SECOND AMENDED AND RESTATED INCREMENTAL SUPER PRIORITY NOTE SUBSCRIPTION AGREEMENT
This SECOND AMENDED AND RESTATED INCREMENTAL SUPER PRIORITY NOTE SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on April 29, 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 “First 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 Second Amended and Restated Note;
WHEREAS, on January 19, 2024, the Loan Parties and the Holder entered into an amended and restated incremental super priority note subscription agreement (the “First Amended and Restated Incremental Subscription Agreement”), pursuant to which the Borrower issued, and the Holder subscribed for, (i) a third amended and restated super priority secured promissory note with an aggregate principal amount of $23,941,032.31 (the “Third Amended and Restated Note”), which replaced the Second Amended and Restated Note, and (ii) a fourth amended and restated super priority secured promissory note, dated February 7, 2024, with an aggregate principal amount of $40,303,393.49 (the “Fourth Amended and Restated Note”), which replaced the Third 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 First Amended and Restated Incremental Subscription Agreement (which shall, together with any of the Holder’s and the Loan Parties’ commitments thereunder, be terminated and no longer be in effect as of the date hereof, expect as set forth in Section 8(s) below) 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 Fourth 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.
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:
Section 4. Holder Representations and Warranties. The Holder represents and warrants to the Loan Parties that:
Section 5. Covenants.
(i) to the extent required by the federal securities laws, rules or regulations (subject to Commission request as provided in clause (ii) in the case of federal securities laws), (ii) to the extent such disclosure is required by other laws, rules or regulations, in each case, at the request of the staff of the Commission or regulatory agency or under NYSE regulations or (iii) to the extent such announcements or other communications contain only information previously disclosed in a public statement, press release or other communication previously approved in accordance with this Section 5(f) ; provided that, in the case of (i) and (ii), the Loan Parties shall provide the Holder with reasonable prior written notice of such permitted disclosure, and shall reasonably consult with the Holder regarding such disclosure. The Holder will promptly provide any information reasonably requested by the Borrower or any of its affiliates for any regulatory application or filing made or to be made or approval sought in connection with the Transactions (including filings with the Commission).
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.
Schedule I
NOTICES
Loan Parties
Getaround, Inc. 55 Green Street
San Francisco, California 94111
Attn: Tom Alderman; Spencer Jackson
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
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
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
[Signature Page to Subscription Agreement]
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/ EDUARDO INIGUEZ
Name: Eduardo Iniguez
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: Manager
HYRECAR LLC
By: Getaround, Inc., its Sole Member
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 NEW 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.
FIFTH AMENDED AND RESTATED SUPER PRIORITY SECURED PROMISSORY NOTE
$61,677,504.04 | April 29, 2024 |
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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(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
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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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[SUPER PRIORITY SECURED PROMISSORY NOTE]
IN WITNESS WHEREOF, the undersigned have executed this Note as of the date first written above.
GETAROUND, INC.,
as the Borrower
By:
Name:
Title:
[FORM OF SUPER PRIORITY NOTE]
[SUPER PRIORITY SECURED PROMISSORY NOTE]
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
[FORM OF SUPER PRIORITY NOTE]
[SUPER PRIORITY SECURED PROMISSORY NOTE]
SCHEDULE I
NOTICES
Borrower
Getaround, Inc.
55 Green Street
San Francisco, California 94111
Attn: Tom Alderman; Spencer Jackson
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
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
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