DIRECTOR'S CERTIFICATE OF DRIFTWOOD CLO 2023-I, LTD.
Incumbency, Resolutions, and Organizational Documents
September 12, 2023
Delivered in connection with the Indenture dated as of August 22, 2023, as supplemented by the First Supplemental Indenture dated as of September 8, 2023 (collectively, the "Indenture"), among Driftwood CLO 2023-I, Ltd. (the "Issuer"), Driftwood CLO 2023-I, LLC (the "Co-Issuer"), and Ironclad Trust Company, N.A. (the "Trustee")
Note: Driftwood CLO 2023-I, Ltd. is an exempted company incorporated with limited liability under the laws of the Cayman Islands. Under Cayman Islands law, the Issuer does not have a corporate secretary in the manner customary for U.S. domestic corporations. Accordingly, this certificate is executed by a director of the Issuer and serves the equivalent function of a secretary's certificate as commonly delivered in U.S. structured finance transactions. All representations, certifications, and attestations contained herein are made in such capacity and with the same force and effect as if delivered by a duly appointed secretary of a U.S. corporation.
1. INTRODUCTORY RECITALS
The undersigned, being a duly appointed director of Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (Registration No. EX-382916), with its registered office at PO Box 4927, Windward House, 3rd Floor, George Town, Grand Cayman KY1-1306, Cayman Islands (the "Issuer"), hereby certifies as follows:
This Director's Certificate (this "Certificate") is being delivered by the undersigned on the date hereof (the "Closing Date") pursuant to:
(i) Section 3.3(b) of that certain Indenture, dated as of August 22, 2023 (the "Base Indenture"), among the Issuer, Driftwood CLO 2023-I, LLC, a Delaware limited liability company (the "Co-Issuer"), and Ironclad Trust Company, N.A., a national banking association organized under the laws of the United States ("Ironclad Trust Company, N.A."), as Trustee, Note Registrar, Paying Agent, Transfer Agent, Custodian, and Collateral Administrator (in such capacities, the "Trustee"), as supplemented by the First Supplemental Indenture, dated as of September 8, 2023, among the Issuer, the Co-Issuer, and the Trustee (the "First Supplemental Indenture" and, together with the Base Indenture, the "Indenture");
(ii) that certain Note Purchase Agreement, dated as of September 8, 2023 (the "Note Purchase Agreement"), among the Issuer, the Co-Issuer, Meridian Atlantic Securities LLC, as placement agent (the "Placement Agent"), and Northbridge Capital Markets Inc., as co-placement agent (the "Co-Placement Agent"); and
(iii) the other Transaction Documents (as defined in the Indenture).
This Certificate is delivered in connection with the issuance by the Issuer and Co-Issuer on the Closing Date of $400,000,000 aggregate principal amount of secured and subordinated notes (collectively, the "Notes"), consisting of:
(a) $256,000,000 aggregate principal amount of Class A-1 Senior Secured Floating Rate Notes due 2036 (the "Class A-1 Notes");
(b) $40,000,000 aggregate principal amount of Class A-2 Senior Secured Floating Rate Notes due 2036 (the "Class A-2 Notes");
(c) $28,000,000 aggregate principal amount of Class B Senior Secured Deferrable Floating Rate Notes due 2036 (the "Class B Notes");
(d) $24,000,000 aggregate principal amount of Class C Mezzanine Secured Deferrable Floating Rate Notes due 2036 (the "Class C Notes");
(e) $16,000,000 aggregate principal amount of Class D Mezzanine Secured Deferrable Floating Rate Notes due 2036 (the "Class D Notes"); and
(f) $36,000,000 aggregate principal amount of Subordinated Notes due 2036 (the "Subordinated Notes").
All certifications, representations, and statements made by the undersigned in this Certificate are made solely in the undersigned's capacity as a director of the Issuer and not in any personal capacity. The undersigned shall have no personal liability whatsoever in connection with this Certificate or the certifications, representations, and statements contained herein except in the case of the undersigned's own willful misconduct or fraud.
2. DEFINITIONS
Capitalized terms used but not otherwise defined in this Certificate shall have the respective meanings ascribed to such terms in the Indenture, dated as of August 22, 2023, as supplemented by the First Supplemental Indenture, dated as of September 8, 2023. For purposes of this Certificate, the term "Transaction Documents" shall mean, collectively, each of the following agreements, instruments, documents, and certificates, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time:
(a) the Indenture, dated as of August 22, 2023, among the Issuer, the Co-Issuer, and the Trustee (the "Base Indenture");
(b) the First Supplemental Indenture, dated as of September 8, 2023, among the Issuer, the Co-Issuer, and the Trustee (the "First Supplemental Indenture" and, together with the Base Indenture, the "Indenture");
(c) the Collateral Management Agreement, dated as of August 22, 2023, between the Issuer and the Collateral Manager (the "Collateral Management Agreement");
(d) the Collateral Administration Agreement, dated as of August 22, 2023, among the Issuer, the Collateral Manager, and the Trustee (the "Collateral Administration Agreement");
(e) the Co-Issuance Agreement, dated as of August 22, 2023, between the Issuer and the Co-Issuer (the "Co-Issuance Agreement");
(f) the Note Purchase Agreement, dated as of September 8, 2023, among the Issuer, the Co-Issuer, the Placement Agent, and the Co-Placement Agent (the "Note Purchase Agreement");
(g) the Notes, including each of the Class A-1 Notes, Class A-2 Notes, Class B Notes, Class C Notes, Class D Notes, and Subordinated Notes; and
(h) all ancillary documents, certificates, instruments, agreements, and writings executed and delivered by or on behalf of the Issuer in connection with any of the foregoing, including, without limitation, each officer's certificate, opinion of counsel, closing certificate, direction, notice, or instruction delivered pursuant to the Indenture or any other Transaction Document on or prior to the date hereof.
References herein to any agreement, document, or instrument shall be deemed to include all exhibits, schedules, annexes, and attachments thereto and all amendments, restatements, supplements, and other modifications thereto.
3. CERTIFICATION OF ORGANIZATIONAL DOCUMENTS
3.1 Memorandum and Articles of Association
The undersigned hereby certifies that attached hereto as Exhibit A is a true, correct, and complete copy of the Memorandum and Articles of Association of Driftwood CLO 2023-I, Ltd. (the "Memorandum and Articles of Association"), as adopted and currently in full force and effect. The Memorandum and Articles of Association have not been amended, restated, supplemented, or otherwise modified since their initial adoption and registration with the Registrar of Companies of the Cayman Islands. No proceedings are pending or, to the knowledge of the undersigned, contemplated for the amendment or modification of the Memorandum and Articles of Association.
The Memorandum and Articles of Association constitute the governing organizational documents of the Issuer under the laws of the Cayman Islands, including the Companies Act (as revised) of the Cayman Islands. The Memorandum and Articles of Association were prepared by Applegategate Offshore Services Ltd. (Nigel Pemberton, Partner), Windward House, 4th Floor, George Town, Grand Cayman KY1-1306, Cayman Islands, in its capacity as Cayman Islands counsel to the Issuer, in coordination with Calderwood & Harkness LLP, 450 Park Avenue, New York, New York 10022, in its capacity as U.S. counsel to the Issuer.
The objects clause contained in the Memorandum of Association is sufficiently broad to permit the Issuer to execute, deliver, and perform its obligations under each of the Transaction Documents and to consummate the transactions contemplated thereby, including, without limitation, the issuance of the Notes, the grant of security interests in the Collateral, and the engagement of the Collateral Manager and other service providers.
3.2 Certificate of Incorporation / Registration
The undersigned hereby certifies that attached hereto as Exhibit B is a true, correct, and complete copy of the Certificate of Incorporation of Driftwood CLO 2023-I, Ltd., issued by the Registrar of Companies of the Cayman Islands under Registration No. EX-382916 (the "Certificate of Incorporation").
The Issuer was duly incorporated as an exempted company with limited liability under the laws of the Cayman Islands on July 14, 2023. The Certificate of Incorporation has not been amended, revoked, suspended, or cancelled since its date of issuance, and the Issuer is validly existing and duly incorporated under the laws of the Cayman Islands. The Issuer is in good standing under the laws of the Cayman Islands, having paid all applicable registration fees and filed all required annual returns.
3.3 Certificate of Good Standing
The undersigned hereby certifies that attached hereto as Exhibit C is a Certificate of Good Standing dated on or about September 12, 2023, issued by the Registrar of Companies of the Cayman Islands with respect to Driftwood CLO 2023-I, Ltd. (the "Certificate of Good Standing"). The Certificate of Good Standing confirms that the Issuer is in good standing under the laws of the Cayman Islands as of the date set forth therein. To the knowledge of the undersigned, no event has occurred since the date of the Certificate of Good Standing that would cause the Issuer to cease to be in good standing under the laws of the Cayman Islands.
4. CERTIFICATION OF BOARD RESOLUTIONS
The undersigned hereby certifies that attached hereto as Exhibit D is a true, correct, and complete copy of the written resolutions of the Board of Directors of Driftwood CLO 2023-I, Ltd., adopted on August 20, 2023 (the "Resolutions").
The Resolutions were duly adopted by all of the directors of the Issuer by unanimous written consent in lieu of a meeting, in accordance with the Memorandum and Articles of Association of the Issuer and the applicable provisions of the Companies Act (as revised) of the Cayman Islands. Each director who executed the Resolutions was, at the time of such execution, a duly appointed director of the Issuer, duly authorized to act in such capacity.
The Resolutions have not been amended, modified, rescinded, or revoked in whole or in part, and remain in full force and effect as of the date hereof. No subsequent resolutions of the Board of Directors of the Issuer have been adopted that would amend, supersede, conflict with, or in any way limit the authority granted by the Resolutions.
Without limiting the generality of the foregoing, the Resolutions authorized, among other things, each of the following:
(a) Authorization of Transaction Documents. The execution, delivery, and performance by the Issuer of each of the Transaction Documents, including the Indenture, the First Supplemental Indenture, the Collateral Management Agreement, the Collateral Administration Agreement, the Co-Issuance Agreement, and the Note Purchase Agreement, and the consummation of the transactions contemplated thereby.
(b) Authorization of Issuance of Notes. The issuance by the Issuer (together with the Co-Issuer, as applicable) of up to $400,000,000 aggregate principal amount of Notes, comprising the following tranches:
(i) $256,000,000 aggregate principal amount of Class A-1 Notes;
(ii) $40,000,000 aggregate principal amount of Class A-2 Notes;
(iii) $28,000,000 aggregate principal amount of Class B Notes;
(iv) $24,000,000 aggregate principal amount of Class C Notes;
(v) $16,000,000 aggregate principal amount of Class D Notes; and
(vi) $36,000,000 aggregate principal amount of Subordinated Notes.
(c) Authorization of Security Interests. The grant by the Issuer of security interests in the Collateral (as defined in the Indenture) to Ironclad Trust Company, N.A., as Trustee, for the benefit of the Secured Parties (as defined in the Indenture), including all liens, pledges, and security interests contemplated by Article V of the Base Indenture.
(d) Engagement of Rating Agencies. The engagement of Brindoval Analytical Services Inc. and Ridgeline Credit Ratings LLC as rating agencies in connection with the rating of the Class A-1 Notes, Class A-2 Notes, Class B Notes, Class C Notes, and Class D Notes.
(e) Designation of Authorized Signatories. The designation of certain officers and directors of the Issuer as authorized signatories, empowered to execute and deliver, on behalf of the Issuer, any and all documents, instruments, certificates, agreements, notices, directions, and other writings in connection with the Transaction Documents and the transactions contemplated thereby.
(f) General Authorization. The authorization for any director or authorized signatory of the Issuer to take all such actions, and to execute and deliver all such documents, instruments, and certificates, as such director or authorized signatory may deem necessary, desirable, or advisable to effectuate the purposes and intent of the foregoing resolutions and the transactions contemplated by the Transaction Documents.
The undersigned further certifies that no other resolutions have been adopted by the Board of Directors of the Issuer, whether before or after August 20, 2023, that would in any way affect, modify, limit, impair, or conflict with the Resolutions or the authority granted thereby.
5. INCUMBENCY CERTIFICATION
The undersigned hereby certifies that each of the persons named below is, as of the date hereof, a duly elected or duly appointed officer or director of Driftwood CLO 2023-I, Ltd., holding the title set forth opposite his or her name in the table below. Each such person has been duly authorized pursuant to the Resolutions to execute and deliver, on behalf of the Issuer, the Transaction Documents and any and all related documents, instruments, certificates, agreements, notices, directions, and other writings contemplated by or delivered in connection with the Transaction Documents.
Each such person was duly holding the office or title set forth opposite his or her name at the time of execution of each Transaction Document executed by such person, and each such person continues to hold such office or title as of the date hereof. No such person has resigned, been removed, or otherwise ceased to hold such office or title at any time between the date of execution of the applicable Transaction Document and the date hereof.
The specimen signature set forth opposite each such person's name below is the true and genuine signature of such person:
The undersigned further certifies that, as of the date hereof, the foregoing persons constitute all of the directors and authorized signatories of the Issuer who have been authorized by the Resolutions to act on behalf of the Issuer in connection with the Transaction Documents.
6. FURTHER CERTIFICATIONS
6.1 No Amendments to Organizational Documents
The undersigned hereby certifies that the Memorandum and Articles of Association of the Issuer, a true, correct, and complete copy of which is attached hereto as Exhibit A, have not been amended, restated, supplemented, or otherwise modified since the date of their initial adoption and registration with the Registrar of Companies of the Cayman Islands. The Memorandum and Articles of Association are in full force and effect as of the date hereof and constitute the sole governing organizational documents of the Issuer. No proceedings have been commenced, and no resolutions have been proposed or adopted, for the purpose of amending, restating, or otherwise modifying the Memorandum and Articles of Association.
6.2 No Winding Up or Dissolution
The undersigned hereby certifies that no resolution has been passed, no petition has been presented, and no order has been made by any court or other governmental authority for the winding up, dissolution, or liquidation of the Issuer, whether voluntary or compulsory. No receiver, liquidator, provisional liquidator, administrator, administrative receiver, trustee in bankruptcy, or similar official has been appointed with respect to the Issuer or any of its assets, property, or undertakings, and no such appointment is pending, contemplated, or threatened. No analogous proceedings under the laws of any jurisdiction have been commenced or, to the knowledge of the undersigned, threatened with respect to the Issuer. The Issuer is not insolvent or unable to pay its debts as they fall due within the meaning of Section 93 of the Companies Act (as revised) of the Cayman Islands, and no facts or circumstances exist that would reasonably be expected to result in any of the foregoing.
6.3 Sole Member of Co-Issuer
The undersigned hereby certifies that Driftwood CLO 2023-I, Ltd. is the sole member and sole equity holder of Driftwood CLO 2023-I, LLC (the "Co-Issuer"), a limited liability company formed under the laws of the State of Delaware (DE File No. 7429831). In its capacity as the sole member of the Co-Issuer, the Issuer duly authorized the Co-Issuer to enter into, execute, deliver, and perform its obligations under the Indenture, the Co-Issuance Agreement, and each of the other Transaction Documents to which the Co-Issuer is a party, pursuant to a written consent of the sole member of the Co-Issuer dated as of August 20, 2023 (the "Sole Member Written Consent"). The Sole Member Written Consent was duly adopted in accordance with the Limited Liability Company Agreement of the Co-Issuer and the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq., and remains in full force and effect as of the date hereof without amendment, modification, rescission, or revocation.
6.4 Registered Office Confirmation
The undersigned hereby certifies that the registered office of the Issuer is, and at all times since the date of incorporation of the Issuer has been, located at PO Box 4927, Windward House, 3rd Floor, George Town, Grand Cayman KY1-1306, Cayman Islands. The registered agent of the Issuer at such address is Applegategate Offshore Services Ltd. No change of registered office or registered agent is pending, contemplated, or has been filed with the Registrar of Companies of the Cayman Islands.
7. RELIANCE
This Certificate is delivered by the undersigned on behalf of the Issuer for the benefit of, and may be relied upon by, each of the following persons and entities, together with their respective successors and assigns, in connection with the transactions contemplated by the Transaction Documents:
(a) Ironclad Trust Company, N.A., in its capacities as Trustee, Note Registrar, Paying Agent, Transfer Agent, Custodian, and Collateral Administrator under the Indenture and the Collateral Administration Agreement, with offices at 100 Wall Street, Suite 1650, New York, New York 10005 (Attention: Catherine Nowak, Vice President, Corporate Trust);
(b) Meridian Atlantic Securities LLC, in its capacity as Placement Agent under the Note Purchase Agreement, with offices at 383 Madison Avenue, 22nd Floor, New York, New York 10179 (Attention: Jonathan Halevy, Managing Director);
(c) Northbridge Capital Markets Inc., in its capacity as Co-Placement Agent under the Note Purchase Agreement, with offices at 1251 Avenue of the Americas, 34th Floor, New York, New York 10020 (Attention: Raymond Cho, Senior Vice President);
(d) Calderwood & Harkness LLP, in its capacity as counsel to the Issuer, with offices at 450 Park Avenue, New York, New York 10022;
(e) Barrington, Locke & Hayes LLP, in its capacity as counsel to the Placement Agent and the Co-Placement Agent, with offices at 601 Lexington Avenue, New York, New York 10022;
(f) Ashworth & Pratt LLP, in its capacity as counsel to the Trustee, with offices at One Liberty Plaza, 46th Floor, New York, New York 10006;
(g) the Holders of the Notes from time to time, in their capacities as such; and
(h) any other person or entity that is entitled to rely on this Certificate pursuant to the terms of the Indenture, the Note Purchase Agreement, or any other Transaction Document.
Each of the foregoing persons and entities shall be entitled to rely conclusively on the certifications, representations, and statements set forth in this Certificate as if this Certificate had been addressed and delivered directly to such person or entity. The undersigned acknowledges that each of the foregoing persons and entities will rely on this Certificate in connection with the consummation of the transactions contemplated by the Transaction Documents, including, without limitation, the purchase, sale, and issuance of the Notes on the Closing Date.
8. EXECUTION
IN WITNESS WHEREOF, the undersigned has duly executed this Director's Certificate on behalf of Driftwood CLO 2023-I, Ltd. as of September 12, 2023.
DRIFTWOOD CLO 2023-I, LTD.
By: ________
Name: Andrew R. Kilpatrick
Title: Director
Date: September 12, 2023
EXHIBIT A
MEMORANDUM AND ARTICLES OF ASSOCIATION
of
DRIFTWOOD CLO 2023-I, LTD.
(Cayman Islands Exempted Company — Registration No. EX-382916)
Prepared by:
Applegategate Offshore Services Ltd.
Attn: Nigel Pemberton, Partner
Windward House, 4th Floor George Town, Grand Cayman KY1-1306 Cayman Islands
In coordination with:
Calderwood & Harkness LLP 450 Park Avenue New York, New York 10022
[Memorandum and Articles of Association attached hereto]
EXHIBIT B
CERTIFICATE OF INCORPORATION
of
DRIFTWOOD CLO 2023-I, LTD.
Issued by the Registrar of Companies of the Cayman Islands
Registration No. EX-382916
[Certificate of Incorporation attached hereto]
EXHIBIT C
CERTIFICATE OF GOOD STANDING
of
DRIFTWOOD CLO 2023-I, LTD.
Issued by the Registrar of Companies of the Cayman Islands
Dated on or about September 12, 2023
[Certificate of Good Standing attached hereto]
EXHIBIT D
WRITTEN RESOLUTIONS OF THE BOARD OF DIRECTORS
of
DRIFTWOOD CLO 2023-I, LTD.
Adopted by Unanimous Written Consent on August 20, 2023
The Resolutions attached hereto include, without limitation, authorizations with respect to the following matters:
(a) Authorization of the execution, delivery, and performance by the Issuer of each Transaction Document, including the Indenture (dated as of August 22, 2023), the First Supplemental Indenture (dated as of September 8, 2023), the Collateral Management Agreement (dated as of August 22, 2023), the Collateral Administration Agreement (dated as of August 22, 2023), the Co-Issuance Agreement (dated as of August 22, 2023), and the Note Purchase Agreement (dated as of September 8, 2023);
(b) Authorization of the issuance of Notes in an aggregate principal amount of up to $400,000,000 across six tranches: $256,000,000 Class A-1 Notes, $40,000,000 Class A-2 Notes, $28,000,000 Class B Notes, $24,000,000 Class C Notes, $16,000,000 Class D Notes, and $36,000,000 Subordinated Notes;
(c) Authorization of the grant of security interests in the Collateral to Ironclad Trust Company, N.A., as Trustee, for the benefit of the Secured Parties;
(d) Authorization of the engagement of Brindoval Analytical Services Inc. and Ridgeline Credit Ratings LLC as rating agencies;
(e) Designation of authorized signatories by name and title, including Andrew R. Kilpatrick (Director), Sarah J. Whitmore (Director), and David M. Hargreaves (Authorized Signatory); and
(f) General authorization to take all actions and execute all documents necessary or advisable to effectuate the foregoing.
[Board Resolutions attached hereto]
| Name | Title | Specimen Signature |
| Andrew R. Kilpatrick | Director | ______ |
| Sarah J. Whitmore | Director | ______ |
| David M. Hargreaves | Authorized Signatory | ______ |