consent in lieu of a meeting and to manage, direct, and control the business and affairs of the Company;

WHEREAS, the Company is to serve as a co-issuer (the "Co-Issuer") in connection with a collateralized loan obligation transaction (the "Transaction") involving the issuance of certain classes of secured and subordinated notes in an aggregate principal amount of Four Hundred Million Dollars ($400,000,000) (collectively, the "Notes"), which Transaction is structured as a cash-flow CLO backed by a portfolio of broadly syndicated senior secured loans and other debt obligations;

WHEREAS, the Transaction involves the issuance of the following tranches of Notes by the Issuer and the Co-Issuer, jointly and severally, with the following initial principal amounts, interest rates, and credit ratings:

WHEREAS, the Notes are to be offered and sold in reliance on the exemptions from registration provided by Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and Regulation S under the Securities Act, and have not been and will not be registered under the Securities Act or under any state securities or "blue sky" laws;

WHEREAS, in connection with the Transaction, the Company desires to enter into certain agreements and take certain actions as more particularly set forth below, including, without limitation, the execution and delivery of the Indenture, the Co-Issuance Agreement, the Note Purchase Agreement, and certain other related Transaction Documents (each as defined below);

WHEREAS, the Sole Member has carefully reviewed the terms and conditions of the Transaction, including the Transaction Documents described herein, and has determined that the entry into and performance of the Transaction and the Transaction Documents is in the best interests of the Company and is consistent with the purposes for which the Company was organized; and

WHEREAS, the Sole Member desires to authorize the Company and its authorized officers to take all actions necessary or desirable to consummate the Transaction and to execute, deliver, and perform all agreements, instruments, certificates, and documents in connection therewith.

NOW, THEREFORE, the Sole Member hereby adopts the following resolutions:

SECTION 1: APPROVAL OF TRANSACTION DOCUMENTS

RESOLVED, that the Company is hereby authorized to enter into, execute, deliver, and perform its obligations under each of the following agreements, instruments, and documents (collectively, together with all schedules, exhibits, annexes, and supplements thereto, the "Transaction Documents"):

1.1 Indenture. The Indenture (the "Indenture"), to be dated as of August 22, 2023, among Driftwood CLO 2023-I, Ltd., as Issuer, the Company, as Co-Issuer, and Ironclad Trust Company, N.A., a national banking association, as Trustee, Note Registrar, Paying Agent, Transfer Agent, Custodian, and Collateral Administrator, governing the issuance, authentication, delivery, and terms of the Notes, including, without limitation, the priority of payments waterfall, the overcollateralization tests and their applicable trigger levels, the interest coverage tests and their applicable trigger levels, collateral quality tests, concentration limitations, collateral eligibility criteria, reinvestment criteria, events of default, acceleration and remedies upon the occurrence of an event of default, optional and mandatory redemption provisions, and all other terms and conditions set forth therein. The Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law).

The key economic and structural terms of the Indenture shall include the following:

(a) Reference Rate. The applicable reference rate for the floating rate Notes shall be Compounded SOFR (the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York), determined in accordance with the ISDA 2021 fallback convention (ARRC Recommended Fallback Provision No. 26253), with customary benchmark replacement provisions upon the occurrence of a benchmark transition event.

(b) Day Count Convention. Interest on the Notes shall be calculated on the basis of the actual number of days elapsed in the applicable interest accrual period divided by 360 (Actual/360).

(c) Payment Dates. Interest and principal payments on the Notes shall be made quarterly on the fifteenth (15th) day of each January, April, July, and October, commencing on January 15, 2024 (each, a "Payment Date"), subject to adjustment for business days in accordance with the Modified Following Business Day Convention.

(d) Non-Call Period. No optional redemption of the Notes in whole or in part shall be permitted prior to September 12, 2025 (the "Non-Call Period End Date"), except in connection with a mandatory redemption event or an acceleration of the Notes following an event of default.

(e) Reinvestment Period. The period during which the collateral manager may reinvest principal proceeds of the collateral assets shall commence on the Closing Date and end on September 12, 2028 (the "Reinvestment Period End Date"), subject to the terms and conditions set forth in the Indenture.

(f) Stated Maturity. The final maturity date of the Notes shall be October 15, 2036 (the "Stated Maturity"), on which date all outstanding principal of, premium (if any) on, and accrued and unpaid interest on the Notes shall be due and payable.

1.2 Co-Issuance Agreement

The Co-Issuance Agreement (the "Co-Issuance Agreement"), to be dated as of August 22, 2023, between Driftwood CLO 2023-I, Ltd., as Issuer, and the Company, as Co-Issuer, setting forth the joint and several obligations of the Issuer and the Co-Issuer with respect to the Notes and under the Indenture, the respective roles and responsibilities of each entity in connection with the issuance and ongoing administration of the Notes, and such other terms and conditions as are customary for co-issuance arrangements in collateralized loan obligation transactions. The Co-Issuance Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law).

1.3 Note Purchase Agreement

The Note Purchase Agreement (the "Note Purchase Agreement"), to be entered into on or about September 8, 2023, among Driftwood CLO 2023-I, Ltd., as Issuer, the Company, as Co-Issuer, Meridian Atlantic Securities LLC, as lead placement agent, and Northbridge Capital Markets Inc., as co-placement agent (each, a "Placement Agent" and, collectively, the "Placement Agents"), for the purchase, offer, and initial placement of the Notes by the Placement Agents to qualified institutional buyers in reliance on Rule 144A under the Securities Act and to persons that are not U.S. persons (as defined in Regulation S under the Securities Act) in offshore transactions in reliance on Regulation S under the Securities Act, all in accordance with the terms and conditions set forth therein. The Note Purchase Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law).

1.4 Other Transaction Documents

Such other certificates, agreements, instruments, and documents as may be necessary, appropriate, or desirable in connection with the Transaction, including, without limitation:

(a) any supplemental indentures to the Indenture, including the First Supplemental Indenture to the Indenture, to be dated as of the Closing Date, to reflect the final pricing terms, interest rate spreads, and other definitive economic terms of the Notes as determined on or about the pricing date;

(b) any offering memoranda, private placement memoranda, or similar disclosure documents, including the Final Offering Memorandum dated August 18, 2023 (the "Offering Memorandum"), relating to the offer and sale of the Notes;

(c) the Collateral Management Agreement, to be dated as of August 22, 2023, between the Issuer and the collateral manager named therein;

(d) any account control agreements, pledge agreements, security agreements, or other collateral documents;

(e) any tax-related documents, including any IRS Form W-8 or Form W-9, as applicable;

(f) any filings or registrations with the U.S. Commodity Futures Trading Commission or the National Futures Association, as applicable; and

(g) any other ancillary documents, certificates, side letters, or instruments contemplated by or related to the foregoing.

FURTHER RESOLVED, that the terms and conditions of each of the Transaction Documents, in substantially the forms presented to or described to the Sole Member, or with such changes, modifications, additions, or deletions as the Authorized Officers (as defined below) may approve, are hereby approved in all respects.

SECTION 2: AUTHORIZATION OF ISSUANCE OF THE NOTES

RESOLVED, that the Company, as Co-Issuer, is hereby authorized to co-issue, jointly and severally with the Issuer, the Notes in the following classes and aggregate principal amounts, with the following CUSIP numbers and ISIN identifiers:

FURTHER RESOLVED, that the total aggregate principal amount of Notes to be issued by the Issuer and the Co-Issuer in connection with the Transaction shall not exceed Four Hundred Million Dollars ($400,000,000).

FURTHER RESOLVED, that the minimum denomination for each class of rated Notes (i.e., Class A-1, Class A-2, Class B, Class C, and Class D Notes) shall be $250,000, with integral multiples of $1,000 in excess thereof, and the minimum denomination for the Subordinated Notes shall be $250,000, with integral multiples of $1 in excess thereof.

FURTHER RESOLVED, that the Notes shall be issued in book-entry form and shall be cleared and settled through The Depository Trust Company ("DTC") or its nominee, with Ironclad Trust Company, N.A. acting as the DTC participant for purposes of the initial deposit of the Notes, DTC Participant No. 2176, and that such Notes shall be evidenced by one or more global certificates registered in the name of Cede & Co., as nominee of DTC, in accordance with the terms and conditions of the Indenture.

SECTION 3: DESIGNATION OF AUTHORIZED OFFICERS AND SIGNATORIES

RESOLVED, that the following individuals, acting singly or together, are each hereby designated as authorized officers of the Company (each, an "Authorized Officer") and are each hereby authorized and empowered to execute and deliver, on behalf of the Company, each of the Transaction Documents described herein and any and all other documents, certificates, instruments, or agreements contemplated thereby or otherwise required in connection with the Transaction:

(a) Katherine M. Aldridge, Director

(b) Jonathan R. Whitfield, Director

FURTHER RESOLVED, that each Authorized Officer, acting singly, is hereby authorized and empowered to negotiate the final terms, conditions, and provisions of each Transaction Document, and to agree to such modifications, amendments, supplements, or changes thereto as such Authorized Officer may in his or her sole discretion approve, such approval to be conclusively evidenced by such Authorized Officer's execution and delivery thereof, without any requirement for further action or consent of the Sole Member, and the execution and delivery by any such Authorized Officer of any Transaction Document or other instrument in connection with the Transaction shall be deemed to constitute conclusive evidence of the Company's approval of such document and all terms and conditions contained therein.

FURTHER RESOLVED, that each Authorized Officer is hereby authorized to delegate the authority granted herein to such other persons as such Authorized Officer may designate, by written instrument, from time to time, and any actions taken by such designees in furtherance of the Transaction shall be deemed to have been taken by an Authorized Officer for all purposes of these resolutions.

SECTION 4: AUTHORIZATION OF CLOSING ACTIONS

RESOLVED, that each Authorized Officer is hereby authorized and directed to take any and all actions, and to execute and deliver any and all documents, certificates, instruments, and agreements, necessary or desirable to effectuate the closing of the Transaction on or about September 12, 2023 (the "Closing Date"), including, without limitation, the following:

(a) the execution and delivery of one or more officer's certificates, closing certificates, and any bring-down certificates required pursuant to the Note Purchase Agreement or any other Transaction Document, certifying as to the due authorization, execution, and delivery of the Transaction Documents, the accuracy of representations and warranties, and the satisfaction of conditions precedent to closing;

(b) the delivery of the Notes, duly executed and authenticated, to or upon the order of Meridian Atlantic Securities LLC, as lead placement agent, and Northbridge Capital Markets Inc., as co-placement agent, in accordance with the terms of the Note Purchase Agreement;

(c) the issuance of written directions to Ironclad Trust Company, N.A., as Trustee and Note Registrar, to authenticate and deliver the Notes in accordance with the terms of the Indenture, including the issuance of global certificates to be deposited with or on behalf of DTC;

(d) the receipt of note proceeds from the sale of the Notes and the application thereof in accordance with the closing funds flow memorandum (the "Funds Flow Memorandum"), including, without limitation, the repayment in full of the outstanding balance under the warehouse credit facility in the aggregate principal amount of Two Hundred Twelve Million Five Hundred Thousand Dollars ($212,500,000) to Havenwood Bank, N.A., as warehouse lender, upon the release and termination of such warehouse facility;

(e) the payment of placement fees in the following amounts: (i) One Million Eight Hundred Twenty Thousand Dollars ($1,820,000) to Meridian Atlantic Securities LLC, as lead placement agent; and (ii) Ninety Thousand Dollars ($90,000) to Northbridge Capital Markets Inc., as co-placement agent, in each case in accordance with the terms of the Note Purchase Agreement and the Funds Flow Memorandum;

(f) the payment of all other transaction expenses, including legal fees, accounting fees, rating agency fees, trustee fees, printing costs, and other customary closing costs and expenses, in each case as set forth in the Funds Flow Memorandum; and

(g) the taking of any and all other actions as any Authorized Officer may deem necessary, appropriate, or advisable in connection with the consummation of the Transaction on the Closing Date.

SECTION 5: RATIFICATION OF PRIOR ACTIONS

RESOLVED, that all actions heretofore taken by any officer, director, authorized agent, representative, or designee of the Company in connection with the Transaction, the formation and organization of the Company, the preparation, negotiation, and execution of the Certificate of Formation filed with the Secretary of State of the State of Delaware, the preparation, negotiation, and execution of the LLC Agreement, the engagement of legal counsel, rating agencies, trustees, and placement agents, the preparation of the Offering Memorandum and any preliminary offering memorandum, and any and all other preliminary steps, negotiations, discussions, and actions taken in connection with the planning, structuring, and preparation of the Transaction, are hereby in all respects ratified, confirmed, approved, and adopted as actions of the Company, with the same force and effect as if such actions had been specifically authorized by the Sole Member prior to the taking thereof.

SECTION 6: GENERAL AUTHORITY

RESOLVED, that each Authorized Officer is hereby authorized and empowered, in the name and on behalf of the Company, to take any and all such further actions, and to execute, deliver, file, and record any and all such further agreements, certificates, instruments, filings, notices, registrations, applications, and documents, in each case under seal or otherwise, as such Authorized Officer shall deem necessary, appropriate, or advisable in order to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated hereby, the execution and delivery of any such agreements, certificates, instruments, or documents, or the taking of any such actions, by any Authorized Officer to be conclusive evidence of such Authorized Officer's determination that such execution, delivery, filing, or action is necessary, appropriate, or advisable, without any requirement for further action or consent of the Sole Member.

FURTHER RESOLVED, that this Written Consent may be executed in one or more counterparts, including by facsimile or by electronic transmission in portable document format (.pdf), each of which shall be deemed an original for all purposes, and all of which taken together shall constitute one and the same instrument.

FURTHER RESOLVED, that this Written Consent shall be filed with the books and records of the Company maintained at the Company's principal office and shall have the same force and effect as if the resolutions set forth herein had been duly adopted at a meeting of the sole member of the Company duly called, noticed, convened, and held in accordance with the LLC Agreement and the Act, with the Sole Member present and voting in favor thereof.

FURTHER RESOLVED, that this Written Consent shall be effective as of the date first written above.

[Remainder of this page intentionally left blank. Signature page follows.]

SIGNATURE PAGE TO WRITTEN CONSENT OF THE SOLE MEMBER OF DRIFTWOOD CLO 2023-I, LLC

IN WITNESS WHEREOF, the undersigned Sole Member has executed this Written Consent as of August 20, 2023.

DRIFTWOOD CLO 2023-I, LTD., as Sole Member

By: ________

Name: Katherine M. Aldridge

Title: Director

(Authorized Signatory of Driftwood CLO 2023-I, Ltd.)

Prepared by Calderwood & Harkness LLP 450 Park Avenue New York, New York 10022 C&H Matter No.: 1024-00004

Class	Principal Amount	Interest Rate	Brindoval Analytical Services Inc. Rating	Ridgeline Credit Ratings LLC Rating
Class A-1 Notes	$256,000,000	SOFR + 155 bps	AAA (sf)	AAA (sf)
Class A-2 Notes	$40,000,000	SOFR + 190 bps	AA (sf)	AA (sf)
Class B Notes	$28,000,000	SOFR + 230 bps	A (sf)	A (sf)
Class C Notes	$24,000,000	SOFR + 310 bps	BBB (sf)	BBB (sf)
Class D Notes	$16,000,000	SOFR + 625 bps	BB (sf)	BB (sf)
Subordinated Notes	$36,000,000	N/A (residual)	Unrated	Unrated
Total	$400,000,000
Class	Principal Amount	CUSIP (Rule 144A)	CUSIP (Reg S)	ISIN (Rule 144A)
Class A-1 Notes	$256,000,000	26738TAA5	G2694LAA7	US26738TAA51
Class A-2 Notes	$40,000,000	26738TAB3	—	—
Class B Notes	$28,000,000	26738TAC1	—	—
Class C Notes	$24,000,000	26738TAD9	—	—
Class D Notes	$16,000,000	26738TAE7	—	—
Subordinated Notes	$36,000,000	26738TAF4	—	—
Total	$400,000,000

WRITTEN CONSENT OF THE SOLE MEMBER
OF
DRIFTWOOD CLO 2023-I, LLC
IN LIEU OF A MEETING
August 20, 2023
This Written Consent (this "Written Consent") is executed as of August 20, 2023, and constitutes the written consent in lieu of a meeting of the sole member of Driftwood CLO 2023-I, LLC, a limited liability company formed under the laws of the State of Delaware (the "Company"), Delaware Division of Corporations File No. 7429831.
The sole member of the Company is Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands, Cayman Islands Registrar of Companies Registration No. EX-382916 (the "Sole Member" or the "Issuer").
The registered agent of the Company in the State of Delaware is National Registered Agents Inc., located at 1209 Orange Street, Wilmington, Delaware 19801.
Reference is hereby made to that certain Limited Liability Company Agreement of Driftwood CLO 2023-I, LLC, dated as of August 22, 2023 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "LLC Agreement"), and to the Delaware Limited Liability Company Act, Title 6, Chapter 18 of the Delaware Code, as amended (the "Act").
The Sole Member, constituting the sole member of the Company and being entitled to act by written consent in lieu of a meeting of the members of the Company pursuant to the terms of the LLC Agreement and Section 18-302 of the Act, hereby adopts the following recitals and resolutions, effective as of the date first written above:
RECITALS
WHEREAS, the Company was duly formed as a Delaware limited liability company by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware on or about August 18, 2023, with Driftwood CLO 2023-I, Ltd. as its sole member, and is currently in good standing under the laws of the State of Delaware;
WHEREAS, pursuant to the LLC Agreement, the Sole Member is authorized to take action by written consent in lieu of a meeting and to manage, direct, and control the business and affairs of the Company;
WHEREAS, the Company is to serve as a co-issuer (the "Co-Issuer") in connection with a collateralized loan obligation transaction (the "Transaction") involving the issuance of certain classes of secured and subordinated notes in an aggregate principal amount of Four Hundred Million Dollars ($400,000,000) (collectively, the "Notes"), which Transaction is structured as a cash-flow CLO backed by a portfolio of broadly syndicated senior secured loans and other debt obligations;
WHEREAS, the Transaction involves the issuance of the following tranches of Notes by the Issuer and the Co-Issuer, jointly and severally, with the following initial principal amounts, interest rates, and credit ratings:
WHEREAS, the Notes are to be offered and sold in reliance on the exemptions from registration provided by Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and Regulation S under the Securities Act, and have not been and will not be registered under the Securities Act or under any state securities or "blue sky" laws;
WHEREAS, in connection with the Transaction, the Company desires to enter into certain agreements and take certain actions as more particularly set forth below, including, without limitation, the execution and delivery of the Indenture, the Co-Issuance Agreement, the Note Purchase Agreement, and certain other related Transaction Documents (each as defined below);
WHEREAS, the Sole Member has carefully reviewed the terms and conditions of the Transaction, including the Transaction Documents described herein, and has determined that the entry into and performance of the Transaction and the Transaction Documents is in the best interests of the Company and is consistent with the purposes for which the Company was organized; and
WHEREAS, the Sole Member desires to authorize the Company and its authorized officers to take all actions necessary or desirable to consummate the Transaction and to execute, deliver, and perform all agreements, instruments, certificates, and documents in connection therewith.
NOW, THEREFORE, the Sole Member hereby adopts the following resolutions:
SECTION 1: APPROVAL OF TRANSACTION DOCUMENTS
RESOLVED, that the Company is hereby authorized to enter into, execute, deliver, and perform its obligations under each of the following agreements, instruments, and documents (collectively, together with all schedules, exhibits, annexes, and supplements thereto, the "Transaction Documents"):
1.1 Indenture.  The Indenture (the "Indenture"), to be dated as of August 22, 2023, among Driftwood CLO 2023-I, Ltd., as Issuer, the Company, as Co-Issuer, and Ironclad Trust Company, N.A., a national banking association, as Trustee, Note Registrar, Paying Agent, Transfer Agent, Custodian, and Collateral Administrator, governing the issuance, authentication, delivery, and terms of the Notes, including, without limitation, the priority of payments waterfall, the overcollateralization tests and their applicable trigger levels, the interest coverage tests and their applicable trigger levels, collateral quality tests, concentration limitations, collateral eligibility criteria, reinvestment criteria, events of default, acceleration and remedies upon the occurrence of an event of default, optional and mandatory redemption provisions, and all other terms and conditions set forth therein. The Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law).
The key economic and structural terms of the Indenture shall include the following:
(a) Reference Rate. The applicable reference rate for the floating rate Notes shall be Compounded SOFR (the Secured Overnight Financing Rate as administered by the Federal Reserve Bank of New York), determined in accordance with the ISDA 2021 fallback convention (ARRC Recommended Fallback Provision No. 26253), with customary benchmark replacement provisions upon the occurrence of a benchmark transition event.
(b) Day Count Convention. Interest on the Notes shall be calculated on the basis of the actual number of days elapsed in the applicable interest accrual period divided by 360 (Actual/360).
(c) Payment Dates. Interest and principal payments on the Notes shall be made quarterly on the fifteenth (15th) day of each January, April, July, and October, commencing on January 15, 2024 (each, a "Payment Date"), subject to adjustment for business days in accordance with the Modified Following Business Day Convention.
(d) Non-Call Period. No optional redemption of the Notes in whole or in part shall be permitted prior to September 12, 2025 (the "Non-Call Period End Date"), except in connection with a mandatory redemption event or an acceleration of the Notes following an event of default.
(e) Reinvestment Period. The period during which the collateral manager may reinvest principal proceeds of the collateral assets shall commence on the Closing Date and end on September 12, 2028 (the "Reinvestment Period End Date"), subject to the terms and conditions set forth in the Indenture.
(f) Stated Maturity. The final maturity date of the Notes shall be October 15, 2036 (the "Stated Maturity"), on which date all outstanding principal of, premium (if any) on, and accrued and unpaid interest on the Notes shall be due and payable.
1.2 Co-Issuance Agreement
The Co-Issuance Agreement (the "Co-Issuance Agreement"), to be dated as of August 22, 2023, between Driftwood CLO 2023-I, Ltd., as Issuer, and the Company, as Co-Issuer, setting forth the joint and several obligations of the Issuer and the Co-Issuer with respect to the Notes and under the Indenture, the respective roles and responsibilities of each entity in connection with the issuance and ongoing administration of the Notes, and such other terms and conditions as are customary for co-issuance arrangements in collateralized loan obligation transactions. The Co-Issuance Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law).
1.3 Note Purchase Agreement
The Note Purchase Agreement (the "Note Purchase Agreement"), to be entered into on or about September 8, 2023, among Driftwood CLO 2023-I, Ltd., as Issuer, the Company, as Co-Issuer, Meridian Atlantic Securities LLC, as lead placement agent, and Northbridge Capital Markets Inc., as co-placement agent (each, a "Placement Agent" and, collectively, the "Placement Agents"), for the purchase, offer, and initial placement of the Notes by the Placement Agents to qualified institutional buyers in reliance on Rule 144A under the Securities Act and to persons that are not U.S. persons (as defined in Regulation S under the Securities Act) in offshore transactions in reliance on Regulation S under the Securities Act, all in accordance with the terms and conditions set forth therein. The Note Purchase Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflict of laws principles (other than Section 5-1401 of the New York General Obligations Law).
1.4 Other Transaction Documents
Such other certificates, agreements, instruments, and documents as may be necessary, appropriate, or desirable in connection with the Transaction, including, without limitation:
(a) any supplemental indentures to the Indenture, including the First Supplemental Indenture to the Indenture, to be dated as of the Closing Date, to reflect the final pricing terms, interest rate spreads, and other definitive economic terms of the Notes as determined on or about the pricing date;
(b) any offering memoranda, private placement memoranda, or similar disclosure documents, including the Final Offering Memorandum dated August 18, 2023 (the "Offering Memorandum"), relating to the offer and sale of the Notes;
(c) the Collateral Management Agreement, to be dated as of August 22, 2023, between the Issuer and the collateral manager named therein;
(d) any account control agreements, pledge agreements, security agreements, or other collateral documents;
(e) any tax-related documents, including any IRS Form W-8 or Form W-9, as applicable;
(f) any filings or registrations with the U.S. Commodity Futures Trading Commission or the National Futures Association, as applicable; and
(g) any other ancillary documents, certificates, side letters, or instruments contemplated by or related to the foregoing.
FURTHER RESOLVED, that the terms and conditions of each of the Transaction Documents, in substantially the forms presented to or described to the Sole Member, or with such changes, modifications, additions, or deletions as the Authorized Officers (as defined below) may approve, are hereby approved in all respects.
SECTION 2: AUTHORIZATION OF ISSUANCE OF THE NOTES
RESOLVED, that the Company, as Co-Issuer, is hereby authorized to co-issue, jointly and severally with the Issuer, the Notes in the following classes and aggregate principal amounts, with the following CUSIP numbers and ISIN identifiers:
FURTHER RESOLVED, that the total aggregate principal amount of Notes to be issued by the Issuer and the Co-Issuer in connection with the Transaction shall not exceed Four Hundred Million Dollars ($400,000,000).
FURTHER RESOLVED, that the minimum denomination for each class of rated Notes (i.e., Class A-1, Class A-2, Class B, Class C, and Class D Notes) shall be $250,000, with integral multiples of $1,000 in excess thereof, and the minimum denomination for the Subordinated Notes shall be $250,000, with integral multiples of $1 in excess thereof.
FURTHER RESOLVED, that the Notes shall be issued in book-entry form and shall be cleared and settled through The Depository Trust Company ("DTC") or its nominee, with Ironclad Trust Company, N.A. acting as the DTC participant for purposes of the initial deposit of the Notes, DTC Participant No. 2176, and that such Notes shall be evidenced by one or more global certificates registered in the name of Cede & Co., as nominee of DTC, in accordance with the terms and conditions of the Indenture.
SECTION 3: DESIGNATION OF AUTHORIZED OFFICERS AND SIGNATORIES
RESOLVED, that the following individuals, acting singly or together, are each hereby designated as authorized officers of the Company (each, an "Authorized Officer") and are each hereby authorized and empowered to execute and deliver, on behalf of the Company, each of the Transaction Documents described herein and any and all other documents, certificates, instruments, or agreements contemplated thereby or otherwise required in connection with the Transaction:
(a) Katherine M. Aldridge, Director
(b) Jonathan R. Whitfield, Director
(c) David S. Okonkwo, Director and Secretary
FURTHER RESOLVED, that each Authorized Officer, acting singly, is hereby authorized and empowered to negotiate the final terms, conditions, and provisions of each Transaction Document, and to agree to such modifications, amendments, supplements, or changes thereto as such Authorized Officer may in his or her sole discretion approve, such approval to be conclusively evidenced by such Authorized Officer's execution and delivery thereof, without any requirement for further action or consent of the Sole Member, and the execution and delivery by any such Authorized Officer of any Transaction Document or other instrument in connection with the Transaction shall be deemed to constitute conclusive evidence of the Company's approval of such document and all terms and conditions contained therein.
FURTHER RESOLVED, that each Authorized Officer is hereby authorized to delegate the authority granted herein to such other persons as such Authorized Officer may designate, by written instrument, from time to time, and any actions taken by such designees in furtherance of the Transaction shall be deemed to have been taken by an Authorized Officer for all purposes of these resolutions.
SECTION 4: AUTHORIZATION OF CLOSING ACTIONS
RESOLVED, that each Authorized Officer is hereby authorized and directed to take any and all actions, and to execute and deliver any and all documents, certificates, instruments, and agreements, necessary or desirable to effectuate the closing of the Transaction on or about September 12, 2023 (the "Closing Date"), including, without limitation, the following:
(a) the execution and delivery of one or more officer's certificates, closing certificates, and any bring-down certificates required pursuant to the Note Purchase Agreement or any other Transaction Document, certifying as to the due authorization, execution, and delivery of the Transaction Documents, the accuracy of representations and warranties, and the satisfaction of conditions precedent to closing;
(b) the delivery of the Notes, duly executed and authenticated, to or upon the order of Meridian Atlantic Securities LLC, as lead placement agent, and Northbridge Capital Markets Inc., as co-placement agent, in accordance with the terms of the Note Purchase Agreement;
(c) the issuance of written directions to Ironclad Trust Company, N.A., as Trustee and Note Registrar, to authenticate and deliver the Notes in accordance with the terms of the Indenture, including the issuance of global certificates to be deposited with or on behalf of DTC;
(d) the receipt of note proceeds from the sale of the Notes and the application thereof in accordance with the closing funds flow memorandum (the "Funds Flow Memorandum"), including, without limitation, the repayment in full of the outstanding balance under the warehouse credit facility in the aggregate principal amount of Two Hundred Twelve Million Five Hundred Thousand Dollars ($212,500,000) to Havenwood Bank, N.A., as warehouse lender, upon the release and termination of such warehouse facility;
(e) the payment of placement fees in the following amounts: (i) One Million Eight Hundred Twenty Thousand Dollars ($1,820,000) to Meridian Atlantic Securities LLC, as lead placement agent; and (ii) Ninety Thousand Dollars ($90,000) to Northbridge Capital Markets Inc., as co-placement agent, in each case in accordance with the terms of the Note Purchase Agreement and the Funds Flow Memorandum;
(f) the payment of all other transaction expenses, including legal fees, accounting fees, rating agency fees, trustee fees, printing costs, and other customary closing costs and expenses, in each case as set forth in the Funds Flow Memorandum; and
(g) the taking of any and all other actions as any Authorized Officer may deem necessary, appropriate, or advisable in connection with the consummation of the Transaction on the Closing Date.
SECTION 5: RATIFICATION OF PRIOR ACTIONS
RESOLVED, that all actions heretofore taken by any officer, director, authorized agent, representative, or designee of the Company in connection with the Transaction, the formation and organization of the Company, the preparation, negotiation, and execution of the Certificate of Formation filed with the Secretary of State of the State of Delaware, the preparation, negotiation, and execution of the LLC Agreement, the engagement of legal counsel, rating agencies, trustees, and placement agents, the preparation of the Offering Memorandum and any preliminary offering memorandum, and any and all other preliminary steps, negotiations, discussions, and actions taken in connection with the planning, structuring, and preparation of the Transaction, are hereby in all respects ratified, confirmed, approved, and adopted as actions of the Company, with the same force and effect as if such actions had been specifically authorized by the Sole Member prior to the taking thereof.
SECTION 6: GENERAL AUTHORITY
RESOLVED, that each Authorized Officer is hereby authorized and empowered, in the name and on behalf of the Company, to take any and all such further actions, and to execute, deliver, file, and record any and all such further agreements, certificates, instruments, filings, notices, registrations, applications, and documents, in each case under seal or otherwise, as such Authorized Officer shall deem necessary, appropriate, or advisable in order to carry out the intent and purposes of the foregoing resolutions and to consummate the transactions contemplated hereby, the execution and delivery of any such agreements, certificates, instruments, or documents, or the taking of any such actions, by any Authorized Officer to be conclusive evidence of such Authorized Officer's determination that such execution, delivery, filing, or action is necessary, appropriate, or advisable, without any requirement for further action or consent of the Sole Member.
FURTHER RESOLVED, that this Written Consent may be executed in one or more counterparts, including by facsimile or by electronic transmission in portable document format (.pdf), each of which shall be deemed an original for all purposes, and all of which taken together shall constitute one and the same instrument.
FURTHER RESOLVED, that this Written Consent shall be filed with the books and records of the Company maintained at the Company's principal office and shall have the same force and effect as if the resolutions set forth herein had been duly adopted at a meeting of the sole member of the Company duly called, noticed, convened, and held in accordance with the LLC Agreement and the Act, with the Sole Member present and voting in favor thereof.
FURTHER RESOLVED, that this Written Consent shall be effective as of the date first written above.
[Remainder of this page intentionally left blank. Signature page follows.]
SIGNATURE PAGE TO WRITTEN CONSENT OF THE SOLE MEMBER OF DRIFTWOOD CLO 2023-I, LLC
IN WITNESS WHEREOF, the undersigned Sole Member has executed this Written Consent as of August 20, 2023.
DRIFTWOOD CLO 2023-I, LTD., as Sole Member
By: ________
Name: Katherine M. Aldridge
Title: Director
(Authorized Signatory of Driftwood CLO 2023-I, Ltd.)
Prepared by Calderwood & Harkness LLP 450 Park Avenue New York, New York 10022 C&H Matter No.: 1024-00004
Class | Principal Amount | Interest Rate | Brindoval Analytical Services Inc. Rating | Ridgeline Credit Ratings LLC Rating
Class A-1 Notes | $256,000,000 | SOFR + 155 bps | AAA (sf) | AAA (sf)
Class A-2 Notes | $40,000,000 | SOFR + 190 bps | AA (sf) | AA (sf)
Class B Notes | $28,000,000 | SOFR + 230 bps | A (sf) | A (sf)
Class C Notes | $24,000,000 | SOFR + 310 bps | BBB (sf) | BBB (sf)
Class D Notes | $16,000,000 | SOFR + 625 bps | BB (sf) | BB (sf)
Subordinated Notes | $36,000,000 | N/A (residual) | Unrated | Unrated
Total | $400,000,000
Class | Principal Amount | CUSIP (Rule 144A) | CUSIP (Reg S) | ISIN (Rule 144A)
Class A-1 Notes | $256,000,000 | 26738TAA5 | G2694LAA7 | US26738TAA51
Class A-2 Notes | $40,000,000 | 26738TAB3 | — | —
Class B Notes | $28,000,000 | 26738TAC1 | — | —
Class C Notes | $24,000,000 | 26738TAD9 | — | —
Class D Notes | $16,000,000 | 26738TAE7 | — | —
Subordinated Notes | $36,000,000 | 26738TAF4 | — | —
Total | $400,000,000