Exhibit 10.1


 


THIS PROMISSORY NOTE (“NOTE”) HAS
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED
FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES
ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
 


 


PROMISSORY NOTE


 


	 	Dated as of June 6, 2022
	 	 
	Principal Amount: Up to $1,159,995.69	New York, New York


 


 


Delwinds Insurance Acquisition
Corp., a special purpose acquisition company incorporated as a Delaware corporation (the “Maker”), promises to pay
to the order of FOXO Technologies Inc., a Delaware corporation, or its registered assigns or successors in interest (the “Payee”),
or order, the principal sum of up to One Million One Hundred Fifty-Nine Thousand Nine Hundred Ninety-Five Dollars and Sixty-Nine Cents
($1,159,995.69) in lawful money of the United States of America, on the terms and conditions described below. All payments
on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account
as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.


 


1. Principal.
The principal balance of this Note shall be due and payable by the Maker (such date, the “Maturity Date”), subject
to Section 12 below, upon the consummation of the Maker’s proposed initial business combination (the “Transaction”)
with the Payee. Under no circumstances shall any individual, including, but not limited to, any officer, director, employee or shareholder
of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder.


 


2.  Interest. 
No interest shall accrue on the unpaid principal balance of this Note.


 


3.  Drawdown
Requests. The Payee will fund up to One Million One Hundred Fifty-Nine Thousand Nine Hundred Ninety-Five Dollars and Sixty-Nine Cents
($1,159,995.69) into the trust account of the Maker established in connection with its initial public offering (the “Trust Account”),
such amounts to be for the benefit of the holders of the Maker’s unredeemed shares of Class A common stock upon redemption or liquidation
of the Maker in accordance with the Maker’s amended and restated certificate of incorporation. The principal of this Note may be
drawn down in three equal amounts of $386,665.23 per withdraw, between the 15th and 22nd of each of June, July and
August 2022, up until the date on which the Maker consummates its initial business combination, upon written request from the Maker to
the Payee (each, a “Drawdown Request”). Each Drawdown Request must be made before the 15th of each applicable
month, and state the amount to be drawn down. The Payee, in its sole discretion, shall fund each Drawdown Request via a wire transfer
directly to the Trust Account no later than the 22nd of each applicable month; provided, however, that the maximum amount
of drawdowns collectively under this Note shall not exceed One Million One Hundred Fifty-Nine Thousand Nine Hundred Ninety-Five Dollars
and Sixty-Nine Cents ($1,159,995.69). Once an amount is drawn down under this Note, it shall not be available for future Drawdown Requests.
Except as set forth herein, no fees, payments or other amounts shall be due to the Payee in connection with, or as a result of, any Drawdown
Request by the Maker.


 


4.  Application
of Payments.  All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under
this Note, including, without limitation, reasonable attorneys’ fees, and then to the payment in full of any late charges and finally
to the reduction of the unpaid principal balance of this Note.


 






     


     


    

 


5.  Events
of Default.  The following shall constitute an event of default (“Event of Default”):


 


(a)   Failure
to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Note within one (1) business day
of the Maturity Date.


 


(b)  Voluntary Bankruptcy,
Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation
or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment
for the benefit of creditors, or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate
action by the Maker in furtherance of any of the foregoing.


 


(c)   Involuntary
Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker
in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up
or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive
days.


 


6.  Remedies.


 


(a)   Upon
the occurrence of an Event of Default specified in Section 5(a) hereof, the Payee may, by written notice to the Maker, declare this Note
to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall
become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.


 


(b)   Upon
the occurrence of an Event of Default specified in Sections 5(b) and 5(c), the unpaid principal balance of this Note, and all other sums
payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part
of the Payee.


 


7.  Waivers. 
The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor,
protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by the Payee
under the terms of this Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property,
real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution,
or providing for any stay of execution, exemption from civil process, or extension of time for payment, and the Maker agrees that any
real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold
upon any such writ in whole or in part in any order desired by the Payee.


 


8.  Unconditional
Liability.  The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party,
and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to
by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with
respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to the Maker or affecting the Maker’s liability hereunder.


 






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9.  Notices. 
All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (a)
personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the
address designated in writing, (b) by facsimile to the number most recently provided to such party or such other address or fax number
as may be designated in writing by such party or (c) by electronic mail, to the electronic mail address most recently provided to such
party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication
so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt
of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier
service or five (5) days after mailing if sent by mail.


 


10.  Construction. 
THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.


 


11.  Severability. 
Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.


 


12.  Trust
Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or
claim of any kind (“Claim”) in or to any distribution of or from the trust account (the “Trust Account”)
established in which the proceeds of the initial public offering (“the “IPO”) conducted by the Maker (including
the deferred underwriters’ discounts and commissions) and the proceeds of the sale of the units issued in a private placement that
occurred prior to the closing of the IPO were deposited, as described in greater detail in the Maker’s Registration Statement on
Form S-1 (333-248753) filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The provisions of this Section
12 shall be in addition to, and not in limitation of, any releases of Claims provided by the Payee pursuant to any other agreement between
the Payee and the Maker, including, without limitation, that certain Agreement and Plan of Merger, dated as of February 24, 2022 (as amended
on April 26, 2022 and as may be amended or supplemented from time to time) with, DWIN Merger Sub Inc., a Delaware corporation and
wholly-owned subsidiary of the Maker, and DIAC Sponsor LLC, a Delaware limited liability company, in its capacity as Purchaser Representative,
for the purposes set forth therein, solely with respect to certain sections thereof.


 


13.  Amendment;
Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of
the Maker and the Payee.


 


14.  Assignment. No
assignment or transfer of this Note or any rights or obligations hereunder may be made by the Maker (by operation of law or otherwise)
without the prior written consent of the Payee and any attempted assignment without the required consent shall be void.


 


15.  Termination.
In the event that the Transaction is not consummated, the Maker shall not have any obligation or liability to the Payee hereunder and
this Note shall be automatically be null, void and without any further legal import.


 


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Signature page follows.]


 




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IN WITNESS WHEREOF,
the Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first
above written. 


 


	 	Delwinds Insurance Acquisition Corp.
	 	 	 
	 	By:	/s/ Andrew J. Poole
	 	 	Name: 	Andrew J. Poole
	 	 	Title:	CEO


 


IN WITNESS WHEREOF,
the Payee, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first
above written. 


 


	 	FOXO Technologies Inc.
	 	 	 
	 	By:	/s/ Jon Sabes
	 	 	Name: 	Jon Sabes
	 	 	Title:	CEO


 


[Signature Page – Promissory Note]


 


 


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