1024-00004 · Client 1024 · Warehouse Take-Out

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TERMINATION AND RELEASE AGREEMENT

Dated as of September 12, 2023

among

DRIFTWOOD CLO 2023-I, LTD. an exempted company incorporated with limited liability under the laws of the Cayman Islands as Borrower

DRIFTWOOD CREDIT MANAGEMENT LLC a Delaware limited liability company as Collateral Manager

and

HAVENWOOD BANK, NATIONAL ASSOCIATION a national banking association as Lender

Reference: Warehouse Credit Facility Agreement dated as of May 22, 2023

TERMINATION AND RELEASE AGREEMENT

This TERMINATION AND RELEASE AGREEMENT (this "Agreement") is dated as of September 12, 2023, and is entered into by and among:

(1) DRIFTWOOD CLO 2023-I, LTD., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Borrower" or the "Issuer");

(2) DRIFTWOOD CREDIT MANAGEMENT LLC, a Delaware limited liability company (the "Collateral Manager" or "DCM"); and

(3) HAVENWOOD BANK, NATIONAL ASSOCIATION, a national banking association (the "Lender" or "Havenwood Bank").

Each of the Borrower, the Collateral Manager, and the Lender is referred to herein individually as a "Party" and collectively as the "Parties."

RECITALS

WHEREAS:

A. The Borrower, the Collateral Manager, and the Lender entered into that certain Warehouse Credit Facility Agreement dated as of May 22, 2023 (as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof, the "Warehouse Agreement"), pursuant to which the Lender made available to the Borrower a revolving credit facility in an aggregate principal amount of Two Hundred Fifty Million Dollars ($250,000,000) (the "Facility"). The Facility bore interest at a rate equal to Compounded SOFR (as defined in the Warehouse Agreement) plus 150 basis points per annum, and the Lender advanced funds at an advance rate of eighty-five percent (85%) of the par value of eligible collateral, all as more particularly set forth in the Warehouse Agreement. The Collateral Manager acted as collateral manager under the Warehouse Agreement and was responsible for the selection, acquisition, and trading of collateral assets in accordance with the eligibility criteria, portfolio constraints, and investment guidelines established thereunder.

B. The Facility was established for the purpose of financing the acquisition and warehousing of a portfolio comprised primarily of broadly syndicated first-lien senior secured leveraged loans (principally of U.S. corporate obligors) in anticipation of a broadly syndicated collateralized loan obligation transaction. The warehouse ramp period commenced on or about May 25, 2023, at which time the first collateral purchases were funded under the Facility, and continued in accordance with the terms of the Warehouse Agreement through the date hereof.

C. The Borrower (as co-issuer) and Driftwood CLO 2023-I, LLC, a Delaware limited liability company (the "Co-Issuer"), have consummated a Four Hundred Million Dollar ($400,000,000) collateralized loan obligation transaction designated "Driftwood CLO 2023-I" (the "CLO Transaction"). The CLO Transaction involves the issuance of multiple tranches of secured notes and subordinated notes pursuant to an Indenture dated as of August 22, 2023 (the "Indenture"), among the Borrower, as Issuer, the Co-Issuer, and Ironclad Trust Company, N.A., a national trust company, as Trustee (the "Trustee"). The closing of the CLO Transaction occurred on September 12, 2023 (the "Closing Date"). A portion of the proceeds of the secured notes and subordinated notes issued in the CLO Transaction (the "CLO Notes") has been applied on the date hereof to repay in full all outstanding amounts under the Warehouse Agreement, including the outstanding principal balance of Two Hundred Twelve Million Five Hundred Thousand Dollars ($212,500,000), together with all accrued and unpaid interest, fees, and other amounts owing thereunder.

D. The Lender has received, on the date hereof, full payment of all Obligations (as defined in the Warehouse Agreement), including the outstanding principal balance, all accrued and unpaid interest thereon, and all fees, costs, and expenses, in immediately available funds, in accordance with and as required by that certain payoff letter dated September 12, 2023, delivered by the Lender to the Borrower and to Calderwood & Harkness LLP, counsel to the Borrower (the "Payoff Letter"). The Parties now desire to terminate the Warehouse Agreement and all related ancillary documents and to release all liens, security interests, and other encumbrances granted by the Borrower and the Collateral Manager in favor of the Lender in connection with the Warehouse Agreement and the transactions contemplated thereby.

E. Driftwood Credit Management LLC, a Delaware limited liability company and SEC-registered investment adviser (CRD #182447), with its principal office at 200 Brickell Avenue, Suite 3100, Miami, Florida 33131, joined in the Warehouse Agreement as Collateral Manager and is a party hereto for purposes of confirming the release of its obligations thereunder and the mutual release of claims among the Parties as contemplated herein.

NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:

"Agreement" means this Termination and Release Agreement, dated as of September 12, 2023, among the Borrower, the Collateral Manager, and the Lender, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.

"Borrower" means Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (Registration No. EX-382916).

"CLO Notes" means the secured notes and subordinated notes issued by the Issuer and the Co-Issuer pursuant to the Indenture in connection with the CLO Transaction.

"CLO Transaction" means the $400,000,000 collateralized loan obligation transaction designated "Driftwood CLO 2023-I," consummated on the Closing Date pursuant to the Indenture and related transaction documents.

"Closing Date" means September 12, 2023, being the closing date of both the CLO Transaction and this Agreement.

"Collateral" means all assets, securities, accounts, instruments, general intangibles, investment property, deposit accounts, and other property of any kind pledged, assigned, hypothecated, or granted as security under the Warehouse Agreement and the Security Documents in favor of the Lender, including all proceeds thereof.

"Collateral Manager" means Driftwood Credit Management LLC, a Delaware limited liability company and SEC-registered investment adviser (CRD #182447), with its principal office at 200 Brickell Avenue, Suite 3100, Miami, Florida 33131.

"Co-Issuer" means Driftwood CLO 2023-I, LLC, a Delaware limited liability company.

"Facility" means the $250,000,000 revolving credit facility established under the Warehouse Agreement.

"Indenture" means the Indenture dated as of August 22, 2023, among the Issuer, the Co-Issuer, and Ironclad Trust Company, N.A., as Trustee, as supplemented by any supplemental indentures entered into in connection with the CLO Transaction.

"Issuer" means Driftwood CLO 2023-I, Ltd., in its capacity as issuer under the Indenture.

"Lender" means Havenwood Bank, National Association, a national banking association, with its principal office at 227 West Monroe Street, Chicago, Illinois 60606.

"Liens" has the meaning set forth in Section 4.1.

"Obligations" means all principal, interest, fees, expenses, indemnification amounts, and all other amounts of any kind owed by the Borrower or the Collateral Manager to the Lender under or in connection with the Warehouse Agreement and the Security Documents.

"Outstanding Balance" means $212,500,000, being the outstanding principal balance under the Warehouse Agreement at the time of repayment on the date hereof.

"Payoff Amount" means the aggregate amount required to satisfy all Obligations in full, as set forth in the Payoff Letter, including the Outstanding Balance, all accrued and unpaid interest, and all fees, costs, and expenses.

"Payoff Letter" means the payoff letter dated September 12, 2023, issued by the Lender to the Borrower and Calderwood & Harkness LLP, a copy of which is attached hereto as Exhibit A and incorporated herein by reference.

"Security Documents" means, collectively, all pledge agreements, security agreements, account control agreements, UCC financing statements, and all other documents, instruments, or agreements executed and delivered in connection with the Warehouse Agreement granting or purporting to grant liens or security interests to the Lender in any Collateral, each as more specifically identified in Exhibit B hereto.

"Trustee" means Ironclad Trust Company, N.A., a national trust company, with its principal corporate trust office at 100 Wall Street, Suite 1650, New York, New York 10005, in its capacity as trustee and custodian under the Indenture.

"Warehouse Agreement" means the Warehouse Credit Facility Agreement dated as of May 22, 2023, among the Borrower, the Collateral Manager, and the Lender, as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof.

Section 1.2 — Interpretation. Unless otherwise defined herein, capitalized terms used but not defined in this Agreement shall have the respective meanings given to such terms in the Warehouse Agreement. In this Agreement, unless the context otherwise requires:

(a) words importing the singular shall include the plural and vice versa, and words importing a gender shall include each gender;

(b) references to "Articles," "Sections," "Exhibits," and "Schedules" are references to articles, sections, exhibits, and schedules of or to this Agreement unless otherwise specified;

(c) references to any agreement or document (including this Agreement) shall be construed as references to such agreement or document as amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms;

(d) references to any person shall include such person's successors and permitted assigns;

(e) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation";

(f) section headings and captions are inserted for convenience of reference only and shall not affect the construction or interpretation of any provision of this Agreement;

(g) references to "herein," "hereof," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision; and

(h) references to any statute or regulation shall be construed as references to such statute or regulation as from time to time amended, supplemented, or re-enacted.

ARTICLE II — ACKNOWLEDGMENT OF REPAYMENT AND SATISFACTION

Section 2.1 — Acknowledgment of Full Repayment. The Lender hereby acknowledges and confirms that it has received, on September 12, 2023, in immediately available funds by wire transfer to its account in accordance with the wire instructions set forth in the Payoff Letter, full and final payment of the Payoff Amount in complete satisfaction of all Obligations under the Warehouse Agreement. The Payoff Amount received by the Lender includes payment in full of each of the following:

(a) the outstanding principal balance of Two Hundred Twelve Million Five Hundred Thousand Dollars ($212,500,000);

(b) all accrued and unpaid interest thereon through and including the Closing Date at the applicable rate of Compounded SOFR plus 150 basis points per annum, as calculated in accordance with the terms of the Warehouse Agreement;

(c) all fees, costs, and expenses due and payable under the Warehouse Agreement and the Security Documents, including any commitment fees, facility fees, unused fees, and legal fees and expenses of the Lender's counsel, Kenton & Caldwell LLP, incurred in connection with the Warehouse Agreement and the transactions contemplated hereby; and

(d) all other amounts constituting Obligations under the Warehouse Agreement, including any amounts payable under any indemnification provisions of the Warehouse Agreement that have accrued or become payable as of the date hereof.

The wire transfer of the Payoff Amount was made by or on behalf of the Borrower to the account of Havenwood Bank, National Association, at the receiving bank and account specified in the Payoff Letter, and the Lender confirms receipt of such wire transfer in the full amount set forth therein.

Section 2.2 — Confirmation of Satisfaction. The Lender hereby confirms that, upon receipt of the Payoff Amount as described in Section 2.1, all Obligations of the Borrower and the Collateral Manager under or in connection with the Warehouse Agreement and the Security Documents have been indefeasibly paid in full and satisfied in their entirety. No further amounts are or shall become due or owing by the Borrower or the Collateral Manager to the Lender under or in connection with the Warehouse Agreement, any Security Document, or any other agreement, instrument, or document executed in connection therewith (other than obligations that expressly survive termination as described in Section 3.3 hereof). The Lender has no further claim against the Borrower, the Collateral Manager, or any of their respective assets, properties, or revenues in respect of the Obligations or otherwise arising out of or relating to the Warehouse Agreement or the Security Documents (other than as expressly set forth in Section 3.3 and Section 6.1 hereof).

ARTICLE III — TERMINATION OF WAREHOUSE AGREEMENT AND RELATED DOCUMENTS

Section 3.1 — Termination of Warehouse Agreement. Effective as of the date hereof, the Warehouse Agreement is hereby terminated in its entirety and shall be of no further force or effect, except as expressly set forth in Section 3.3 hereof. All commitments of the Lender to make advances, extend credit, or otherwise make funds available to the Borrower under the Warehouse Agreement are, as of the date hereof, irrevocably terminated and cancelled, and no Party shall have any obligation to make any further advances or borrowings thereunder. The Facility amount of $250,000,000 is hereby permanently reduced to zero, and no further borrowings, revolving advances, or other extensions of credit shall be made or available thereunder.

Section 3.2 — Termination of Ancillary and Security Documents. Effective as of the date hereof, each of the following documents and agreements executed, delivered, or entered into in connection with the Warehouse Agreement is hereby terminated in its entirety and shall be of no further force or effect, except as expressly set forth in Section 3.3 hereof:

(a) all pledge agreements and security agreements, including the Pledge and Security Agreement dated as of May 22, 2023, among the Borrower, the Collateral Manager, and the Lender, granting liens and security interests in the Collateral to the Lender;

(b) all account control agreements with respect to warehouse collateral accounts, collection accounts, and any other deposit accounts or securities accounts maintained in connection with the Facility, including the Account Control Agreement dated as of May 22, 2023, among the Borrower, the Lender, and Havenwood Bank, N.A. (in its capacity as account bank);

(c) all side letters, fee letters, and ancillary agreements entered into between or among any of the Parties in connection with the Warehouse Agreement, including any letter agreements relating to warehouse economics, collateral eligibility, or trading guidelines; and

(d) all guaranties, if any, delivered in connection with the Warehouse Agreement by the Collateral Manager or any affiliate of the Borrower.

Each Security Document terminated pursuant to this Section 3.2 is identified on Exhibit B hereto. The termination of such documents shall not, however, affect any rights or obligations arising thereunder prior to such termination to the extent such rights or obligations expressly survive in accordance with Section 3.3 hereof.

Section 3.3 — Survival. Notwithstanding the termination of the Warehouse Agreement and the Security Documents pursuant to Sections 3.1 and 3.2 hereof, the following provisions shall survive such termination solely to the extent expressly provided therein:

(a) indemnification obligations of the Borrower and the Collateral Manager in favor of the Lender and its Indemnified Persons (as defined in the Warehouse Agreement), solely with respect to claims, losses, liabilities, or expenses arising out of events, acts, or omissions that occurred prior to the date hereof, subject in all cases to the terms, conditions, and limitations set forth in the applicable indemnification provisions of the Warehouse Agreement (including, without limitation, any limitations on scope, any requirements for notice and opportunity to defend, and any caps or other limitations on liability expressly set forth therein);

(b) the confidentiality obligations of each Party set forth in the Warehouse Agreement, which shall continue in full force and effect in accordance with their respective terms for the periods specified therein; and

(c) any other provisions of the Warehouse Agreement that, by their express terms, are stated to survive the termination of the Warehouse Agreement.

For the avoidance of doubt, all other rights, obligations, covenants, agreements, representations, and warranties under the Warehouse Agreement and the Security Documents are hereby terminated and of no further force or effect as of the date hereof, and no Party shall have any liability therefor except as expressly provided in this Agreement.

ARTICLE IV — RELEASE OF COLLATERAL AND SECURITY INTERESTS

Section 4.1 — Release of Liens and Security Interests. The Lender hereby unconditionally and irrevocably releases, discharges, and terminates all liens, security interests, pledges, assignments, mortgages, charges, hypothecations, and encumbrances of any kind, whether arising by contract, operation of law, or otherwise (collectively, "Liens"), granted by or on behalf of the Borrower and/or the Collateral Manager in favor of the Lender pursuant to the Warehouse Agreement and the Security Documents, in and to all Collateral and all other assets and property of the Borrower and the Collateral Manager, whether now existing or hereafter acquired, that were subject to any such Lien. Such release, discharge, and termination shall be effective immediately as of the date hereof and without the necessity of any further action by any Party. The Collateral released, discharged, and freed from all Liens pursuant to this Section 4.1 includes, without limitation, the following:

(a) all broadly syndicated first-lien senior secured leveraged loans and other debt obligations acquired and held in the warehouse portfolio, including all right, title, and interest of the Borrower in and to the loan agreements, credit agreements, and other instruments evidencing such obligations and all related security, guarantees, and collateral;

(b) all warehouse collateral accounts, collection accounts, principal accounts, interest accounts, and any other deposit accounts or securities accounts maintained at Havenwood Bank, N.A. or any other financial institution in connection with the Facility;

(c) all cash, cash equivalents, money market instruments, and investment property held in any such accounts as of the date hereof;

(d) all proceeds, distributions, payments, collections, income, and other amounts received or receivable in respect of the foregoing Collateral, whether received before, on, or after the date hereof;

(e) all books, records, files, and documentation (whether in physical or electronic form) relating to the foregoing Collateral, including all trade confirmations, settlement records, and related correspondence; and

(f) all other property and assets of every kind and description, wherever located, that were subject to any Lien granted to the Lender in connection with the Warehouse Agreement or any Security Document.

Section 4.2 — UCC Termination Statements. The Lender hereby authorizes the Borrower (and/or its counsel, Calderwood & Harkness LLP) to prepare and file, at the Borrower's sole cost and expense, UCC-3 termination statements in all applicable jurisdictions with respect to all UCC-1 financing statements filed by or on behalf of the Lender naming the Borrower and/or the Collateral Manager as debtor in connection with the Warehouse Agreement and the Security Documents. A form of UCC-3 termination statement is attached hereto as Exhibit C. The Lender agrees to execute and deliver, promptly upon the reasonable request of the Borrower, any additional UCC-3 termination statements, lien releases, discharge instruments, or other documents or instruments as may be reasonably necessary or desirable to evidence and effectuate the release and termination of all Liens in any applicable jurisdiction. The Lender further acknowledges that the Borrower and its counsel are authorized to act as the Lender's agent for the limited purpose of filing such UCC-3 termination statements without further consent or authorization from the Lender.

Section 4.3 — Return of Possessory Collateral. To the extent the Lender holds, or has in its possession or under its control, any possessory collateral in connection with the Warehouse Agreement, including original promissory notes, instruments, securities certificates, stock powers, or other negotiable or non-negotiable documents of title, the Lender shall, within five (5) business days following the date hereof, deliver or cause to be delivered all such items to Ironclad Trust Company, N.A. (in its capacity as Trustee and custodian under the Indenture) at its principal corporate trust office at 100 Wall Street, Suite 1650, New York, New York 10005, or to such other person or address as may be directed by the Borrower in writing. The Lender represents that, as of the date hereof, it does not hold any original promissory notes, instruments, or securities certificates constituting Collateral, it being understood that all such items are held by the custodian appointed under the Warehouse Agreement.

Section 4.4 — Account Closure or Redesignation. With respect to any collateral accounts, collection accounts, or other deposit accounts or securities accounts maintained at Havenwood Bank, N.A. in connection with the Warehouse Agreement, the Parties agree as follows:

(a) Any such accounts that are no longer required in connection with the CLO Transaction or the ongoing operations of the Issuer shall be closed promptly following the transfer of all funds, securities, and other assets held therein, and Havenwood Bank, N.A. shall cooperate in effecting such closures upon the direction of the Borrower or its authorized representative.

(b) To the extent any such accounts will continue to be used as accounts of the Issuer in connection with the CLO Transaction (with Havenwood Bank, N.A. acting as account bank under the Indenture), the account control agreements in favor of the Lender executed pursuant to the Warehouse Agreement shall be deemed terminated and superseded in their entirety by account control agreements entered into, or to be entered into, in favor of the Trustee, Ironclad Trust Company, N.A., as applicable under the Indenture and related CLO Transaction documents. The Lender hereby acknowledges and agrees that it shall have no further rights or interests in or to any such accounts, and that all rights of control or dominion with respect thereto shall vest exclusively in the Trustee in accordance with the terms of the Indenture.

Section 4.5 — Assignment of Collateral. The Parties acknowledge and agree that the assignment, transfer, and conveyance of all collateral assets from the warehouse portfolio to Driftwood CLO 2023-I, Ltd. (in its capacity as Issuer under the Indenture) has been effectuated on the date hereof pursuant to a separate Assignment of Collateral Agreement dated September 12, 2023 (the "Assignment Agreement"), and that such collateral assets are now subject to, and encumbered by, the lien of the Indenture in favor of Ironclad Trust Company, N.A., as Trustee, for the benefit of the holders of the CLO Notes (the "Noteholders"). Nothing in this Agreement shall be construed to modify, amend, or supersede the terms of the Assignment Agreement or the Indenture with respect to such collateral assets.

ARTICLE V — REPRESENTATIONS AND WARRANTIES

Section 5.1 — Representations and Warranties of the Lender. Havenwood Bank, National Association hereby represents and warrants to each of the Borrower and the Collateral Manager, as of the date hereof, as follows:

(a) Organization and Good Standing. It is a national banking association duly organized, validly existing, and in good standing under the laws of the United States, and has all requisite corporate power and authority to own its properties and conduct its business as currently conducted.

(b) Power and Authority. It has full power, authority, and legal right to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby, including the release of all Liens and the termination of all Security Documents.

(c) Authorization; Due Execution. The execution and delivery of this Agreement, the performance of its obligations hereunder, and the release of all Liens have been duly authorized by all necessary corporate action on the part of the Lender, and no further corporate proceedings or approvals are necessary for the execution, delivery, or performance of this Agreement.

(d) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Lender, enforceable against the Lender in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.

(e) Receipt of Payoff Amount. It has received, on the date hereof, the Payoff Amount in full and final satisfaction of all Obligations owing by the Borrower and the Collateral Manager under or in connection with the Warehouse Agreement and the Security Documents.

(f) No Further Liens or Claims. Upon the effectiveness of this Agreement, it has no further Liens on, or security interests in, or claims to, any Collateral or any other assets or property of the Borrower or the Collateral Manager arising under or in connection with the Warehouse Agreement or any Security Document.

(g) No Assignment. It has not assigned, transferred, pledged, or otherwise conveyed to any third party any of its rights under the Warehouse Agreement or the Security Documents, or any interest in the Obligations or the Collateral, and it remains the sole holder of all rights thereunder as of the date hereof.

Section 5.2 — Representations and Warranties of the Borrower. Driftwood CLO 2023-I, Ltd. hereby represents and warrants to the Lender and the Collateral Manager, as of the date hereof, as follows:

(a) Organization and Good Standing. It is an exempted company duly incorporated, validly existing, and in good standing 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.

(b) Power and Authority. It has full power, authority, and legal right to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.

(c) Authorization; Due Execution. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate action on the part of the Borrower, including board resolutions dated August 20, 2023, and no further corporate proceedings, consents, or approvals are necessary for the execution, delivery, or performance hereof.

(d) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.

(e) No Conflict. The execution, delivery, and performance of this Agreement do not and will not (i) violate or conflict with the memorandum and articles of association of the Borrower, (ii) violate any law, rule, or regulation applicable to the Borrower, or (iii) result in a breach of, or constitute a default under, any material agreement or instrument to which the Borrower is a party, including the Indenture.

Section 5.3 — Representations and Warranties of the Collateral Manager. Driftwood Credit Management LLC hereby represents and warrants to the Lender and the Borrower, as of the date hereof, as follows:

(a) Organization and Good Standing. It is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to own its properties and conduct its business as currently conducted.

(b) Registration as Investment Adviser. It is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (CRD #182447), with its principal office at 200 Brickell Avenue, Suite 3100, Miami, Florida 33131, and such registration has not been revoked, suspended, or made subject to any material limitation or condition.

(c) Power and Authority. It has full power, authority, and legal right to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.

(d) Authorization; Due Execution. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary limited liability company action on the part of the Collateral Manager, including all requisite approvals of its members and/or managers, and no further proceedings, consents, or approvals are necessary for the execution, delivery, or performance hereof.

(e) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Collateral Manager, enforceable against the Collateral Manager in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.

ARTICLE VI — MUTUAL RELEASE

Section 6.1 — Release by the Lender. Effective as of the date hereof, the Lender, for itself and on behalf of its successors, assigns, parents, subsidiaries, affiliates, officers, directors, employees, agents, and representatives (collectively, the "Lender Releasing Parties"), hereby fully, finally, unconditionally, and irrevocably releases, acquits, and forever discharges the Borrower, the Collateral Manager, and each of their respective affiliates, partners, members, managers, officers, directors, employees, agents, representatives, successors, and assigns (collectively, the "Borrower/CM Released Parties") from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, demands, obligations, liabilities, losses, costs, or expenses of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown, suspected or unsuspected, matured or unmatured, fixed or contingent, liquidated or unliquidated, arising out of, relating to, or in connection with the Warehouse Agreement and the Security Documents and the transactions contemplated thereby; provided, however, that this release shall not apply to:

(a) claims arising under the surviving indemnification provisions described in Section 3.3(a) hereof, solely to the extent arising from events, acts, or omissions occurring prior to the date hereof and subject in all respects to the terms and limitations set forth in the Warehouse Agreement; and

(b) claims arising under this Agreement, including claims for breach of any representation, warranty, covenant, or agreement set forth herein.

Section 6.2 — Release by the Borrower and the Collateral Manager. Effective as of the date hereof, each of the Borrower and the Collateral Manager, for itself and on behalf of its respective successors, assigns, affiliates, partners, members, managers, officers, directors, employees, agents, and representatives (collectively, the "Borrower/CM Releasing Parties"), hereby fully, finally, unconditionally, and irrevocably releases, acquits, and forever discharges the Lender and its parents, subsidiaries, affiliates, officers, directors, employees, agents, representatives, successors, and assigns (collectively, the "Lender Released Parties") from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, demands, obligations, liabilities, losses, costs, or expenses of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown, suspected or unsuspected, matured or unmatured, fixed or contingent, liquidated or unliquidated, arising out of, relating to, or in connection with the Warehouse Agreement and the Security Documents and the transactions contemplated thereby; provided, however, that this release shall not apply to:

(a) claims arising under the surviving provisions described in Section 3.3 hereof, solely to the extent arising from events, acts, or omissions occurring prior to the date hereof and subject in all respects to the terms and limitations set forth in the Warehouse Agreement;

(b) claims arising under this Agreement, including claims for breach of any representation, warranty, covenant, or agreement set forth herein; and

(c) the Lender's obligations under Article IV hereof, including its obligations to effect the release of all Liens, to authorize and cooperate in the filing of UCC-3 termination statements, to return all possessory collateral, and to cooperate in the closure or redesignation of collateral accounts as contemplated therein.

ARTICLE VII — ADDITIONAL COVENANTS AND AGREEMENTS

Section 7.1 — Further Assurances. Each Party hereto agrees to execute and deliver, or cause to be executed and delivered, from time to time following the date hereof, such additional instruments, documents, certificates, assurances, and agreements as may be reasonably requested by any other Party hereto in order to carry out the purposes and intent of this Agreement, including the full and complete release and termination of all Liens and the filing of all necessary UCC-3 termination statements, lien releases, and other release documentation in all applicable jurisdictions. Each Party shall bear its own costs and expenses in connection with the preparation and execution of such additional instruments and documents, except as otherwise expressly provided herein.

Section 7.2 — Cooperation Regarding Regulatory and Tax Matters. The Parties shall cooperate with each other in good faith and in a timely manner as reasonably requested in connection with any regulatory inquiries, examinations, audits, tax filings, or other regulatory or tax matters relating to the Warehouse Agreement, the Facility, or the transactions contemplated thereby for any period during which the Facility was outstanding (i.e., from May 22, 2023, through September 12, 2023, inclusive). Such cooperation shall include, without limitation, the provision of access to relevant records, documents, and information, the making available of relevant personnel for interviews or testimony, and the execution of such consents, authorizations, and certifications as may be reasonably necessary. Each Party shall bear its own costs and expenses in connection with any such cooperation, unless otherwise agreed in writing by the Parties.

Section 7.3 — Record Retention. Each Party shall retain, in accordance with its customary document retention policies, complete copies of the Warehouse Agreement, the Security Documents, and all related transaction records, correspondence, trade confirmations, and settlement documentation for a period of not less than the greater of (a) seven (7) years from the date hereof or (b) such longer period as may be required by applicable law, regulation, or the rules of any self-regulatory organization to which such Party is subject. No Party shall destroy or dispose of any such records prior to the expiration of the applicable retention period without providing at least thirty (30) days' prior written notice to each other Party, during which time such other Party may request copies of any records proposed to be destroyed.

ARTICLE VIII — MISCELLANEOUS

Section 8.1 — Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to conflicts of law principles thereof (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law, which shall apply).

Section 8.2 — Jurisdiction; Service of Process; Waiver of Jury Trial.

(a) Submission to Jurisdiction. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the United States District Court for the Southern District of New York and of the Supreme Court of the State of New York, County of New York (and any appellate courts thereof), for the purposes of any suit, action, or proceeding arising out of or relating to this Agreement, and agrees that all claims in respect of any such suit, action, or proceeding may be heard and determined in any such court.

(b) Waiver of Objection. Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or relating to this Agreement in any such court, and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.

(c) Service of Process. Each Party irrevocably consents to service of process in the manner provided for notices in Section 8.8 hereof. Nothing herein shall affect the right of any Party to serve process in any other manner permitted by applicable law.

(d) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES THIS WAIVER VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 8.2(d).

Section 8.3 — Entire Agreement. This Agreement, together with the Payoff Letter and the Exhibits attached hereto, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, agreements, and understandings (whether written or oral) relating to the termination of the Warehouse Agreement, the release of the Collateral, and the other matters set forth herein. No Party has relied on any representation or warranty not expressly set forth in this Agreement in entering into this Agreement.

Section 8.4 — Amendments and Waivers. No provision of this Agreement may be amended, modified, supplemented, or waived except by an instrument in writing executed and delivered by each of the Parties hereto. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.

Section 8.5 — Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the Parties shall endeavor in good faith to replace such invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.

Section 8.6 — Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile, electronic signature, or portable document format (PDF) transmission), each of which when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, electronic signature (including Brightwater Software or similar platforms), or PDF transmission shall be effective as delivery of a manually executed original counterpart.

Section 8.7 — Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. No Party may assign its rights or obligations under this Agreement without the prior written consent of each other Party, except that the Lender may assign its rights hereunder (including the benefit of the mutual release) to any successor in interest by merger, consolidation, or acquisition of substantially all of its assets.

Section 8.8 — Notices. All notices, requests, demands, consents, and other communications required or permitted hereunder shall be in writing and shall be deemed duly given (a) when delivered in person, (b) when sent by confirmed electronic mail (with a copy sent by another method specified in this Section 8.8), (c) one (1) business day after being sent by nationally recognized overnight courier service, or (d) three (3) business days after being mailed by registered or certified mail, return receipt requested, postage prepaid, in each case addressed to the applicable Party at the address set forth below (or at such other address as such Party may have designated by prior notice in accordance with this Section 8.8):

If to the Borrower:

Driftwood CLO 2023-I, Ltd. PO Box 4927, Windward House, 3rd Floor George Town, Grand Cayman KY1-1306 Cayman Islands

with a copy (which shall not constitute notice) to:

Driftwood Credit Management LLC 200 Brickell Avenue, Suite 3100 Miami, Florida 33131

Attention: David Hwan, Managing Director, Structured Credit

If to the Collateral Manager:

Driftwood Credit Management LLC 200 Brickell Avenue, Suite 3100 Miami, Florida 33131

Attention: Elena Voss, President & Chief Operating Officer

If to the Lender:

Havenwood Bank, National Association 227 West Monroe Street Chicago, Illinois 60606

Attention: Thomas Eriksen, Managing Director, Structured Finance Lending

With a copy (which shall not constitute notice) to Borrower's counsel:

Calderwood & Harkness LLP 450 Park Avenue New York, New York 10022

Attention: Samuel Eklund

With a copy (which shall not constitute notice) to Lender's counsel:

Kenton & Caldwell LLP 200 Park Avenue New York, New York 10166

Attention: Victor Salazar

Section 8.9 — No Third-Party Beneficiaries. Except as expressly provided in this Section 8.9, this Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns, and nothing contained herein, whether express or implied, shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that Ironclad Trust Company, N.A. (in its capacity as Trustee under the Indenture) shall be an express third-party beneficiary of the release provisions set forth in Article IV hereof, solely to the extent of its interest in the Collateral as Trustee for the benefit of the Noteholders, and shall be entitled to enforce the provisions of Article IV directly against the Lender to the extent necessary to protect its lien on the Collateral under the Indenture.

Section 8.10 — Headings. The article and section headings, captions, and table of contents (if any) contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.

[Remainder of this page intentionally left blank. Signature pages follow.]

SIGNATURE PAGES TO TERMINATION AND RELEASE AGREEMENT

IN WITNESS WHEREOF, the Parties hereto have caused this Termination and Release Agreement to be duly executed and delivered by their respective authorized officers or representatives as of the date first written above.

DRIFTWOOD CLO 2023-I, LTD. as Borrower

By: ________

Name: Authorized Signatory

Title: Director

Date: September 12, 2023

DRIFTWOOD CREDIT MANAGEMENT LLC as Collateral Manager

By: ________

Name: Marcus Sorensen

Title: Founder & Chief Investment Officer

Date: September 12, 2023

HAVENWOOD BANK, NATIONAL ASSOCIATION as Lender

By: ________

Name: Thomas Eriksen

Title: Managing Director, Structured Finance Lending

Date: September 12, 2023

EXHIBIT A

PAYOFF LETTER

The following is incorporated herein by reference:

Payoff Letter dated September 12, 2023, issued by Havenwood Bank, National Association to Driftwood CLO 2023-I, Ltd. and Calderwood & Harkness LLP.

Confirmation of Payoff Amount. The Payoff Letter confirms that the aggregate Payoff Amount required to satisfy all Obligations under the Warehouse Agreement in full consists of the following:

Wire Instructions. The Payoff Amount was wired to the account of Havenwood Bank, National Association in accordance with the wire instructions set forth in the Payoff Letter. The specific wire instructions (including ABA routing number, account number, and reference information) are contained in the original Payoff Letter and are not reproduced herein for security purposes.

Statement of Incorporation. The Payoff Letter dated September 12, 2023 is attached hereto and incorporated herein by reference as if set forth in full. In the event of any conflict between the terms of this Agreement and the terms of the Payoff Letter, the terms of this Agreement shall control.

EXHIBIT B

LIST OF SECURITY DOCUMENTS BEING TERMINATED

Pursuant to Section 3.2 of this Agreement, each of the following Security Documents, executed and delivered in connection with the Warehouse Agreement, is hereby terminated in its entirety and shall be of no further force or effect as of September 12, 2023:

Each of the foregoing documents is hereby terminated and of no further force or effect as of the date of this Agreement, and no Party shall have any continuing rights, obligations, or liabilities thereunder, except to the extent expressly set forth in Section 3.3 of this Agreement.

EXHIBIT C

FORM OF UCC-3 TERMINATION STATEMENT

UCC FINANCING STATEMENT AMENDMENT (FORM UCC-3)

Amendment Type: Termination

Initial Financing Statement File Number: 2023-3847291

Filing Office: Delaware Secretary of State

Date of Filing of Initial Financing Statement: May 24, 2023

Debtor:

Driftwood CLO 2023-I, Ltd. PO Box 4927, Windward House, 3rd Floor George Town, Grand Cayman KY1-1306 Cayman Islands

Organization ID: EX-382916 (Cayman Islands)

Secured Party:

Havenwood Bank, National Association 227 West Monroe Street Chicago, Illinois 60606

This Financing Statement Amendment is filed to terminate the effectiveness of the above-referenced initial financing statement.

The Secured Party, Havenwood Bank, National Association, hereby authorizes the filing of this UCC-3 Termination Statement. All obligations secured by the above-referenced financing statement have been indefeasibly paid in full and satisfied, and the Secured Party has no further security interest in the collateral described therein.

Authorization: The Borrower's counsel, Calderwood & Harkness LLP, is authorized to file this UCC-3 Termination Statement on behalf of the Secured Party, Havenwood Bank, National Association, pursuant to the authorization granted in Section 4.2 of the Termination and Release Agreement dated as of September 12, 2023, among Driftwood CLO 2023-I, Ltd., Driftwood Credit Management LLC, and Havenwood Bank, National Association.

A substantially similar UCC-3 Termination Statement shall be prepared and filed with respect to each additional UCC-1 Financing Statement identified in Exhibit B (including File No. 2023-3847306 naming Driftwood Credit Management LLC as debtor), with appropriate modifications to reflect the applicable debtor name, file number, and filing jurisdiction.

End of Exhibit C

[End of Termination and Release Agreement]

TERMINATION AND RELEASE AGREEMENT
Dated as of September 12, 2023
among
DRIFTWOOD CLO 2023-I, LTD. an exempted company incorporated with limited liability under the laws of the Cayman Islands as Borrower
DRIFTWOOD CREDIT MANAGEMENT LLC a Delaware limited liability company as Collateral Manager
and
HAVENWOOD BANK, NATIONAL ASSOCIATION a national banking association as Lender
Reference: Warehouse Credit Facility Agreement dated as of May 22, 2023
TERMINATION AND RELEASE AGREEMENT
This TERMINATION AND RELEASE AGREEMENT (this "Agreement") is dated as of September 12, 2023, and is entered into by and among:
(1) DRIFTWOOD CLO 2023-I, LTD., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Borrower" or the "Issuer");
(2) DRIFTWOOD CREDIT MANAGEMENT LLC, a Delaware limited liability company (the "Collateral Manager" or "DCM"); and
(3) HAVENWOOD BANK, NATIONAL ASSOCIATION, a national banking association (the "Lender" or "Havenwood Bank").
Each of the Borrower, the Collateral Manager, and the Lender is referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS:
A. The Borrower, the Collateral Manager, and the Lender entered into that certain Warehouse Credit Facility Agreement dated as of May 22, 2023 (as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof, the "Warehouse Agreement"), pursuant to which the Lender made available to the Borrower a revolving credit facility in an aggregate principal amount of Two Hundred Fifty Million Dollars ($250,000,000) (the "Facility"). The Facility bore interest at a rate equal to Compounded SOFR (as defined in the Warehouse Agreement) plus 150 basis points per annum, and the Lender advanced funds at an advance rate of eighty-five percent (85%) of the par value of eligible collateral, all as more particularly set forth in the Warehouse Agreement. The Collateral Manager acted as collateral manager under the Warehouse Agreement and was responsible for the selection, acquisition, and trading of collateral assets in accordance with the eligibility criteria, portfolio constraints, and investment guidelines established thereunder.
B. The Facility was established for the purpose of financing the acquisition and warehousing of a portfolio comprised primarily of broadly syndicated first-lien senior secured leveraged loans (principally of U.S. corporate obligors) in anticipation of a broadly syndicated collateralized loan obligation transaction. The warehouse ramp period commenced on or about May 25, 2023, at which time the first collateral purchases were funded under the Facility, and continued in accordance with the terms of the Warehouse Agreement through the date hereof.
C. The Borrower (as co-issuer) and Driftwood CLO 2023-I, LLC, a Delaware limited liability company (the "Co-Issuer"), have consummated a Four Hundred Million Dollar ($400,000,000) collateralized loan obligation transaction designated "Driftwood CLO 2023-I" (the "CLO Transaction"). The CLO Transaction involves the issuance of multiple tranches of secured notes and subordinated notes pursuant to an Indenture dated as of August 22, 2023 (the "Indenture"), among the Borrower, as Issuer, the Co-Issuer, and Ironclad Trust Company, N.A., a national trust company, as Trustee (the "Trustee"). The closing of the CLO Transaction occurred on September 12, 2023 (the "Closing Date"). A portion of the proceeds of the secured notes and subordinated notes issued in the CLO Transaction (the "CLO Notes") has been applied on the date hereof to repay in full all outstanding amounts under the Warehouse Agreement, including the outstanding principal balance of Two Hundred Twelve Million Five Hundred Thousand Dollars ($212,500,000), together with all accrued and unpaid interest, fees, and other amounts owing thereunder.
D. The Lender has received, on the date hereof, full payment of all Obligations (as defined in the Warehouse Agreement), including the outstanding principal balance, all accrued and unpaid interest thereon, and all fees, costs, and expenses, in immediately available funds, in accordance with and as required by that certain payoff letter dated September 12, 2023, delivered by the Lender to the Borrower and to Calderwood & Harkness LLP, counsel to the Borrower (the "Payoff Letter"). The Parties now desire to terminate the Warehouse Agreement and all related ancillary documents and to release all liens, security interests, and other encumbrances granted by the Borrower and the Collateral Manager in favor of the Lender in connection with the Warehouse Agreement and the transactions contemplated thereby.
E. Driftwood Credit Management LLC, a Delaware limited liability company and SEC-registered investment adviser (CRD #182447), with its principal office at 200 Brickell Avenue, Suite 3100, Miami, Florida 33131, joined in the Warehouse Agreement as Collateral Manager and is a party hereto for purposes of confirming the release of its obligations thereunder and the mutual release of claims among the Parties as contemplated herein.
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below:
"Agreement" means this Termination and Release Agreement, dated as of September 12, 2023, among the Borrower, the Collateral Manager, and the Lender, as the same may be amended, restated, supplemented, or otherwise modified from time to time in accordance with the terms hereof.
"Borrower" means Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (Registration No. EX-382916).
"CLO Notes" means the secured notes and subordinated notes issued by the Issuer and the Co-Issuer pursuant to the Indenture in connection with the CLO Transaction.
"CLO Transaction" means the $400,000,000 collateralized loan obligation transaction designated "Driftwood CLO 2023-I," consummated on the Closing Date pursuant to the Indenture and related transaction documents.
"Closing Date" means September 12, 2023, being the closing date of both the CLO Transaction and this Agreement.
"Collateral" means all assets, securities, accounts, instruments, general intangibles, investment property, deposit accounts, and other property of any kind pledged, assigned, hypothecated, or granted as security under the Warehouse Agreement and the Security Documents in favor of the Lender, including all proceeds thereof.
"Collateral Manager" means Driftwood Credit Management LLC, a Delaware limited liability company and SEC-registered investment adviser (CRD #182447), with its principal office at 200 Brickell Avenue, Suite 3100, Miami, Florida 33131.
"Co-Issuer" means Driftwood CLO 2023-I, LLC, a Delaware limited liability company.
"Facility" means the $250,000,000 revolving credit facility established under the Warehouse Agreement.
"Indenture" means the Indenture dated as of August 22, 2023, among the Issuer, the Co-Issuer, and Ironclad Trust Company, N.A., as Trustee, as supplemented by any supplemental indentures entered into in connection with the CLO Transaction.
"Issuer" means Driftwood CLO 2023-I, Ltd., in its capacity as issuer under the Indenture.
"Lender" means Havenwood Bank, National Association, a national banking association, with its principal office at 227 West Monroe Street, Chicago, Illinois 60606.
"Liens" has the meaning set forth in Section 4.1.
"Obligations" means all principal, interest, fees, expenses, indemnification amounts, and all other amounts of any kind owed by the Borrower or the Collateral Manager to the Lender under or in connection with the Warehouse Agreement and the Security Documents.
"Outstanding Balance" means $212,500,000, being the outstanding principal balance under the Warehouse Agreement at the time of repayment on the date hereof.
"Payoff Amount" means the aggregate amount required to satisfy all Obligations in full, as set forth in the Payoff Letter, including the Outstanding Balance, all accrued and unpaid interest, and all fees, costs, and expenses.
"Payoff Letter" means the payoff letter dated September 12, 2023, issued by the Lender to the Borrower and Calderwood & Harkness LLP, a copy of which is attached hereto as Exhibit A and incorporated herein by reference.
"Security Documents" means, collectively, all pledge agreements, security agreements, account control agreements, UCC financing statements, and all other documents, instruments, or agreements executed and delivered in connection with the Warehouse Agreement granting or purporting to grant liens or security interests to the Lender in any Collateral, each as more specifically identified in Exhibit B hereto.
"Trustee" means Ironclad Trust Company, N.A., a national trust company, with its principal corporate trust office at 100 Wall Street, Suite 1650, New York, New York 10005, in its capacity as trustee and custodian under the Indenture.
"Warehouse Agreement" means the Warehouse Credit Facility Agreement dated as of May 22, 2023, among the Borrower, the Collateral Manager, and the Lender, as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof.
Section 1.2 — Interpretation. Unless otherwise defined herein, capitalized terms used but not defined in this Agreement shall have the respective meanings given to such terms in the Warehouse Agreement. In this Agreement, unless the context otherwise requires:
(a) words importing the singular shall include the plural and vice versa, and words importing a gender shall include each gender;
(b) references to "Articles," "Sections," "Exhibits," and "Schedules" are references to articles, sections, exhibits, and schedules of or to this Agreement unless otherwise specified;
(c) references to any agreement or document (including this Agreement) shall be construed as references to such agreement or document as amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms;
(d) references to any person shall include such person's successors and permitted assigns;
(e) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation";
(f) section headings and captions are inserted for convenience of reference only and shall not affect the construction or interpretation of any provision of this Agreement;
(g) references to "herein," "hereof," "hereunder," and similar words refer to this Agreement as a whole and not to any particular provision; and
(h) references to any statute or regulation shall be construed as references to such statute or regulation as from time to time amended, supplemented, or re-enacted.
ARTICLE II — ACKNOWLEDGMENT OF REPAYMENT AND SATISFACTION
Section 2.1 — Acknowledgment of Full Repayment. The Lender hereby acknowledges and confirms that it has received, on September 12, 2023, in immediately available funds by wire transfer to its account in accordance with the wire instructions set forth in the Payoff Letter, full and final payment of the Payoff Amount in complete satisfaction of all Obligations under the Warehouse Agreement. The Payoff Amount received by the Lender includes payment in full of each of the following:
(a) the outstanding principal balance of Two Hundred Twelve Million Five Hundred Thousand Dollars ($212,500,000);
(b) all accrued and unpaid interest thereon through and including the Closing Date at the applicable rate of Compounded SOFR plus 150 basis points per annum, as calculated in accordance with the terms of the Warehouse Agreement;
(c) all fees, costs, and expenses due and payable under the Warehouse Agreement and the Security Documents, including any commitment fees, facility fees, unused fees, and legal fees and expenses of the Lender's counsel, Kenton & Caldwell LLP, incurred in connection with the Warehouse Agreement and the transactions contemplated hereby; and
(d) all other amounts constituting Obligations under the Warehouse Agreement, including any amounts payable under any indemnification provisions of the Warehouse Agreement that have accrued or become payable as of the date hereof.
The wire transfer of the Payoff Amount was made by or on behalf of the Borrower to the account of Havenwood Bank, National Association, at the receiving bank and account specified in the Payoff Letter, and the Lender confirms receipt of such wire transfer in the full amount set forth therein.
Section 2.2 — Confirmation of Satisfaction. The Lender hereby confirms that, upon receipt of the Payoff Amount as described in Section 2.1, all Obligations of the Borrower and the Collateral Manager under or in connection with the Warehouse Agreement and the Security Documents have been indefeasibly paid in full and satisfied in their entirety. No further amounts are or shall become due or owing by the Borrower or the Collateral Manager to the Lender under or in connection with the Warehouse Agreement, any Security Document, or any other agreement, instrument, or document executed in connection therewith (other than obligations that expressly survive termination as described in Section 3.3 hereof). The Lender has no further claim against the Borrower, the Collateral Manager, or any of their respective assets, properties, or revenues in respect of the Obligations or otherwise arising out of or relating to the Warehouse Agreement or the Security Documents (other than as expressly set forth in Section 3.3 and Section 6.1 hereof).
ARTICLE III — TERMINATION OF WAREHOUSE AGREEMENT AND RELATED DOCUMENTS
Section 3.1 — Termination of Warehouse Agreement. Effective as of the date hereof, the Warehouse Agreement is hereby terminated in its entirety and shall be of no further force or effect, except as expressly set forth in Section 3.3 hereof. All commitments of the Lender to make advances, extend credit, or otherwise make funds available to the Borrower under the Warehouse Agreement are, as of the date hereof, irrevocably terminated and cancelled, and no Party shall have any obligation to make any further advances or borrowings thereunder. The Facility amount of $250,000,000 is hereby permanently reduced to zero, and no further borrowings, revolving advances, or other extensions of credit shall be made or available thereunder.
Section 3.2 — Termination of Ancillary and Security Documents. Effective as of the date hereof, each of the following documents and agreements executed, delivered, or entered into in connection with the Warehouse Agreement is hereby terminated in its entirety and shall be of no further force or effect, except as expressly set forth in Section 3.3 hereof:
(a) all pledge agreements and security agreements, including the Pledge and Security Agreement dated as of May 22, 2023, among the Borrower, the Collateral Manager, and the Lender, granting liens and security interests in the Collateral to the Lender;
(b) all account control agreements with respect to warehouse collateral accounts, collection accounts, and any other deposit accounts or securities accounts maintained in connection with the Facility, including the Account Control Agreement dated as of May 22, 2023, among the Borrower, the Lender, and Havenwood Bank, N.A. (in its capacity as account bank);
(c) all side letters, fee letters, and ancillary agreements entered into between or among any of the Parties in connection with the Warehouse Agreement, including any letter agreements relating to warehouse economics, collateral eligibility, or trading guidelines; and
(d) all guaranties, if any, delivered in connection with the Warehouse Agreement by the Collateral Manager or any affiliate of the Borrower.
Each Security Document terminated pursuant to this Section 3.2 is identified on Exhibit B hereto. The termination of such documents shall not, however, affect any rights or obligations arising thereunder prior to such termination to the extent such rights or obligations expressly survive in accordance with Section 3.3 hereof.
Section 3.3 — Survival. Notwithstanding the termination of the Warehouse Agreement and the Security Documents pursuant to Sections 3.1 and 3.2 hereof, the following provisions shall survive such termination solely to the extent expressly provided therein:
(a) indemnification obligations of the Borrower and the Collateral Manager in favor of the Lender and its Indemnified Persons (as defined in the Warehouse Agreement), solely with respect to claims, losses, liabilities, or expenses arising out of events, acts, or omissions that occurred prior to the date hereof, subject in all cases to the terms, conditions, and limitations set forth in the applicable indemnification provisions of the Warehouse Agreement (including, without limitation, any limitations on scope, any requirements for notice and opportunity to defend, and any caps or other limitations on liability expressly set forth therein);
(b) the confidentiality obligations of each Party set forth in the Warehouse Agreement, which shall continue in full force and effect in accordance with their respective terms for the periods specified therein; and
(c) any other provisions of the Warehouse Agreement that, by their express terms, are stated to survive the termination of the Warehouse Agreement.
For the avoidance of doubt, all other rights, obligations, covenants, agreements, representations, and warranties under the Warehouse Agreement and the Security Documents are hereby terminated and of no further force or effect as of the date hereof, and no Party shall have any liability therefor except as expressly provided in this Agreement.
ARTICLE IV — RELEASE OF COLLATERAL AND SECURITY INTERESTS
Section 4.1 — Release of Liens and Security Interests. The Lender hereby unconditionally and irrevocably releases, discharges, and terminates all liens, security interests, pledges, assignments, mortgages, charges, hypothecations, and encumbrances of any kind, whether arising by contract, operation of law, or otherwise (collectively, "Liens"), granted by or on behalf of the Borrower and/or the Collateral Manager in favor of the Lender pursuant to the Warehouse Agreement and the Security Documents, in and to all Collateral and all other assets and property of the Borrower and the Collateral Manager, whether now existing or hereafter acquired, that were subject to any such Lien. Such release, discharge, and termination shall be effective immediately as of the date hereof and without the necessity of any further action by any Party. The Collateral released, discharged, and freed from all Liens pursuant to this Section 4.1 includes, without limitation, the following:
(a) all broadly syndicated first-lien senior secured leveraged loans and other debt obligations acquired and held in the warehouse portfolio, including all right, title, and interest of the Borrower in and to the loan agreements, credit agreements, and other instruments evidencing such obligations and all related security, guarantees, and collateral;
(b) all warehouse collateral accounts, collection accounts, principal accounts, interest accounts, and any other deposit accounts or securities accounts maintained at Havenwood Bank, N.A. or any other financial institution in connection with the Facility;
(c) all cash, cash equivalents, money market instruments, and investment property held in any such accounts as of the date hereof;
(d) all proceeds, distributions, payments, collections, income, and other amounts received or receivable in respect of the foregoing Collateral, whether received before, on, or after the date hereof;
(e) all books, records, files, and documentation (whether in physical or electronic form) relating to the foregoing Collateral, including all trade confirmations, settlement records, and related correspondence; and
(f) all other property and assets of every kind and description, wherever located, that were subject to any Lien granted to the Lender in connection with the Warehouse Agreement or any Security Document.
Section 4.2 — UCC Termination Statements. The Lender hereby authorizes the Borrower (and/or its counsel, Calderwood & Harkness LLP) to prepare and file, at the Borrower's sole cost and expense, UCC-3 termination statements in all applicable jurisdictions with respect to all UCC-1 financing statements filed by or on behalf of the Lender naming the Borrower and/or the Collateral Manager as debtor in connection with the Warehouse Agreement and the Security Documents. A form of UCC-3 termination statement is attached hereto as Exhibit C. The Lender agrees to execute and deliver, promptly upon the reasonable request of the Borrower, any additional UCC-3 termination statements, lien releases, discharge instruments, or other documents or instruments as may be reasonably necessary or desirable to evidence and effectuate the release and termination of all Liens in any applicable jurisdiction. The Lender further acknowledges that the Borrower and its counsel are authorized to act as the Lender's agent for the limited purpose of filing such UCC-3 termination statements without further consent or authorization from the Lender.
Section 4.3 — Return of Possessory Collateral. To the extent the Lender holds, or has in its possession or under its control, any possessory collateral in connection with the Warehouse Agreement, including original promissory notes, instruments, securities certificates, stock powers, or other negotiable or non-negotiable documents of title, the Lender shall, within five (5) business days following the date hereof, deliver or cause to be delivered all such items to Ironclad Trust Company, N.A. (in its capacity as Trustee and custodian under the Indenture) at its principal corporate trust office at 100 Wall Street, Suite 1650, New York, New York 10005, or to such other person or address as may be directed by the Borrower in writing. The Lender represents that, as of the date hereof, it does not hold any original promissory notes, instruments, or securities certificates constituting Collateral, it being understood that all such items are held by the custodian appointed under the Warehouse Agreement.
Section 4.4 — Account Closure or Redesignation. With respect to any collateral accounts, collection accounts, or other deposit accounts or securities accounts maintained at Havenwood Bank, N.A. in connection with the Warehouse Agreement, the Parties agree as follows:
(a) Any such accounts that are no longer required in connection with the CLO Transaction or the ongoing operations of the Issuer shall be closed promptly following the transfer of all funds, securities, and other assets held therein, and Havenwood Bank, N.A. shall cooperate in effecting such closures upon the direction of the Borrower or its authorized representative.
(b) To the extent any such accounts will continue to be used as accounts of the Issuer in connection with the CLO Transaction (with Havenwood Bank, N.A. acting as account bank under the Indenture), the account control agreements in favor of the Lender executed pursuant to the Warehouse Agreement shall be deemed terminated and superseded in their entirety by account control agreements entered into, or to be entered into, in favor of the Trustee, Ironclad Trust Company, N.A., as applicable under the Indenture and related CLO Transaction documents. The Lender hereby acknowledges and agrees that it shall have no further rights or interests in or to any such accounts, and that all rights of control or dominion with respect thereto shall vest exclusively in the Trustee in accordance with the terms of the Indenture.
Section 4.5 — Assignment of Collateral. The Parties acknowledge and agree that the assignment, transfer, and conveyance of all collateral assets from the warehouse portfolio to Driftwood CLO 2023-I, Ltd. (in its capacity as Issuer under the Indenture) has been effectuated on the date hereof pursuant to a separate Assignment of Collateral Agreement dated September 12, 2023 (the "Assignment Agreement"), and that such collateral assets are now subject to, and encumbered by, the lien of the Indenture in favor of Ironclad Trust Company, N.A., as Trustee, for the benefit of the holders of the CLO Notes (the "Noteholders"). Nothing in this Agreement shall be construed to modify, amend, or supersede the terms of the Assignment Agreement or the Indenture with respect to such collateral assets.
ARTICLE V — REPRESENTATIONS AND WARRANTIES
Section 5.1 — Representations and Warranties of the Lender. Havenwood Bank, National Association hereby represents and warrants to each of the Borrower and the Collateral Manager, as of the date hereof, as follows:
(a) Organization and Good Standing. It is a national banking association duly organized, validly existing, and in good standing under the laws of the United States, and has all requisite corporate power and authority to own its properties and conduct its business as currently conducted.
(b) Power and Authority. It has full power, authority, and legal right to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby, including the release of all Liens and the termination of all Security Documents.
(c) Authorization; Due Execution. The execution and delivery of this Agreement, the performance of its obligations hereunder, and the release of all Liens have been duly authorized by all necessary corporate action on the part of the Lender, and no further corporate proceedings or approvals are necessary for the execution, delivery, or performance of this Agreement.
(d) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Lender, enforceable against the Lender in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) Receipt of Payoff Amount. It has received, on the date hereof, the Payoff Amount in full and final satisfaction of all Obligations owing by the Borrower and the Collateral Manager under or in connection with the Warehouse Agreement and the Security Documents.
(f) No Further Liens or Claims. Upon the effectiveness of this Agreement, it has no further Liens on, or security interests in, or claims to, any Collateral or any other assets or property of the Borrower or the Collateral Manager arising under or in connection with the Warehouse Agreement or any Security Document.
(g) No Assignment. It has not assigned, transferred, pledged, or otherwise conveyed to any third party any of its rights under the Warehouse Agreement or the Security Documents, or any interest in the Obligations or the Collateral, and it remains the sole holder of all rights thereunder as of the date hereof.
Section 5.2 — Representations and Warranties of the Borrower. Driftwood CLO 2023-I, Ltd. hereby represents and warrants to the Lender and the Collateral Manager, as of the date hereof, as follows:
(a) Organization and Good Standing. It is an exempted company duly incorporated, validly existing, and in good standing 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.
(b) Power and Authority. It has full power, authority, and legal right to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
(c) Authorization; Due Execution. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary corporate action on the part of the Borrower, including board resolutions dated August 20, 2023, and no further corporate proceedings, consents, or approvals are necessary for the execution, delivery, or performance hereof.
(d) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
(e) No Conflict. The execution, delivery, and performance of this Agreement do not and will not (i) violate or conflict with the memorandum and articles of association of the Borrower, (ii) violate any law, rule, or regulation applicable to the Borrower, or (iii) result in a breach of, or constitute a default under, any material agreement or instrument to which the Borrower is a party, including the Indenture.
Section 5.3 — Representations and Warranties of the Collateral Manager. Driftwood Credit Management LLC hereby represents and warrants to the Lender and the Borrower, as of the date hereof, as follows:
(a) Organization and Good Standing. It is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and has all requisite limited liability company power and authority to own its properties and conduct its business as currently conducted.
(b) Registration as Investment Adviser. It is duly registered as an investment adviser under the Investment Advisers Act of 1940, as amended (CRD #182447), with its principal office at 200 Brickell Avenue, Suite 3100, Miami, Florida 33131, and such registration has not been revoked, suspended, or made subject to any material limitation or condition.
(c) Power and Authority. It has full power, authority, and legal right to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby.
(d) Authorization; Due Execution. The execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by all necessary limited liability company action on the part of the Collateral Manager, including all requisite approvals of its members and/or managers, and no further proceedings, consents, or approvals are necessary for the execution, delivery, or performance hereof.
(e) Enforceability. This Agreement constitutes the legal, valid, and binding obligation of the Collateral Manager, enforceable against the Collateral Manager in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles.
ARTICLE VI — MUTUAL RELEASE
Section 6.1 — Release by the Lender. Effective as of the date hereof, the Lender, for itself and on behalf of its successors, assigns, parents, subsidiaries, affiliates, officers, directors, employees, agents, and representatives (collectively, the "Lender Releasing Parties"), hereby fully, finally, unconditionally, and irrevocably releases, acquits, and forever discharges the Borrower, the Collateral Manager, and each of their respective affiliates, partners, members, managers, officers, directors, employees, agents, representatives, successors, and assigns (collectively, the "Borrower/CM Released Parties") from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, demands, obligations, liabilities, losses, costs, or expenses of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown, suspected or unsuspected, matured or unmatured, fixed or contingent, liquidated or unliquidated, arising out of, relating to, or in connection with the Warehouse Agreement and the Security Documents and the transactions contemplated thereby; provided, however, that this release shall not apply to:
(a) claims arising under the surviving indemnification provisions described in Section 3.3(a) hereof, solely to the extent arising from events, acts, or omissions occurring prior to the date hereof and subject in all respects to the terms and limitations set forth in the Warehouse Agreement; and
(b) claims arising under this Agreement, including claims for breach of any representation, warranty, covenant, or agreement set forth herein.
Section 6.2 — Release by the Borrower and the Collateral Manager. Effective as of the date hereof, each of the Borrower and the Collateral Manager, for itself and on behalf of its respective successors, assigns, affiliates, partners, members, managers, officers, directors, employees, agents, and representatives (collectively, the "Borrower/CM Releasing Parties"), hereby fully, finally, unconditionally, and irrevocably releases, acquits, and forever discharges the Lender and its parents, subsidiaries, affiliates, officers, directors, employees, agents, representatives, successors, and assigns (collectively, the "Lender Released Parties") from any and all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, demands, obligations, liabilities, losses, costs, or expenses of any kind or nature whatsoever, in law, equity, or otherwise, whether known or unknown, suspected or unsuspected, matured or unmatured, fixed or contingent, liquidated or unliquidated, arising out of, relating to, or in connection with the Warehouse Agreement and the Security Documents and the transactions contemplated thereby; provided, however, that this release shall not apply to:
(a) claims arising under the surviving provisions described in Section 3.3 hereof, solely to the extent arising from events, acts, or omissions occurring prior to the date hereof and subject in all respects to the terms and limitations set forth in the Warehouse Agreement;
(b) claims arising under this Agreement, including claims for breach of any representation, warranty, covenant, or agreement set forth herein; and
(c) the Lender's obligations under Article IV hereof, including its obligations to effect the release of all Liens, to authorize and cooperate in the filing of UCC-3 termination statements, to return all possessory collateral, and to cooperate in the closure or redesignation of collateral accounts as contemplated therein.
ARTICLE VII — ADDITIONAL COVENANTS AND AGREEMENTS
Section 7.1 — Further Assurances. Each Party hereto agrees to execute and deliver, or cause to be executed and delivered, from time to time following the date hereof, such additional instruments, documents, certificates, assurances, and agreements as may be reasonably requested by any other Party hereto in order to carry out the purposes and intent of this Agreement, including the full and complete release and termination of all Liens and the filing of all necessary UCC-3 termination statements, lien releases, and other release documentation in all applicable jurisdictions. Each Party shall bear its own costs and expenses in connection with the preparation and execution of such additional instruments and documents, except as otherwise expressly provided herein.
Section 7.2 — Cooperation Regarding Regulatory and Tax Matters. The Parties shall cooperate with each other in good faith and in a timely manner as reasonably requested in connection with any regulatory inquiries, examinations, audits, tax filings, or other regulatory or tax matters relating to the Warehouse Agreement, the Facility, or the transactions contemplated thereby for any period during which the Facility was outstanding (i.e., from May 22, 2023, through September 12, 2023, inclusive). Such cooperation shall include, without limitation, the provision of access to relevant records, documents, and information, the making available of relevant personnel for interviews or testimony, and the execution of such consents, authorizations, and certifications as may be reasonably necessary. Each Party shall bear its own costs and expenses in connection with any such cooperation, unless otherwise agreed in writing by the Parties.
Section 7.3 — Record Retention. Each Party shall retain, in accordance with its customary document retention policies, complete copies of the Warehouse Agreement, the Security Documents, and all related transaction records, correspondence, trade confirmations, and settlement documentation for a period of not less than the greater of (a) seven (7) years from the date hereof or (b) such longer period as may be required by applicable law, regulation, or the rules of any self-regulatory organization to which such Party is subject. No Party shall destroy or dispose of any such records prior to the expiration of the applicable retention period without providing at least thirty (30) days' prior written notice to each other Party, during which time such other Party may request copies of any records proposed to be destroyed.
ARTICLE VIII — MISCELLANEOUS
Section 8.1 — Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to conflicts of law principles thereof (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law, which shall apply).
Section 8.2 — Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) Submission to Jurisdiction. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the United States District Court for the Southern District of New York and of the Supreme Court of the State of New York, County of New York (and any appellate courts thereof), for the purposes of any suit, action, or proceeding arising out of or relating to this Agreement, and agrees that all claims in respect of any such suit, action, or proceeding may be heard and determined in any such court.
(b) Waiver of Objection. Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or relating to this Agreement in any such court, and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
(c) Service of Process. Each Party irrevocably consents to service of process in the manner provided for notices in Section 8.8 hereof. Nothing herein shall affect the right of any Party to serve process in any other manner permitted by applicable law.
(d) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (III) IT MAKES THIS WAIVER VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 8.2(d).
Section 8.3 — Entire Agreement. This Agreement, together with the Payoff Letter and the Exhibits attached hereto, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, warranties, commitments, offers, agreements, and understandings (whether written or oral) relating to the termination of the Warehouse Agreement, the release of the Collateral, and the other matters set forth herein. No Party has relied on any representation or warranty not expressly set forth in this Agreement in entering into this Agreement.
Section 8.4 — Amendments and Waivers. No provision of this Agreement may be amended, modified, supplemented, or waived except by an instrument in writing executed and delivered by each of the Parties hereto. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
Section 8.5 — Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the Parties shall endeavor in good faith to replace such invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that, to the greatest extent possible, achieves the economic, business, and other purposes of the invalid, illegal, or unenforceable provision.
Section 8.6 — Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile, electronic signature, or portable document format (PDF) transmission), each of which when so executed and delivered shall be deemed an original and all of which counterparts, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by facsimile, electronic signature (including Brightwater Software or similar platforms), or PDF transmission shall be effective as delivery of a manually executed original counterpart.
Section 8.7 — Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. No Party may assign its rights or obligations under this Agreement without the prior written consent of each other Party, except that the Lender may assign its rights hereunder (including the benefit of the mutual release) to any successor in interest by merger, consolidation, or acquisition of substantially all of its assets.
Section 8.8 — Notices. All notices, requests, demands, consents, and other communications required or permitted hereunder shall be in writing and shall be deemed duly given (a) when delivered in person, (b) when sent by confirmed electronic mail (with a copy sent by another method specified in this Section 8.8), (c) one (1) business day after being sent by nationally recognized overnight courier service, or (d) three (3) business days after being mailed by registered or certified mail, return receipt requested, postage prepaid, in each case addressed to the applicable Party at the address set forth below (or at such other address as such Party may have designated by prior notice in accordance with this Section 8.8):
If to the Borrower:
Driftwood CLO 2023-I, Ltd. PO Box 4927, Windward House, 3rd Floor George Town, Grand Cayman KY1-1306 Cayman Islands
with a copy (which shall not constitute notice) to:
Driftwood Credit Management LLC 200 Brickell Avenue, Suite 3100 Miami, Florida 33131
Attention: David Hwan, Managing Director, Structured Credit
If to the Collateral Manager:
Driftwood Credit Management LLC 200 Brickell Avenue, Suite 3100 Miami, Florida 33131
Attention: Elena Voss, President & Chief Operating Officer
If to the Lender:
Havenwood Bank, National Association 227 West Monroe Street Chicago, Illinois 60606
Attention: Thomas Eriksen, Managing Director, Structured Finance Lending
With a copy (which shall not constitute notice) to Borrower's counsel:
Calderwood & Harkness LLP 450 Park Avenue New York, New York 10022
Attention: Samuel Eklund
With a copy (which shall not constitute notice) to Lender's counsel:
Kenton & Caldwell LLP 200 Park Avenue New York, New York 10166
Attention: Victor Salazar
Section 8.9 — No Third-Party Beneficiaries. Except as expressly provided in this Section 8.9, this Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns, and nothing contained herein, whether express or implied, shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement; provided, however, that Ironclad Trust Company, N.A. (in its capacity as Trustee under the Indenture) shall be an express third-party beneficiary of the release provisions set forth in Article IV hereof, solely to the extent of its interest in the Collateral as Trustee for the benefit of the Noteholders, and shall be entitled to enforce the provisions of Article IV directly against the Lender to the extent necessary to protect its lien on the Collateral under the Indenture.
Section 8.10 — Headings. The article and section headings, captions, and table of contents (if any) contained in this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.
[Remainder of this page intentionally left blank. Signature pages follow.]
SIGNATURE PAGES TO TERMINATION AND RELEASE AGREEMENT
IN WITNESS WHEREOF, the Parties hereto have caused this Termination and Release Agreement to be duly executed and delivered by their respective authorized officers or representatives as of the date first written above.
DRIFTWOOD CLO 2023-I, LTD. as Borrower
By: ________
Name: Authorized Signatory
Title: Director
Date: September 12, 2023
DRIFTWOOD CREDIT MANAGEMENT LLC as Collateral Manager
By: ________
Name: Marcus Sorensen
Title: Founder & Chief Investment Officer
Date: September 12, 2023
HAVENWOOD BANK, NATIONAL ASSOCIATION as Lender
By: ________
Name: Thomas Eriksen
Title: Managing Director, Structured Finance Lending
Date: September 12, 2023
EXHIBIT A
PAYOFF LETTER
The following is incorporated herein by reference:
Payoff Letter dated September 12, 2023, issued by Havenwood Bank, National Association to Driftwood CLO 2023-I, Ltd. and Calderwood & Harkness LLP.
Confirmation of Payoff Amount. The Payoff Letter confirms that the aggregate Payoff Amount required to satisfy all Obligations under the Warehouse Agreement in full consists of the following:
Wire Instructions. The Payoff Amount was wired to the account of Havenwood Bank, National Association in accordance with the wire instructions set forth in the Payoff Letter. The specific wire instructions (including ABA routing number, account number, and reference information) are contained in the original Payoff Letter and are not reproduced herein for security purposes.
Statement of Incorporation. The Payoff Letter dated September 12, 2023 is attached hereto and incorporated herein by reference as if set forth in full. In the event of any conflict between the terms of this Agreement and the terms of the Payoff Letter, the terms of this Agreement shall control.
EXHIBIT B
LIST OF SECURITY DOCUMENTS BEING TERMINATED
Pursuant to Section 3.2 of this Agreement, each of the following Security Documents, executed and delivered in connection with the Warehouse Agreement, is hereby terminated in its entirety and shall be of no further force or effect as of September 12, 2023:
Each of the foregoing documents is hereby terminated and of no further force or effect as of the date of this Agreement, and no Party shall have any continuing rights, obligations, or liabilities thereunder, except to the extent expressly set forth in Section 3.3 of this Agreement.
EXHIBIT C
FORM OF UCC-3 TERMINATION STATEMENT
UCC FINANCING STATEMENT AMENDMENT (FORM UCC-3)
Amendment Type: Termination
Initial Financing Statement File Number: 2023-3847291
Filing Office: Delaware Secretary of State
Date of Filing of Initial Financing Statement: May 24, 2023
Debtor:
Driftwood CLO 2023-I, Ltd. PO Box 4927, Windward House, 3rd Floor George Town, Grand Cayman KY1-1306 Cayman Islands
Organization ID: EX-382916 (Cayman Islands)
Secured Party:
Havenwood Bank, National Association 227 West Monroe Street Chicago, Illinois 60606
This Financing Statement Amendment is filed to terminate the effectiveness of the above-referenced initial financing statement.
The Secured Party, Havenwood Bank, National Association, hereby authorizes the filing of this UCC-3 Termination Statement. All obligations secured by the above-referenced financing statement have been indefeasibly paid in full and satisfied, and the Secured Party has no further security interest in the collateral described therein.
Authorization: The Borrower's counsel, Calderwood & Harkness LLP, is authorized to file this UCC-3 Termination Statement on behalf of the Secured Party, Havenwood Bank, National Association, pursuant to the authorization granted in Section 4.2 of the Termination and Release Agreement dated as of September 12, 2023, among Driftwood CLO 2023-I, Ltd., Driftwood Credit Management LLC, and Havenwood Bank, National Association.
A substantially similar UCC-3 Termination Statement shall be prepared and filed with respect to each additional UCC-1 Financing Statement identified in Exhibit B (including File No. 2023-3847306 naming Driftwood Credit Management LLC as debtor), with appropriate modifications to reflect the applicable debtor name, file number, and filing jurisdiction.
End of Exhibit C
[End of Termination and Release Agreement]
Component | Amount
Outstanding Principal Balance | $212,500,000.00
Accrued and Unpaid Interest (through September 12, 2023) | As calculated per Payoff Letter
Fees and Expenses (including legal fees of Lender's counsel) | As calculated per Payoff Letter
Total Payoff Amount | As set forth in the Payoff Letter
No. | Document | Date | Parties
1. | Pledge and Security Agreement | May 22, 2023 | Driftwood CLO 2023-I, Ltd. (as Pledgor) and Havenwood Bank, N.A. (as Secured Party)
2. | Account Control Agreement (Warehouse Collateral Account) | May 22, 2023 | Driftwood CLO 2023-I, Ltd. (as Account Holder), Havenwood Bank, N.A. (as Secured Party and Account Bank)
3. | Account Control Agreement (Collection Account) | May 22, 2023 | Driftwood CLO 2023-I, Ltd. (as Account Holder), Havenwood Bank, N.A. (as Secured Party and Account Bank)
4. | UCC-1 Financing Statement | Filed May 24, 2023 | Debtor: Driftwood CLO 2023-I, Ltd.; Secured Party: Havenwood Bank, N.A.; Filing Jurisdiction: Delaware Secretary of State; File No.: 2023-3847291
5. | UCC-1 Financing Statement | Filed May 24, 2023 | Debtor: Driftwood Credit Management LLC; Secured Party: Havenwood Bank, N.A.; Filing Jurisdiction: Delaware Secretary of State; File No.: 2023-3847306
6. | Fee Letter | May 22, 2023 | Driftwood CLO 2023-I, Ltd., Driftwood Credit Management LLC, and Havenwood Bank, N.A.
7. | Side Letter re: Collateral Eligibility and Trading Guidelines | May 22, 2023 | Driftwood Credit Management LLC and Havenwood Bank, N.A.

TERMINATION AND RELEASE AGREEMENT

TERMINATION AND RELEASE AGREEMENT

RECITALS

WHEREAS:

SIGNATURE PAGES TO TERMINATION AND RELEASE AGREEMENT

EXHIBIT A

PAYOFF LETTER

EXHIBIT B

LIST OF SECURITY DOCUMENTS BEING TERMINATED

EXHIBIT C

FORM OF UCC-3 TERMINATION STATEMENT

UCC FINANCING STATEMENT AMENDMENT (FORM UCC-3)

Record

Parties

Dates

Amounts