AMENDED AND RESTATED INCREMENTAL SUPER PRIORITY NOTE SUBSCRIPTION AGREEMENT
This AMENDED AND RESTATED INCREMENTAL SUPER PRIORITY NOTE SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on January 19, 2024, by and between GETAROUND, INC., a Delaware corporation (the “Borrower”), Getaround Operations LLC, Conveyance Auto, LLC and HyreCar LLC (collectively, the “Guarantors” and, together with the Borrower, the “Loan Parties”) and MUDRICK CAPITAL MANAGEMENT L.P., on behalf of certain funds, investors, entities or accounts that is managed, sponsored or advised by it (together with its permitted successors and assigns, the “Holder”). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Note (as defined below).
WHEREAS, on September 8, 2023, the Borrower and the Holder entered into a super priority note subscription agreement (the “September 2023 Subscription Agreement”), pursuant to which the Borrower issued, and the Holder subscribed for a super priority secured promissory note with an aggregate principal amount of $15,040,685 (the “September 2023 Note”);
WHEREAS, on December 11, 2023, the Borrower and the Holder entered into an incremental super priority note subscription agreement (the “Incremental Subscription Agreement”), pursuant to which the Borrower issued, and the Holder subscribed for, (i) an amended and restated super priority secured promissory note with an aggregate principal amount of $18,635,499.51 (the “Initial Amended and Restated Note”), which replaced the September 2023 Note, and (ii) a second amended and restated super priority secured promissory note with an aggregate principal amount of $20,880,922.00 (the “Second Amended and Restated Note”), which replaced the Initial Amended and Restated Note; and
WHEREAS, upon the terms and conditions contained herein, (i) the Loan Parties and the Holder desire to amend and restate the Incremental Subscription Agreement (which shall, together with any of the Holder’s and Loan Parties’ commitments thereunder, be terminated and no longer be in effect as of the date hereof) and (ii) the Holder desires to subscribe for and purchase, additional super priority secured promissory notes (each, a “New Amended and Restated Note” and, together with the Second Amended and Restated Note, the “Note”) from time to time of and from the Borrower substantially in the form attached hereto as Exhibit A;
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
Section 1. Subscription.
Section 2. Closing.
(B) Jason Mudrick shall have been appointed to the Board of Directors of the Borrower as a Class III Director;
(2) if the Appointment Outside Date has occurred, the Board of Directors of the Borrower, the Compensation Committee of the Board of Directors of the Borrower and Nominating
and Corporate Governance Committee of the Board of Directors of the Borrower shall be constituted as set forth in Section 5(c);
Section 3. Loan Parties’ Representations and Warranties. Each Loan Party represents and warrants to the Holder, as of the date of this Subscription Agreement, that:
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except as such enforceability, including rights of indemnification, may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors generally and by the availability of equitable remedies.
Section 4. Holder Representations and Warranties. The Holder represents and warrants to the Loan Parties that:
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breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Holder pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan agreement, lease, license or other agreement or instrument to which the Holder is a party or by which the Holder is bound or to which any of the property or assets of the Holder is subject; (ii) the organizational documents of the Holder; or (iii) any statute or any judgment, order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Holder or any of its properties that, in the case of clauses (i) and (iii), would reasonably be expected to have a Holder Material Adverse Effect. For purposes of this Subscription Agreement, a “Holder Material Adverse Effect” means an event, change, development, occurrence, condition or effect with respect to the Holder that would reasonably be expected to have a material adverse effect on the Holder’s ability to consummate the transactions contemplated hereby, including the purchase of the Note.
U.S. persons pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act or (iii) pursuant to an applicable exemption from the registration requirements of the Securities Act, and, in each of cases (ii) and (iii), in accordance with any applicable securities laws of the states and other jurisdictions of the United States, and that the Note shall contain a notation or restrictive legend, as applicable, to such effect, and as a result of these transfer restrictions, the Holder may not be able to readily offer, resell, transfer, pledge or otherwise dispose of the Note and may be required to bear the financial risk of an investment in the Note for an indefinite period of time. The Holder acknowledges and agrees that
(i) the Notes will not be eligible for offer, resale, transfer, pledge or disposition pursuant to Rule 144 promulgated under the Securities Act (“Rule 144”) until at least one year from the filing of “Form 10 information” with the Commission after the Closing Date and (ii) additional conditions to any such transaction may apply under Rule 144 and other applicable securities laws to the extent that the Holder is at such time, or has been at any time in the immediately preceding three months, an “affiliate” of the Borrower within the meaning of Rule 144. The Holder understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Note and.
Section 5. Covenants.
(60) days following the date hereof and (B) five (5) Business Days following the Holder’s identification of candidates who satisfy the definition of Independent Director (as such term is defined below) (such later event, the “Appointment Outside Date”), (i) the Board of Directors consists of five (5) directors, comprised of one (1) Independent Director serving as a Class I Director, two (2) Class II Directors, one of whom shall be an Independent Director, and two (2) Class III Directors, one of whom shall be Jason Mudrick, and (ii) assuming they comply with the independence requirements of the New York Stock Exchange, two (2) Independent Directors shall have been appointed to the
Compensation Committee of the Board of Directors of the Borrower and the Nominating and Corporate Governance Committee of the Board of Directors of the Borrower. For purposes of this Agreement, the term, “Independent Director” means an individual identified by, and acceptable to, the Holder who (a) is reasonably acceptable to a majority of the other members of the Board of Directors, and (b) meets the independence requirements of the New York Stock Exchange.
Section 6. Termination.
(the termination events described in clauses (i)–(ii) above, collectively, the “Termination Events”); provided, that nothing herein will relieve any party from liability for any willful breach hereof prior to the time of termination or common law intentional fraud in the making of any representation or warranty hereunder, and each party will be entitled to any remedies at law or in equity (including specific performance) to recover losses, liabilities or damages arising from such breach or fraud. Upon the occurrence of any Termination Event, this Subscription Agreement shall be void and of no further effect and the Repayment Amount shall promptly (and in any event within one Business Day) following the Termination Event be paid to the Holder.
Section 7. Indemnity and Release.
Section 8. Miscellaneous.
(x) to waive any requirement for the security or posting of any bond in connection with any such equitable remedy; (y) not to assert that a remedy of specific enforcement pursuant to this Section 8(k) is unenforceable, invalid, contrary to applicable law or inequitable for any reason; and (z) to waive any defenses in any action for specific performance, including the defense that a remedy at law would be adequate.
Schedule I
NOTICES
Loan Parties
Getaround, Inc. 55 Green Street
San Francisco, California 94111
Attn: Tom Alderman; Spencer Jackson
Email: tom@getaround.com; legal@getaround.com
With a copy (such copy not to constitute notice) to: Orrick, Herrington & Sutcliffe LLP
The Orrick Building 405 Howard Street
San Francisco, California 94105 Attn: Bill Hughes
Email: whughes@orrick.com
Holder
Mudrick Capital Management L.P.
on behalf of certain funds, investors, entities or accounts that is managed, sponsored or advised by it
527 Madison Avenue, 6th Floor New York, NY 10022
Attn: Glenn Springer
Email: operations@mudrickcapital.com; vdanh@mudrickcapital.com; kkim@mudrickcapital.com
With a copy (such copy not to constitute notice) to:
Weil, Gotshal & Manges LLP 767 Fifth Avenue
New York, NY 10153
Attn: Matt Barr; Michael Lubowitz; Nitin Konchady
Email: matt.barr@weil.com; michael.lubowitz@weil.com; nitin.konchady@weil.com
IN WITNESS WHEREOF, each of the Loan Parties and the Holder has executed or caused this Subscription Agreement to be executed by its duly authorized representative as of the date first set forth above.
GETAROUND, INC.
By: /s/ SAM ZAID
Name: Sam Zaid
Title: Chief Executive Officer
GETAROUND OPERATIONS LLC
By: /s/ SPENCER JACKSON
Name: Spencer Jackson
Title: Secretary & General Counsel
CONVEYANCE AUTO, LLC
By: /s/ SPENCER JACKSON
Name: Spencer Jackson
Title: Secretary & General Counsel
HYRECAR LLC
By: /s/ SPENCER JACKSON
Name: Spencer Jackson
Title: Secretary & General Counsel
GETAROUND OPERATIONS LLC
By: /s/ SPENCER JACKSON
Name: Spencer Jackson
Title: Secretary & General Counsel
HOLDER
MUDRICK CAPITAL MANAGEMENT L.P.
on behalf of certain funds, investors, entities or accounts that is managed, sponsored or advised by it
By: /s/ JASON MUDRICK
Name: Jason Mudrick
Title: Chief Investment Officer
EXHIBIT A
FORM OF AMENDED AND RESTATED NOTE
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED OR SOLD UNLESS REGISTERED PURSUANT TO THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THIRD AMENDED AND RESTATED SUPER PRIORITY SECURED PROMISSORY NOTE
$23,941,032.31 | January 19, 2023 |
FOR VALUE RECEIVED, GETAROUND, INC., a Delaware corporation (the “Borrower”), hereby unconditionally promises to pay to MUDRICK CAPITAL MANAGEMENT L.P., on behalf of certain funds, investors, entities or accounts that is managed, sponsored or advised by it (together with its permitted successors and assigns, the “Holder”), an amount equal to 108.000% of the principal amount of the Note (which principal amount shall include all capitalized amounts and/or accrued and unpaid interest on the Note) (collectively, the “Repayment Amount”).
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Notes Indenture.
America.
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Agreement.
Indenture.
(aa) “Lien” means, with respect to any asset, (a) any mortgage, leasehold mortgage, deed of trust, leasehold deed of trust, lien (statutory or otherwise), pledge, hypothecation, encumbrance, collateral assignment, charge or security interest in, on or of such asset and (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset.
(bb) “Loan Parties” means the Borrower and the Guarantors.
(cc) “Maturity Date” means August 7, 2026.
(dd) “Net Proceeds” means the aggregate cash proceeds and Cash Equivalents received by the Borrower or any of its Subsidiaries in respect of a transaction contemplated in Section 4 hereof (including, without limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash consideration received in any such transaction), provided that such amount shall be net of the direct costs relating to such transaction, including, without limitation, legal, accounting and investment banking fees, and sales commissions, taxes paid or payable as a result of such transaction, any charges, payments or expenses incurred in connection with such transaction and any reserve for adjustment or indemnification obligations in respect of the sale price of such asset or assets established in accordance with GAAP. To the extent the amounts that must be netted against any cash proceeds and Cash Equivalents cannot be reasonably determined by the Borrower with respect to any transaction, such cash proceeds and Cash Equivalents shall not be deem received until such amounts to be netted are known by the Borrower.
(ee) “Note” shall mean this Third Amended and Restated Super Priority Secured Promissory Note.
(ff) “Note Documents” shall mean this Note, the Subscription Agreements, the Guarantee Agreement, the Security Documents, and each other instrument, document or agreement executed and/or delivered by a Loan Party pursuant to or in connection with any of the foregoing, each as amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time.
(gg) “Obligations” shall have the meaning assigned to such term in Section 5.
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(hh) “Permitted Liens” shall have the meaning assigned to such term in the Convertible
Notes Indenture
(ii) “Permitted Refinancing” shall have the meaning assigned to such term in the Convertible Notes Indenture
(jj) “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, company, trust, unincorporated organization or government or other agency or political subdivision thereof. Any division or series of a limited liability company, limited partnership or trust will constitute a separate “person” under this Note.
(kk) “PGE Facility” shall have the meaning assigned to such term in the Convertible Notes
Indenture.
(ll) “Pledge Agreement” means that certain share charge, dated as of September 8, 2023, by and among the Borrower, certain subsidiaries and Affiliates of the Borrower, and the Collateral Agent, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
(mm) “Security Agreement” means that certain Security Agreement, dated as of September 8, 2023, by and among the Borrower, the other grantors party thereto and the Collateral Agent, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
(nn) “Security Documents” means all security agreements (including the Security Agreement, Pledge Agreement, Intellectual Property Security Agreement and the Deposit Account Control Agreements), intercreditor agreements (including the Super Priority Intercreditor Agreement), pledge agreements, charges, mortgages, collateral assignments, collateral agency agreements, or other grants or transfers for security executed and delivered by the Borrower or any Guarantor creating (or purporting to create) a Lien upon Collateral for the benefit of the Holder to secure the obligations under this Note and the Guarantee Agreement, in each case, as amended, supplemented, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and the terms of this Note.
(oo) “Similar Business” means (1) any business conducted by the Borrower or any of its Subsidiaries on the date of this Note or (2) any business or other activities that are reasonably similar, ancillary, incidental, corollary, complementary, synergistic or related to, or a reasonable extension, development or expansion of, the businesses that the Borrower and its Subsidiaries conduct or propose to conduct on the date of this Note.
(pp) “Subscription Agreements” means (i) that certain Subscription Agreement, dated as of September 8, 2023, by and between the Borrower and the Holder and (ii) that certain Amended and Restated Incremental Super Priority Note Subscription Agreement, dated as of the date hereof, by and between the Borrower and the Holder, in each case as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
(qq) “Subsidiary” means, with respect to any Person, (A) any corporation, company, association or other business entity (other than a partnership or limited liability company) of which more than fifty percent (50%) of the total voting power of the Capital Stock entitled (without regard to the occurrence of any contingency, but after giving effect to any voting agreement or stockholders’ or shareholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees, as applicable, of such corporation, association or other business entity is owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person; and (B) any partnership or limited liability company where (i) more than fifty percent (50%) of the capital accounts, distribution rights, equity and voting interests, or of the general and limited partnership interests, as applicable, of such partnership or limited liability company are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person, whether in the form of membership, general, special or limited partnership or limited liability company interests or otherwise; and (ii) such Person or any one or more of
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the other Subsidiaries of such Person is a controlling general partner of, or otherwise controls, such partnership or limited liability company.
(rr) “Super Priority Intercreditor Agreement” means that certain Super Priority Intercreditor Agreement, dated as of September 8, 2023, by and between the Holder, U.S. Bank Trust Company, National Association, as collateral agent under the Convertible Notes Indenture, and the Collateral Agent, acknowledged by the Loan Parties, as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.
(ss) “As used herein and in any certificate or other document made or delivered pursuant hereto or thereto, (i) accounting terms relating to the Borrower not defined in this Section 1 and accounting terms partly defined in this Section 1, to the extent not defined, shall have the respective meanings given to them under GAAP, (ii) references in this Note to “Articles”, “Sections”, “Annexes”, “Exhibits”, or “Schedules” shall be to Articles, Sections, Annexes, Exhibits or Schedules of or to this Note unless otherwise specifically provided (iii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iv) the word “incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings), (v) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, capital stock, securities, revenues, accounts, leasehold interests and contract rights, and (vi) references to agreements or other contractual obligations (including any of this Note) shall, unless otherwise specified, be deemed to refer to such agreements or contractual obligations as amended, supplemented, restated, amended and restated or otherwise modified from time to time.
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any time.
with
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(ii) as soon as practicable, and in no event more than 30 days after the repayment of the PGE Facility in full (other than by way of a Permitted Refinancing thereof consisting of French State guaranteed loans), will execute and deliver to the Collateral Agent such Security Documents (in a form that is reasonably satisfactory to the Holder) and other documents to create effective first priority Liens and security interests over the collateral that secures the PGE Facility as of the date of this Note to be provided in respect of this Note and take all action, including executing and delivering all ancillary documents, in connection with the creation, perfection and/or registration of such collateral.
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(i) when delivered personally to the recipient, (ii) when sent by electronic mail, on the date of transmission to such recipient (with no mail undeliverable or other rejection notice), (iii) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), or (iv) four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and, in each case, addressed to the intended recipient at its address or electronic mail address, as applicable, specified in Schedule I hereof or to such electronic mail address or address as subsequently modified by written notice given in accordance with this Section 17.
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IN WITNESS WHEREOF, the undersigned have executed this Note as of the date first written above.
GETAROUND, INC.,
as the Borrower
By: Name:
Title:
Acknowledged and Agreed:
HOLDER
MUDRICK CAPITAL MANAGEMENT L.P.,
on behalf of certain funds, investors, entities or accounts that is managed, sponsored or advised by it
By: Name: Jason Mudrick
Title: Chief Investment Officer
SCHEDULE I
NOTICES
Borrower
Getaround, Inc.
55 Green Street
San Francisco, California 94111
Attn: Tom Alderman; Spencer Jackson
Email: tom@getaround.com; legal@getaround.com
With a copy (such copy not to constitute notice) to: Orrick, Herrington & Sutcliffe LLP
The Orrick Building 405 Howard Street
San Francisco, California 94105 Attn: Bill Hughes
Email: whughes@orrick.com Holder
Mudrick Capital Management L.P.
on behalf of certain funds, investors, entities or accounts that is managed, sponsored or advised by it 527 Madison Avenue, 6th Floor
New York, NY 10022 Attn: Glenn Springer
Email: operations@mudrickcapital.com; vdanh@mudrickcapital.com; kkim@mudrickcapital.com With a copy (such copy not to constitute notice) to:
Weil, Gotshal & Manges LLP 767 Fifth Avenue
New York, NY 10153
Attn: Matt Barr; Michael Lubowitz; Nitin Konchady
Email: matt.barr@weil.com; michael.lubowitz@weil.com; nitin.konchady@weil.com