CO-ISSUANCE AGREEMENT

CO-ISSUANCE AGREEMENT
Dated as of August 22, 2023
between
DRIFTWOOD CLO 2023-I, LTD.
an exempted company incorporated with limited liability under the laws of the Cayman Islands
(Cayman Registration No. EX-382916)
and
DRIFTWOOD CLO 2023-I, LLC
a Delaware limited liability company
(DE File No. 7429831)
Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (the "Issuer," Cayman Registration No. EX-382916), having its registered office at PO Box 4927, Windward House, 3rd Floor, George Town, Grand Cayman KY1-1306, Cayman Islands, and Driftwood CLO 2023-I, LLC, a Delaware limited liability company (the "Co-Issuer," DE File No. 7429831), having its registered agent at National Registered Agents Inc., 1209 Orange Street, Wilmington, DE 19801. The Issuer and the Co-Issuer are collectively referred to herein as the "Co-Issuers."
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RECITALS
WHEREAS, the Issuer is an exempted company with limited liability organized under the laws of the Cayman Islands, formed for the purpose of, among other things, issuing secured and subordinated notes and acquiring and holding a portfolio of broadly syndicated first-lien senior secured leveraged loans and other eligible collateral obligations;
WHEREAS, the Co-Issuer is a Delaware limited liability company, the sole member of which is the Issuer, formed for the limited purpose of co-issuing the Notes (as defined below) with the Issuer in order to facilitate the offering and sale of the Notes to U.S. investors in compliance with applicable U.S. regulatory and tax requirements;
WHEREAS, the Co-Issuers intend to co-issue, on a joint and several basis, an aggregate principal amount of $400,000,000 of notes (the "Notes"), consisting of:
(i) $256,000,000 aggregate principal amount of Class A-1 Notes (CUSIP 144A: 26738TAA5; Reg S: G2694LAA7);
(ii) $40,000,000 aggregate principal amount of Class A-2 Notes (CUSIP 144A: 26738TAB3);
(iii) $28,000,000 aggregate principal amount of Class B Notes (CUSIP 144A: 26738TAC1);
(iv) $24,000,000 aggregate principal amount of Class C Notes (CUSIP 144A: 26738TAD9);
(v) $16,000,000 aggregate principal amount of Class D Notes (CUSIP 144A: 26738TAE7); and
(vi) $36,000,000 aggregate principal amount of Subordinated Notes (CUSIP 144A: 26738TAF4);
WHEREAS, the Notes are to be issued pursuant to an Indenture dated as of August 22, 2023 (as supplemented by the First Supplemental Indenture dated as of September 8, 2023, and as may be further supplemented, restated, or amended from time to time in accordance with its terms, the "Indenture"), among the Issuer, the Co-Issuer, and Ironclad Trust Company, N.A., a national banking association organized and existing under the laws of the United States, acting as trustee, note registrar, paying agent, transfer agent, custodian, and collateral administrator (the "Trustee"), with its principal corporate trust office located at 100 Wall Street, Suite 1650, New York, NY 10005;
WHEREAS, the Notes are being offered and sold (a) to qualified institutional buyers in reliance on the exemption from registration provided by Rule 144A under the Securities Act of 1933, as amended (the "Securities Act"), and (b) to persons who are not "U.S. persons" (as defined in Regulation S under the Securities Act) outside the United States in reliance on the exemption from registration provided by Regulation S under the Securities Act;
WHEREAS, the portfolio of collateral securing the Notes will be managed by Driftwood Credit Management LLC ("DCM"), a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940, as amended (SEC CRD #182447), pursuant to the Collateral Management Agreement dated as of August 22, 2023 (the "Collateral Management Agreement"), between the Issuer and DCM;
WHEREAS, the Co-Issuers desire to set forth in this Agreement their respective roles, obligations, and the terms of their joint and several liability with respect to the Notes and the Indenture, and to memorialize certain other agreements between them relating to the issuance of the Notes and the transactions contemplated by the Transaction Documents; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the Co-Issuers hereby agree as follows:
ARTICLE I — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.
"Agreement" means this Co-Issuance Agreement, dated as of August 22, 2023, between the Issuer and the Co-Issuer, as the same may be amended, modified, or supplemented from time to time in accordance with Section 9.2 hereof.
"Closing Date" means September 12, 2023, which is the date on which the Notes are to be issued and authenticated by the Trustee, the proceeds of the Notes are to be delivered to the Issuer, and the warehouse facility established in connection with the accumulation of the initial portfolio of collateral obligations is to be taken out and terminated.
"Collateral" means the portfolio of broadly syndicated first-lien senior secured leveraged loans and other eligible collateral obligations, together with all related assets, collections, proceeds, and other property pledged to the Trustee under the Indenture for the benefit of the Noteholders, as more fully described in the Indenture.
"Collateral Administration Agreement" means the Collateral Administration Agreement dated as of August 22, 2023, between the Issuer and the Trustee, as collateral administrator, as the same may be amended, modified, or supplemented from time to time.
"Collateral Management Agreement" means the Collateral Management Agreement dated as of August 22, 2023, between the Issuer and DCM, as the same may be amended, modified, or supplemented from time to time, pursuant to which DCM has been appointed as the collateral manager for the Collateral.
"Collateral Manager" means Driftwood Credit Management LLC, a Delaware limited liability company registered as an investment adviser under the Investment Advisers Act of 1940, as amended (SEC CRD #182447), in its capacity as collateral manager under the Collateral Management Agreement, and any successor collateral manager appointed in accordance with the terms of the Collateral Management Agreement and the Indenture.
"Co-Issuer" means Driftwood CLO 2023-I, LLC, a Delaware limited liability company (DE File No. 7429831), and any successor thereto permitted under this Agreement and the Indenture.
"Co-Issuers" means the Issuer and the Co-Issuer, jointly.
"Indenture" means the Indenture dated as of August 22, 2023, among the Issuer, the Co-Issuer, and the Trustee, as supplemented by the First Supplemental Indenture dated as of September 8, 2023, and as the same may be further supplemented, restated, amended, or modified from time to time in accordance with its terms.
"Issuer" means Driftwood CLO 2023-I, Ltd., an exempted company incorporated with limited liability under the laws of the Cayman Islands (Cayman Registration No. EX-382916), and any successor thereto permitted under this Agreement and the Indenture.
"LLC Agreement" means the Limited Liability Company Agreement of the Co-Issuer dated as of August 22, 2023, as the same may be amended, modified, or supplemented from time to time, pursuant to which the Issuer is the sole member and manager of the Co-Issuer.
"Note Purchase Agreement" means the Note Purchase Agreement dated as of September 8, 2023, among the Co-Issuers, Meridian Atlantic Securities LLC, and Northbridge Capital Markets Inc., as initial purchasers and placement agents, relating to the initial purchase and placement of the Notes.
"Noteholder" or "Holder" means, with respect to any Note, the person in whose name such Note is registered in the Note Register maintained by the Trustee (or its designee) as note registrar under the Indenture.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class B Notes, the Class C Notes, the Class D Notes, and the Subordinated Notes, in each case issued by the Co-Issuers under the Indenture on the Closing Date.
"Offering Memorandum" means the Final Offering Memorandum dated August 18, 2023, relating to the offering and sale of the Notes, as the same may be supplemented from time to time.
"Placement Agents" means Meridian Atlantic Securities LLC and Northbridge Capital Markets Inc., in their respective capacities as initial purchasers and placement agents in connection with the offering and sale of the Notes pursuant to the Note Purchase Agreement.
"Priority of Payments" means the priority of payments waterfall set forth in the Indenture pursuant to which collections on, and proceeds of, the Collateral are to be distributed on each Payment Date.
"Stated Maturity" means October 15, 2036, which is the date on which all outstanding Notes are scheduled to mature and all amounts due thereunder are scheduled to be paid in full, as set forth in the Indenture.
"Transaction Documents" means, collectively, the Indenture (including any supplemental indentures thereto), this Agreement, the Collateral Management Agreement, the Collateral Administration Agreement, the Note Purchase Agreement, the LLC Agreement, and each other agreement, instrument, certificate, or other document executed and delivered by any of the Co-Issuers or any other party in connection with the issuance of the Notes and the transactions contemplated thereby, as each may be amended, modified, or supplemented from time to time.
"Trustee" means Ironclad Trust Company, N.A., a national banking association, in its capacity as trustee, note registrar, paying agent, transfer agent, custodian, and collateral administrator under the Indenture, with its principal corporate trust office at 100 Wall Street, Suite 1650, New York, NY 10005, and any successor trustee appointed in accordance with the Indenture.
All other capitalized terms used and not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Indenture. In the event of any conflict between a definition set forth in this Agreement and the corresponding definition set forth in the Indenture, the definition set forth in the Indenture shall control.
Section 1.2 — Rules of Interpretation
The following rules of interpretation shall apply to this Agreement unless the context otherwise requires:
(a) The table of contents and section headings contained in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of any provision of this Agreement.
(b) Words importing the singular number shall include the plural and vice versa, and words importing one gender shall include all genders.
(c) References to "herein," "hereof," "hereby," "hereunder," and words of similar import refer to this Agreement as a whole, and not to any particular Article, Section, or other subdivision hereof, unless the context otherwise requires.
(d) Unless the context otherwise requires, references to Articles, Sections, Exhibits, and Schedules refer to the Articles and Sections of, and the Exhibits and Schedules to, this Agreement.
(e) The word "including" and words of similar import, when used in this Agreement, shall mean "including, without limitation," unless the context clearly indicates otherwise.
(f) References to any statute, rule, regulation, or other law shall be deemed to include references to such statute, rule, regulation, or law as amended, modified, supplemented, or replaced from time to time and to any successor provisions thereof, and to all rules and regulations promulgated thereunder.
(g) References to any agreement or instrument shall be deemed to include references to such agreement or instrument as amended, supplemented, restated, or modified from time to time in accordance with its terms and, where applicable, the terms of the Indenture.
(h) References to "dollars," "$," or "US$" shall mean United States dollars unless otherwise specified.
(i) References to any person shall include such person's successors and permitted assigns.
(j) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event of any ambiguity or question of intent or interpretation, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision hereof.
ARTICLE II — CO-ISSUANCE OF NOTES
Section 2.1 — Joint and Several Obligations
The Issuer and the Co-Issuer hereby irrevocably and unconditionally agree that they shall be jointly and severally liable for all obligations of the Co-Issuers arising under or in connection with the Notes, the Indenture, and the other Transaction Documents, including the payment of all principal of, premium (if any) on, and interest on the Notes, and any other amounts due and payable by the Co-Issuers thereunder. Such joint and several liability shall extend to all classes and tranches of Notes issued under the Indenture and outstanding from time to time, including:
(i) $256,000,000 aggregate principal amount of Class A-1 Notes;
(ii) $40,000,000 aggregate principal amount of Class A-2 Notes;
(iii) $28,000,000 aggregate principal amount of Class B Notes;
(iv) $24,000,000 aggregate principal amount of Class C Notes;
(v) $16,000,000 aggregate principal amount of Class D Notes; and
(vi) $36,000,000 aggregate principal amount of Subordinated Notes.
Each Holder of any Note may enforce any and all payment obligations of the Co-Issuers under such Note, the Indenture, or any other applicable Transaction Document against either or both of the Co-Issuers, in each case subject to the terms and conditions of the Indenture, including the limited recourse and non-petition provisions thereof and hereof. The joint and several liability of the Co-Issuers hereunder shall not be affected by any modification, amendment, supplement, or waiver of any provision of the Indenture or any other Transaction Document, or by any extension, renewal, or acceleration of the maturity of any Note, or by any release or substitution of Collateral, or by any bankruptcy, insolvency, reorganization, or similar proceeding affecting either Co-Issuer. For the avoidance of doubt, the joint and several liability of the Co-Issuers hereunder is subject in all respects to the limited recourse provisions set forth in Section 7.3 of this Agreement and the corresponding provisions of the Indenture.
Section 2.2 — Authorization of Notes
Each Co-Issuer hereby confirms that it has taken all corporate, limited liability company, or other organizational action necessary to duly authorize the issuance of the Notes, the execution, delivery, and performance of this Agreement, the Indenture, and each other Transaction Document to which it is a party, and the consummation of the transactions contemplated hereby and thereby.
Without limiting the generality of the foregoing:
(a) The Issuer has authorized the issuance of the Notes and the execution, delivery, and performance of this Agreement and the other Transaction Documents to which it is a party pursuant to resolutions duly adopted by its board of directors on August 20, 2023, in accordance with its Memorandum and Articles of Association and the laws of the Cayman Islands.
(b) The Co-Issuer has authorized the issuance of the Notes and the execution, delivery, and performance of this Agreement and the other Transaction Documents to which it is a party pursuant to the written consent of its sole member (the Issuer) dated August 20, 2023, in accordance with the LLC Agreement of the Co-Issuer dated August 22, 2023 and the Delaware Limited Liability Company Act.
The Notes will be issued and authenticated by the Trustee under the Indenture on the Closing Date in accordance with the terms and conditions of the Indenture and the Note Purchase Agreement. No Notes shall be deemed validly issued unless and until they have been duly authenticated by the Trustee in accordance with the Indenture.
Section 2.3 — Issuance in the Names of the Co-Issuers
All Notes issued under the Indenture shall be issued in the joint names of the Issuer and the Co-Issuer as co-issuers thereof. The face of each Note shall bear the names of both Co-Issuers and shall indicate that such Note is a joint and several obligation of the Co-Issuers, in each case in the form set forth in the Indenture. Each Note shall be executed on behalf of both the Issuer and the Co-Issuer by their respective authorized signatories, or by such other means as may be specified in the Indenture.
The Notes shall be registered in book-entry form through The Depository Trust Company ("DTC") through the Trustee acting as paying agent, note registrar, and transfer agent (DTC Participant No. 2176). Notes offered and sold in reliance on Rule 144A shall bear the applicable 144A CUSIP numbers as set forth in Exhibit A hereto. Notes offered and sold in reliance on Regulation S shall bear the applicable Regulation S CUSIP numbers as set forth in Exhibit A hereto. All Notes shall be issued in compliance with the applicable transfer restrictions set forth in the Indenture and the Offering Memorandum.
Section 2.4 — Payment of Notes
All payments of principal of, premium (if any) on, interest on, and any other amounts due in respect of the Notes shall be made by or on behalf of the Co-Issuers through the Trustee in its capacity as paying agent in accordance with the terms of the Indenture and the Priority of Payments.
The following terms shall apply to payments on the Notes:
(a) Reference Rate. Interest on the Rated Notes (being the Class A-1 Notes, Class A-2 Notes, Class B Notes, Class C Notes, and Class D Notes) shall accrue at a per annum rate equal to Compounded SOFR (with the 26253 fallback convention as more fully described in the Indenture) plus the applicable spread for each such class of Notes as set forth in Exhibit A hereto.
(b) Day Count Convention. Interest on the Notes shall be computed on the basis of the actual number of days elapsed in the applicable interest accrual period divided by 360 (Actual/360).
(c) Payment Dates. Payments on the Notes shall be made quarterly on the 15th day of each of January, April, July, and October of each year (each, a "Payment Date"), commencing on January 15, 2024; provided that if any such day is not a Business Day, payment shall be made on the next succeeding Business Day (with interest continuing to accrue to, but excluding, such next succeeding Business Day).
(d) Record Date. The record date for purposes of determining the persons entitled to receive payments on any Payment Date shall be the 15th calendar day preceding such Payment Date (or, if such day is not a Business Day, the immediately preceding Business Day) (the "Record Date").
(e) Source of Payments. All payments on the Notes shall be made solely from the Collateral in accordance with the Priority of Payments waterfall set forth in the Indenture. No Co-Issuer shall have any obligation to make payments on the Notes from any source other than the Collateral. The Subordinated Notes shall be entitled to receive distributions only after all amounts due and payable to the Holders of the Rated Notes and to other parties entitled to priority payments under the Indenture have been paid in full in accordance with the Priority of Payments.
ARTICLE III — RESPECTIVE ROLES AND RESPONSIBILITIES
Section 3.1 — Role of the Issuer
The Issuer shall serve as the primary obligor under the Indenture and the primary entity responsible for acquiring, holding, and pledging the Collateral for the benefit of the Noteholders. In furtherance thereof, the Issuer has pledged all of its right, title, and interest in and to the Collateral, including all collections, proceeds, and other property related thereto, to the Trustee for the benefit of the Noteholders and the other secured parties under the Indenture, pursuant to and in accordance with the terms of the Indenture.
The Issuer is the sole member of the Co-Issuer and exercises all governance and management rights with respect to the Co-Issuer in accordance with the LLC Agreement. The Issuer is an exempted company with limited liability organized under the laws of the Cayman Islands, with its registered office at PO Box 4927, Windward House, 3rd Floor, George Town, Grand Cayman KY1-1306, Cayman Islands, and is registered with the Registrar of Companies of the Cayman Islands under Registration No. EX-382916.
The Issuer has appointed DCM as collateral manager to manage the portfolio of Collateral on behalf of the Issuer in accordance with the terms of the Collateral Management Agreement and the Indenture. The Collateral Manager shall be responsible for the selection, acquisition, disposition, and ongoing monitoring of the Collateral, subject to the collateral quality tests, portfolio limitations, and other requirements set forth in the Indenture and the Collateral Management Agreement.
The Issuer shall retain ultimate responsibility for its obligations under the Indenture and the other Transaction Documents and shall not delegate or assign any such obligations except as expressly permitted by the Indenture.
Section 3.2 — Role of the Co-Issuer
The Co-Issuer has been formed solely for the limited purpose of co-issuing the Notes jointly with the Issuer, in order to facilitate the offering, sale, and settlement of the Notes in the United States and to ensure compliance with applicable U.S. regulatory and tax structuring requirements. The Co-Issuer is a Delaware limited liability company, organized under the Delaware Limited Liability Company Act, with DE File No. 7429831 and its registered agent at National Registered Agents Inc., 1209 Orange Street, Wilmington, DE 19801.
The Co-Issuer is classified as a disregarded entity for U.S. federal income tax purposes, and for such purposes all assets, liabilities, income, deductions, and credits of the Co-Issuer are treated as those of the Issuer, its sole owner.
The Co-Issuer shall not own any assets (other than any minimal assets required to maintain its legal existence), conduct any business or trade, or incur any liabilities or obligations, in each case other than in connection with its role as co-issuer of the Notes and as otherwise expressly contemplated by this Agreement, the LLC Agreement, and the Indenture. The Co-Issuer shall have no employees, no offices or facilities (other than a registered agent and registered office in the State of Delaware), and no operations independent of the Issuer.
Section 3.3 — Limited Activities of the Co-Issuer
The activities of the Co-Issuer shall be strictly limited to the following:
(a) co-issuing the Notes jointly and severally with the Issuer on the terms and conditions set forth in the Indenture;
(b) executing and delivering this Agreement, the Indenture, the Note Purchase Agreement, and each other Transaction Document to which the Co-Issuer is a party;
(c) performing its obligations under the Transaction Documents to which it is a party, including the joint and several obligation to pay principal of, premium (if any) on, interest on, and any other amounts due in respect of the Notes as and when due (subject to the limited recourse provisions of the Indenture and this Agreement); and
(d) engaging in such activities as are reasonably incidental to, and necessary for the accomplishment of, the foregoing purposes.
Without limiting the generality of the foregoing limitations, the Co-Issuer shall not:
(i) acquire any collateral assets, loans, securities, or other investment property, or hold any assets other than any minimal amounts of cash or other property necessary to maintain its legal existence as a Delaware limited liability company;
(ii) engage in any trade or business, or conduct any operations or activities, other than those expressly permitted by this Section 3.3;
(iii) incur, assume, guarantee, or become liable for any indebtedness or other obligation other than its obligations under the Notes and the other Transaction Documents to which it is a party;
(iv) merge with or into, consolidate with, or convert into any other entity, or dissolve, liquidate, or wind up its affairs, except as expressly permitted by the Indenture; or
(v) create, incur, assume, or permit to exist any lien, security interest, pledge, charge, or other encumbrance on any of its assets (if any) other than as expressly contemplated by the Indenture and the other Transaction Documents.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES
Section 4.1 — Representations and Warranties of the Issuer
The Issuer hereby represents and warrants to the Co-Issuer as of the date hereof and as of the Closing Date as follows:
(a) Organization and Good Standing. The Issuer is duly organized, validly existing, and in good standing (to the extent applicable under the laws of the Cayman Islands) as an exempted company with limited liability under the laws of the Cayman Islands (Registration No. EX-382916). The Issuer has all requisite corporate power and authority to own its properties, to carry on its business as presently conducted, and to execute, deliver, and perform its obligations under this Agreement and each other Transaction Document to which it is a party.
(b) Authority. The Issuer has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement, the Indenture, and each other Transaction Document to which it is a party. The execution, delivery, and performance by the Issuer of this Agreement and each such Transaction Document have been duly authorized by all necessary corporate action on the part of the Issuer, including board resolutions duly adopted by the board of directors of the Issuer on August 20, 2023, and no further action or consent of any person is required for such execution, delivery, and performance.
(c) Enforceability. This Agreement has been duly executed and delivered by the Issuer and constitutes the legal, valid, and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, receivership, liquidation, or other similar laws relating to or affecting creditors' rights generally, and (ii) general principles of equity (whether applied in a proceeding at law or in equity).
(d) No Conflict. The execution, delivery, and performance by the Issuer of this Agreement and each other Transaction Document to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (i) conflict with, violate, or result in a breach of any provision of the Issuer's Memorandum and Articles of Association, (ii) conflict with, violate, or result in a breach of any applicable law, statute, rule, regulation, order, judgment, decree, or governmental permit or license binding upon the Issuer or its properties, or (iii) conflict with, result in a breach or default under, give rise to any right of termination, cancellation, or acceleration under, or require any consent under, any material agreement, indenture, mortgage, deed of trust, lease, license, or other instrument to which the Issuer is a party or by which the Issuer or any of its properties or assets is bound.
(e) No Consents. No consent, approval, authorization, registration, filing, or qualification of or with any governmental authority, regulatory body, or other third party is required in connection with the execution, delivery, and performance by the Issuer of this Agreement and the other Transaction Documents, or the consummation of the transactions contemplated hereby and thereby, other than those that have already been obtained, made, or given and are in full force and effect, and those that are required to be made or obtained after the date hereof and that will be timely made or obtained.
(f) Investment Company Act. The Issuer is not, and upon the issuance of the Notes and the application of the proceeds thereof in accordance with the Indenture will not be, required to register as an "investment company" under the Investment Company Act of 1940, as amended (the "Investment Company Act"), in reliance on the exemption from registration provided by Rule 3a-7 under the Investment Company Act, and the Issuer will conduct its affairs so as to maintain such exemption.
(g) Tax Status. The Issuer is not, and does not intend to become, engaged in a trade or business within the United States for U.S. federal income tax purposes. The Issuer is registered as a Reporting Foreign Financial Institution with the Cayman Tax Information Authority under the Foreign Account Tax Compliance Act ("FATCA") and the Common Reporting Standard ("CRS") as implemented in the Cayman Islands, and has complied in all material respects with the requirements thereof. The Issuer intends to be treated as a corporation for U.S. federal income tax purposes.
Section 4.2 — Representations and Warranties of the Co-Issuer
The Co-Issuer hereby represents and warrants to the Issuer as of the date hereof and as of the Closing Date as follows:
(a) Organization and Good Standing. The Co-Issuer is duly organized, validly existing, and in good standing under the laws of the State of Delaware (DE File No. 7429831). The Co-Issuer has all requisite limited liability company power and authority to execute, deliver, and perform its obligations under this Agreement and each other Transaction Document to which it is a party.
(b) Authority. The Co-Issuer has full limited liability company power and authority to execute, deliver, and perform its obligations under this Agreement, the Indenture, and each other Transaction Document to which it is a party. The execution, delivery, and performance by the Co-Issuer of this Agreement and each such Transaction Document have been duly authorized by all necessary limited liability company action on the part of the Co-Issuer, including the written consent of its sole member (the Issuer) dated August 20, 2023, in accordance with the LLC Agreement of the Co-Issuer dated August 22, 2023 and the Delaware Limited Liability Company Act, and no further action or consent of any person is required for such execution, delivery, and performance.
(c) Enforceability. This Agreement has been duly executed and delivered by the Co-Issuer and constitutes the legal, valid, and binding obligation of the Co-Issuer, enforceable against the Co-Issuer in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, or other similar laws relating to or affecting creditors' rights generally, and (ii) general principles of equity (whether applied in a proceeding at law or in equity).
(d) No Conflict. The execution, delivery, and performance by the Co-Issuer of this Agreement and each other Transaction Document to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (i) conflict with, violate, or result in a breach of any provision of the Co-Issuer's Certificate of Formation or the LLC Agreement, (ii) conflict with, violate, or result in a breach of any applicable law, statute, rule, regulation, order, judgment, decree, or governmental permit or license binding upon the Co-Issuer or its properties, or (iii) conflict with, result in a breach or default under, give rise to any right of termination, cancellation, or acceleration under, or require any consent under, any material agreement, indenture, or other instrument to which the Co-Issuer is a party or by which the Co-Issuer or any of its properties or assets is bound.
(e) No Consents. No consent, approval, authorization, registration, filing, or qualification of or with any governmental authority, regulatory body, or other third party is required in connection with the execution, delivery, and performance by the Co-Issuer of this Agreement and the other Transaction Documents, or the consummation of the transactions contemplated hereby and thereby, other than those that have already been obtained, made, or given and are in full force and effect.
(f) Tax Status. The Co-Issuer has elected, and at all times since its formation has been classified, as a disregarded entity for U.S. federal income tax purposes within the meaning of Treasury Regulation Section 301.7701-3. The Co-Issuer has not filed an IRS Form 8832 electing any classification other than as a disregarded entity and does not intend to file any such election.
(g) Limited Purpose. The Co-Issuer has been formed solely for the purpose of co-issuing the Notes jointly with the Issuer and performing its obligations under the Transaction Documents to which it is a party. Since its formation, the Co-Issuer has not engaged in any business, activity, or undertaking other than those activities expressly contemplated by this Agreement, the LLC Agreement, and the other Transaction Documents.
(h) No Liabilities. The Co-Issuer has no liabilities, obligations, or commitments of any kind, whether absolute, accrued, contingent, or otherwise, other than (i) its obligations arising under the Notes, the Indenture, this Agreement, and the other Transaction Documents to which it is a party, and (ii) obligations incidental to its formation and maintenance as a Delaware limited liability company (including fees payable to its registered agent).
ARTICLE V — COVENANTS
Section 5.1 — Covenants of the Issuer
The Issuer hereby covenants and agrees with the Co-Issuer as follows, in each case for so long as any Notes remain outstanding under the Indenture:
(a) Maintenance of Existence. The Issuer shall maintain its existence as an exempted company with limited liability duly organized and validly existing under the laws of the Cayman Islands, and shall maintain its registration with the Registrar of Companies of the Cayman Islands. The Issuer shall not merge with or into, consolidate with, or convert into any other entity, or dissolve, liquidate, or wind up its affairs, except as expressly permitted by the Indenture.
(b) Compliance with Transaction Documents. The Issuer shall comply in all material respects with all of its obligations under the Indenture, the Collateral Management Agreement, the Collateral Administration Agreement, the Note Purchase Agreement, and each other Transaction Document to which it is a party, and shall perform all acts and take all actions required of it thereunder in a timely manner.
(c) Maintenance of Security Interest. The Issuer shall maintain, preserve, protect, and defend the Trustee's first-priority perfected security interest in the Collateral as required by the Indenture, and shall take all actions reasonably necessary to ensure that such security interest remains valid, perfected, and enforceable in accordance with the terms of the Indenture, including making all necessary filings, recordings, and registrations and paying all associated fees and taxes.
(d) Collateral Management. The Issuer shall cause DCM, as Collateral Manager, to perform its duties and obligations under the Collateral Management Agreement and the Indenture, including the selection, acquisition, and disposition of collateral obligations, ongoing credit surveillance and portfolio monitoring, and compliance with the collateral quality tests, coverage tests, and portfolio limitations set forth in the Indenture. Without limiting the foregoing, the Issuer shall cause the Collateral Manager to manage the Collateral in compliance with the following collateral quality tests and portfolio limitations (as such tests and limitations may be amended from time to time in accordance with the Indenture):
(i) minimum weighted average spread of 350 basis points;
(ii) minimum diversity score of 60;
(iii) maximum CCC-rated bucket of 7.5% of the aggregate principal balance of the Collateral;
(iv) minimum weighted average rating factor ("WARF") of 2,850;
(v) maximum weighted average life of 7.5 years;
(vi) maximum second-lien bucket of 5.0% of the aggregate principal balance of the Collateral;
(vii) maximum fixed-rate bucket of 10.0% of the aggregate principal balance of the Collateral; and
(viii) minimum weighted average recovery rate of 45.0%.
(e) Tax Compliance. The Issuer shall maintain its registration with the Cayman Tax Information Authority under FATCA and CRS and shall comply in all material respects with all applicable tax reporting and withholding obligations. The Issuer shall not take any action that would cause it to be treated as engaged in a trade or business within the United States for U.S. federal income tax purposes.
Section 5.2 — Covenants of the Co-Issuer
The Co-Issuer hereby covenants and agrees with the Issuer as follows, in each case for so long as any Notes remain outstanding under the Indenture:
(a) Maintenance of Existence. The Co-Issuer shall maintain its existence as a limited liability company duly organized and in good standing under the laws of the State of Delaware, and shall not fail to maintain its qualification and good standing in any jurisdiction where such qualification is required.
(b) Limited Purpose. The Co-Issuer shall not engage in any activity other than its limited-purpose activities as described in Section 3.3 of this Agreement. The Co-Issuer shall not acquire any assets, conduct any operations, employ any persons, or engage in any business or undertaking, in each case other than as expressly contemplated by this Agreement, the LLC Agreement, and the Indenture.
(c) Tax Status. The Co-Issuer shall at all times maintain its classification as a disregarded entity for U.S. federal income tax purposes and shall not file or cause to be filed any election under Treasury Regulation Section 301.7701-3 (or any successor provision) to change such classification.
(d) No Additional Indebtedness or Liens. The Co-Issuer shall not incur, assume, guarantee, or become liable for any indebtedness, obligation, or liability of any kind other than its obligations under the Notes and the other Transaction Documents to which it is a party. The Co-Issuer shall not create, incur, assume, or permit to exist any lien, security interest, pledge, charge, or other encumbrance on any of its assets (if any) other than as expressly contemplated by the Indenture.
(e) No Dissolution. The Co-Issuer shall not dissolve, liquidate, wind up its affairs, or take any action in furtherance thereof, except as expressly permitted by the Indenture or this Agreement.
(f) Registered Agent. The Co-Issuer shall at all times maintain a registered agent in the State of Delaware. As of the date hereof, the Co-Issuer's registered agent is National Registered Agents Inc., located at 1209 Orange Street, Wilmington, DE 19801. The Co-Issuer shall promptly notify the Issuer and the Trustee of any change in its registered agent.
Section 5.3 — Mutual Covenants
Each of the Co-Issuers hereby covenants and agrees as follows, in each case for so long as any Notes remain outstanding under the Indenture:
(a) Cooperation. Each Co-Issuer shall cooperate with the other Co-Issuer and with the Trustee in connection with any actions required or contemplated under the Indenture, this Agreement, or any other Transaction Document, including the execution and delivery of any certificates, opinions, reports, or other documents required to be delivered thereunder, and the provision of any information reasonably requested by the Trustee or the Collateral Manager.
(b) Notice of Defaults. Each Co-Issuer shall promptly notify the other Co-Issuer and the Trustee in writing of (i) any Event of Default (as defined in the Indenture), (ii) any event or circumstance which, with the giving of notice, the lapse of time, or both, would constitute an Event of Default under the Indenture, or (iii) any material breach or default by such Co-Issuer under any Transaction Document.
(c) Further Assurances. Each Co-Issuer shall, at the request of the other Co-Issuer or the Trustee, execute and deliver such further instruments, documents, certificates, and agreements, and take such further actions, as may be reasonably necessary or appropriate to carry out the purposes and intent of this Agreement, the Indenture, and the other Transaction Documents, and to give effect to the transactions contemplated hereby and thereby.
ARTICLE VI — RELATIONSHIP BETWEEN THE CO-ISSUERS
Section 6.1 — Sole Member
The Issuer is the sole member and manager of the Co-Issuer, as set forth in and governed by the LLC Agreement of the Co-Issuer dated August 22, 2023. The Issuer shall exercise all governance rights, management authority, and voting powers with respect to the Co-Issuer in accordance with the LLC Agreement and the Delaware Limited Liability Company Act. No person or entity other than the Issuer shall have any membership interest, economic interest, or governance rights in or with respect to the Co-Issuer.
Section 6.2 — No Partnership or Joint Venture
Nothing contained in this Agreement shall be construed to create, or shall be deemed to create, a partnership, joint venture, or agency relationship between the Co-Issuers, or between either Co-Issuer and any other person or entity, for any purpose whatsoever, except to the extent that the Co-Issuers are jointly and severally liable for the obligations under the Notes and the Indenture as expressly set forth in this Agreement. The relationship between the Issuer and the Co-Issuer is solely that of (a) sole member and managed limited liability company under the LLC Agreement, and (b) co-issuers of the Notes under the Indenture and this Agreement. Neither Co-Issuer shall have the authority to bind or obligate the other Co-Issuer in any manner or to any extent, except as expressly set forth in this Agreement, the Indenture, and the other Transaction Documents.
Section 6.3 — Separate Existence
Notwithstanding the joint and several liability of the Co-Issuers hereunder and under the Indenture, and notwithstanding the Co-Issuer's status as a disregarded entity for U.S. federal income tax purposes, each Co-Issuer shall at all times maintain its separate legal existence and identity as a distinct legal entity. Without limiting the foregoing:
(a) The Co-Issuer shall maintain separate books and records, even if such books and records are minimal given the limited-purpose nature of the Co-Issuer's activities. Such books and records shall accurately reflect the Co-Issuer's status as a separate legal entity.
(b) The Co-Issuer shall hold itself out to the public and to all third parties as a legal entity separate and distinct from the Issuer and from any other entity, and shall conduct its limited activities in its own name.
(c) The Co-Issuer shall not commingle its assets (if any) with those of the Issuer or any other entity, except as may be contemplated by the Indenture and the other Transaction Documents in light of the Co-Issuer's status as a disregarded entity and its limited-purpose nature.
(d) The Co-Issuer shall observe all formalities required by the Delaware Limited Liability Company Act and the LLC Agreement in connection with its corporate governance and organizational matters.
ARTICLE VII — INDEMNIFICATION AND CONTRIBUTION
Section 7.1 — Indemnification by the Issuer
As between the Co-Issuers only, and not for the benefit of, or enforceable by, any Noteholder, the Trustee, or any other third party, the Issuer hereby agrees to indemnify, defend, and hold harmless the Co-Issuer from and against any and all losses, claims, damages, liabilities, costs, and expenses (including reasonable and documented attorneys' fees and expenses) arising out of or relating to the Co-Issuer's obligations under the Notes, the Indenture, or any other Transaction Document, to the extent that the Collateral is available to satisfy such obligations in accordance with the Priority of Payments under the Indenture.
Notwithstanding the foregoing, the indemnification obligations of the Issuer under this Section 7.1 are expressly subordinate to, and limited by, the Priority of Payments waterfall set forth in the Indenture. The Co-Issuer acknowledges and agrees that it shall have no recourse, and the Issuer shall have no indemnification obligation hereunder, to the extent that the Collateral is insufficient to satisfy such indemnification obligations after giving effect to all prior-ranking obligations under the Priority of Payments. The Co-Issuer further acknowledges and agrees that it shall have no recourse to any assets of the Issuer other than the Collateral pledged under the Indenture.
This Section 7.1 is solely for the purpose of governing the allocation of risk between the Co-Issuers and shall not create, enlarge, diminish, or otherwise affect the rights of any Noteholder, the Trustee, or any other person under the Notes, the Indenture, or any other Transaction Document.
Section 7.2 — Contribution
If the Co-Issuer is required to make any payment on the Notes or under any Transaction Document in respect of the joint and several liability established by Section 2.1 of this Agreement, and such payment is made from the Co-Issuer's own assets (if any), the Issuer shall, to the extent of available Collateral proceeds under the Priority of Payments waterfall in the Indenture, reimburse and make contribution to the Co-Issuer for the amount of such payment. Any right of contribution or reimbursement under this Section 7.2 shall be subordinate in all respects to the rights of the Noteholders and the other secured parties under the Indenture and the Priority of Payments, and shall be payable only from Collateral proceeds that are available for such purpose after all prior-ranking obligations under the Priority of Payments have been satisfied in full.
Section 7.3 — Limited Recourse
All obligations of the Co-Issuers under this Agreement, the Notes, the Indenture, and the other Transaction Documents are limited recourse obligations, payable solely from the Collateral pledged to the Trustee under the Indenture for the benefit of the Noteholders and the other secured parties. No Noteholder, the Trustee, the Collateral Manager, the Placement Agents, or any other person or entity shall have recourse to any assets of either Co-Issuer other than the Collateral for the payment or satisfaction of any obligation of the Co-Issuers under this Agreement, the Notes, the Indenture, or any other Transaction Document.
Following the application of the Collateral and all proceeds thereof in accordance with the Priority of Payments under the Indenture (whether upon maturity, acceleration, optional or mandatory redemption, liquidation, or otherwise), any remaining obligations of the Co-Issuers under this Agreement, the Notes, the Indenture, and the other Transaction Documents that are not satisfied from such application shall be automatically and irrevocably extinguished, and no person or entity shall have any further claim or recourse against either Co-Issuer in respect of such extinguished obligations. Each party dealing with the Co-Issuers under this Agreement, the Notes, the Indenture, or any other Transaction Document is deemed to have accepted and acknowledged this limitation on recourse as a material term of such instrument.
ARTICLE VIII — TERM AND TERMINATION
Section 8.1 — Effective Date and Term
This Agreement shall become effective as of August 22, 2023, and shall remain in full force and effect until the earliest to occur of the following:
(a) the date on which all Notes issued under the Indenture have been paid in full (or the obligations thereunder have been otherwise satisfied, discharged, or defeased) and all other amounts due and payable by the Co-Issuers under the Indenture and the other Transaction Documents have been paid in full, in each case in accordance with the terms of the Indenture;
(b) the Stated Maturity of October 15, 2036 (or any earlier date on which all outstanding Notes are redeemed, repurchased, or accelerated in accordance with the Indenture) and the payment in full of all amounts due and payable under the Indenture on or in connection with such date; or
(c) the defeasance or satisfaction and discharge of the Indenture in accordance with its terms, such that neither Co-Issuer has any continuing obligations thereunder.
Upon termination of this Agreement in accordance with this Section 8.1, neither Co-Issuer shall have any further obligations hereunder, except as expressly provided in Section 8.2 below.
Section 8.2 — Survival
The representations, warranties, and indemnification obligations of the parties set forth in Articles IV and VII hereof shall survive the termination of this Agreement to the extent necessary to resolve any claims, disputes, or proceedings arising prior to or in connection with such termination, including any claims asserted after the date of termination but based upon facts, events, or circumstances occurring prior to such date.
In addition, the following provisions of this Agreement shall survive the termination of this Agreement indefinitely and shall remain in full force and effect regardless of any termination of this Agreement: Section 7.3 (Limited Recourse), Section 9.5 (Governing Law), Section 9.6 (Submission to Jurisdiction), Section 9.7 (Waiver of Jury Trial), Section 9.8 (Severability), and Section 9.11 (No Petition Covenant).
ARTICLE IX — MISCELLANEOUS
Section 9.1 — Notices
All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if (i) delivered personally, (ii) sent by registered or certified mail (return receipt requested, postage prepaid), (iii) sent by a nationally recognized overnight courier service (charges prepaid, with confirmation of delivery), or (iv) sent by email (with confirmation of receipt), in each case addressed as follows:
If to the Issuer:
Driftwood CLO 2023-I, Ltd. PO Box 4927, Windward House, 3rd Floor George Town, Grand Cayman KY1-1306 Cayman Islands
With a copy to: Driftwood Absolute Return Fund Ltd. 200 Brickell Avenue, Suite 3100 Miami, FL 33131
Attention: Marcus Sorensen / David Hwan
If to the Co-Issuer:
Driftwood CLO 2023-I, LLC c/o National Registered Agents Inc. 1209 Orange Street Wilmington, DE 19801
With a copy to: Driftwood Absolute Return Fund Ltd. 200 Brickell Avenue, Suite 3100 Miami, FL 33131
Attention: Elena Voss
If to the Trustee:
Ironclad Trust Company, N.A. 100 Wall Street, Suite 1650 New York, NY 10005
Attention: Catherine Nowak, Vice President, Corporate Trust
If to Issuer's Counsel:
Calderwood & Harkness LLP 450 Park Avenue New York, NY 10022
Attention: Samuel Eklund
Any party hereto may change its address for notices by giving written notice of such change to the other parties hereto in accordance with this Section 9.1. Notices shall be deemed received (a) if delivered personally, on the date of delivery, (b) if sent by registered or certified mail, on the fifth Business Day after mailing, (c) if sent by overnight courier, on the next Business Day after dispatch, and (d) if sent by email, on the date of transmission (if transmitted on a Business Day prior to 5:00 p.m. New York City time) or on the next Business Day (if transmitted after 5:00 p.m. New York City time or on a day that is not a Business Day).
Section 9.2 — Amendments
This Agreement may be amended, modified, supplemented, restated, or waived only by a written instrument duly executed by each of the Co-Issuers, with the prior written consent of the Trustee to the extent that such consent is required by the Indenture. No amendment, modification, supplement, or waiver of any provision of this Agreement shall be effective unless it is in writing and signed by each party against whom such amendment, modification, supplement, or waiver is to be enforced. No amendment to this Agreement shall adversely affect the rights, interests, or obligations of any Noteholder without compliance with the applicable amendment, modification, and waiver provisions of the Indenture, including the consent of the requisite percentage of Noteholders as specified therein.
Section 9.3 — Successors and Assigns
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither Co-Issuer may assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of the other Co-Issuer and the Trustee, except as expressly permitted by the Indenture. Any purported assignment, transfer, or delegation in violation of this Section 9.3 shall be null and void and of no force or effect.
Section 9.4 — Third-Party Beneficiaries
The Trustee (in its capacity as trustee under the Indenture) and the Noteholders are intended third-party beneficiaries of this Agreement to the extent of, and solely with respect to, the Co-Issuers' joint and several obligations under the Notes and the Indenture as set forth in Section 2.1 hereof, and the limited recourse provisions set forth in Section 7.3 hereof. The Trustee and each Noteholder shall have the right to enforce such provisions directly against the Co-Issuers in accordance with the terms of the Indenture and this Agreement. Except as expressly set forth in the preceding sentences, no other person or entity shall have any rights, interests, or benefits under this Agreement, whether as a third-party beneficiary or otherwise, and this Agreement shall not be construed to confer any rights upon any person or entity that is not a party hereto.
Section 9.5 — Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without giving effect to any principles of conflicts of law thereof that would require or permit the application of the laws of any other jurisdiction, other than Section 5-1401 of the New York General Obligations Law (which by its terms applies to this Agreement).
Section 9.6 — Submission to Jurisdiction
Each Co-Issuer hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York and the Supreme Court of the State of New York, New York County, each located in the Borough of Manhattan, City of New York, for purposes of any suit, action, or proceeding arising out of or relating to this Agreement or any Transaction Document, and each Co-Issuer hereby irrevocably and unconditionally waives any objection that it may now or hereafter have to the laying of venue of any such suit, action, or proceeding in any such court and any claim that any such suit, action, or proceeding has been brought in an inconvenient forum.
The Issuer, being an entity organized under the laws of the Cayman Islands, hereby irrevocably appoints the Co-Issuer, acting through its registered agent in the State of Delaware (National Registered Agents Inc., 1209 Orange Street, Wilmington, DE 19801), as its authorized agent for the service of process in any suit, action, or proceeding arising out of or relating to this Agreement or any Transaction Document in any court referred to in this Section 9.6. If for any reason such agent shall cease to serve as agent for service of process, the Issuer shall promptly appoint a successor agent for service of process in the State of New York and shall notify the Co-Issuer and the Trustee of such appointment. Service of process upon such agent shall be deemed, in every respect, effective service of process upon the Issuer. Nothing in this Section 9.6 shall affect the right of any party hereto to serve process in any other manner permitted by applicable law.
Section 9.7 — Waiver of Jury Trial
EACH CO-ISSUER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, THE INDENTURE, OR ANY OTHER TRANSACTION DOCUMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR THE ACTIONS OF ANY CO-ISSUER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE, OR ENFORCEMENT HEREOF OR THEREOF. EACH CO-ISSUER CERTIFIES AND ACKNOWLEDGES THAT (A) 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, (B) EACH CO-ISSUER UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH CO-ISSUER MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH CO-ISSUER HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.7.
Section 9.8 — Severability
If any provision of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. The parties hereto shall endeavor in good faith to replace any 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 9.9 — Entire Agreement
This Agreement, together with the Indenture and the other Transaction Documents, constitutes the entire agreement between the Co-Issuers with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, understandings, representations, warranties, agreements, and commitments, whether written or oral, relating to such subject matter. No party hereto shall be bound by, or liable for, any alleged representation, promise, inducement, or statement of intent not set forth in this Agreement or the other Transaction Documents.
Section 9.10 — Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile transmission, by electronic mail in portable document format (PDF), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document shall be effective as delivery of a manually executed original counterpart of this Agreement.
Section 9.11 — No Petition Covenant
Each party hereto hereby covenants and agrees that, prior to the date which is one year and one day (or, if longer, the applicable preference period under applicable bankruptcy or insolvency law plus one day) after the payment in full of all Notes and all other amounts due and payable under the Indenture, it shall not, directly or indirectly, institute, or join any other person or entity in instituting, against either Co-Issuer any bankruptcy, reorganization, arrangement, insolvency, moratorium, receivership, liquidation, or similar proceedings under any applicable federal, state, or foreign bankruptcy, insolvency, or similar law. This Section 9.11 shall survive the termination of this Agreement.
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IN WITNESS WHEREOF, the parties her