US-DOCS\145063127.6 CAN_DMS: \1001226907 THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT OR AGREEMENT IS SUBJECT TO THE AMENDED AND RESTATED SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF SEPTEMBER 19, 2023, BY AND AMONG, INTER ALIA, MIDCAP...
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US-DOCS\145063127.6 CAN_DMS: \1001226907 THE INDEBTEDNESS EVIDENCED BY THIS INSTRUMENT OR AGREEMENT IS SUBJECT TO THE AMENDED AND RESTATED SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF SEPTEMBER 19, 2023, BY AND AMONG, INTER ALIA, MIDCAP FINANCIAL TRUST AND U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION AND ACKNOWLEDGED BY BIRD GLOBAL, INC., BIRD RIDES INC., BIRD US OPCO, LLC, BIRD US HOLDCO, LLC, BIRD RIDES INTERNATIONAL HOLDING, INC. AND BIRD CANADA SCOOTERS INC. AMENDED AND RESTATED PLEDGE AND COLLATERAL AGREEMENT dated as of September 19, 2023, among BIRD GLOBAL, INC., as Issuer, BIRD RIDES, INC., as Bird Rides, the other Note Parties party hereto, as Grantors, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Collateral Agent
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-iii- US-DOCS\145063127.6 CAN_DMS: \1001226907 Schedules Schedule I Pledged Equity Interests; Pledged Debt Securities Schedule II Intellectual Property Schedule III Grantor Information Schedule IV Commercial Tort Claims Exhibits Exhibit I Form of Copyright Security Agreement Exhibit II Form of Patent Security Agreement Exhibit III Form of Trademark Security Agreement
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US-DOCS\145063127.6 CAN_DMS: \1001226907 AMENDED AND RESTATED PLEDGE AND COLLATERAL AGREEMENT dated as of September 19, 2023 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) among Bird Global, Inc. (“Issuer”), Bird Rides, Inc., a Delaware corporation (“Bird Rides”), certain Affiliates of the Issuer party hereto (collectively, together with the Issuer and Bird Rides, the “Grantors”), and U.S. Bank Trust Company, National Association as collateral agent on behalf of the Secured Parties (in such capacity, the “Collateral Agent”). Reference is made to (i) that certain Note Purchase Agreement dated as of December 30, 2022 between the Issuer, the Purchasers party thereto and the Collateral Agent, as amended by a First Amendment dated March 17, 2022 and amended and restated by a Second Amendment dated as of September 19, 2023 (as further amended, supplemented, or modified from time to time, the “Note Purchase Agreement”), (ii) those certain Guarantees, each dated as of December 30, 2022 made by each of the Issuer, Bird Rides, Bird US Holdco, LLC and Bird US Opco, LLC, each in favor of the Collateral Agent (as amended, amended and restated, supplemented or modified from time to time, the “Existing Guarantees”). WHEREAS, each Grantor party hereto is an Affiliate of the Issuer and has guaranteed the obligations of Issuer under the Note Purchase Agreement pursuant to the Amended and Restated Guarantee dated as of the date hereof (as amended, supplemented or modified from time to time, the “Guarantee”); and WHEREAS, each Grantor will derive substantial benefits from the extension of credit to the Issuer pursuant to the Note Purchase Agreement and is willing to execute and deliver this Agreement in order to induce the Purchasers to enter into that certain Second Amendment. Furthermore, the Existing Grantor wishes to amend, restate, supersede and replace the collateral and security terms of the Existing Guarantees in their entirety by the terms and provisions of this Agreement. It is the intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under the collateral and security terms of the Existing Guarantees or the Note Purchase Agreement, but that this Agreement amend and restate in its entirety the collateral and security terms of the Existing Guarantees and re-evidence the obligations and liabilities of each existing Grantor outstanding thereunder and the additional Grantors, all of which shall be set forth in accordance with the terms hereof. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE I Definitions SECTION 1.01. Defined Terms. (a) Each capitalized term used but not defined herein shall have the meaning assigned thereto in the Note Purchase Agreement; provided that each term defined in the New York UCC (as defined herein) and not defined in this Agreement or the Note Purchase Agreement shall have the meaning specified in the New York UCC. The term “instrument” shall have the meaning specified in Article 9 of the New York UCC. (b) The rules of construction specified in the Note Purchase Agreement also apply to this Agreement, mutatis mutandis. SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms have the meanings specified below: “Account Debtor” means any Person that is or may become obligated to any Grantor under, with respect to or on account of an Account, Chattel Paper or General Intangible.
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-2- US-DOCS\145063127.6 CAN_DMS: \1001226907 “Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Article 9 Collateral” has the meaning assigned to such term in Section 3.01. “Bird Canada Collateral Release Event” means the delivery by the Issuer or Bird Rides to the Senior Financing Agent of a written notice and evidence reasonably satisfactory to the Collateral Agent that Issuer shall have received no less than $9,600,000 of cash and Cash Equivalents from the proceeds from the issuance of its equity interests or Notes (other than Disqualified Equity Interests) on or before December 31, 2023. “Bird Rides” has the meaning assigned to such term in the preamble to this Agreement. “CFC” means any Person that is a “controlled foreign corporation” within the meaning of Section 957 of the Code. “Collateral” means Article 9 Collateral and Pledged Collateral. “Collateral Agent” has the meaning assigned to such term in the preamble to this Agreement. “Copyright License” means any written agreement, now or hereafter in effect, granting to any Person any right under any Copyright now or hereafter owned by any other Person or that such other Person otherwise has the right to license, and all rights of any such Person under any such agreement. “Copyright Security Agreement” means the short-form Copyright Security Agreement substantially in the form of Exhibit I hereto. “Copyrights” means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all copyright rights in any work subject to the copyright laws of the United States or any other country or jurisdiction, whether as author, assignee, transferee or otherwise; (b) all registrations and applications for registration of any such copyrights in the United States, including registrations, supplemental registrations and pending applications for registration in the United States Copyright Office, including those set forth on Schedule II hereto; and (c) all claims for, and rights to sue for, past or future infringements of any of the foregoing. “Deposit Account Control Agreement” means, with respect to any Deposit Account con- stituting Collateral of any Grantor, a control agreement or similar agreement, in form and substance rea- sonably satisfactory to the Collateral Agent, among such Grantor, the bank or other financial institution that maintains such Deposit Account and the Collateral Agent with respect to the Collateral Agent’s control of such Deposit Account. “Deposit Accounts” shall have the meaning set forth in Article 9 of the UCC. “Domestic Subsidiary” means any Subsidiary organized under the laws of any political subdivision of the United States. "Dutch Pledge" means the deed of pledge over registered shares in the capital of Bird Rides Europe B.V., by Bird Rides International Holding, Inc. as pledgor, Bird Rides Europe B.V. as company and the Collateral Agent as pledgee.
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-3- US-DOCS\145063127.6 CAN_DMS: \1001226907 “Excluded Accounts” means (i) Deposit Accounts used exclusively for trust, payroll, taxes and other employee wage or employee benefit payments to or for the benefit of any Grantor’s employees, (ii) Deposit Accounts in which the amount on deposit does not exceed (a) for all Deposit Accounts, $100,000 in any single Deposit Account, and (b) for all Deposit Accounts, $500,000 in the aggregate in all such Deposit Accounts at any time for all Grantors, (iii) zero balance accounts and (iv) any fiduciary or trust accounts, in each case solely to the extent such accounts contain only amounts designated for fiduciary or trust liabilities to third parties. “Excluded Assets” means: (a) any assets of Skinny Labs, Inc., to the extent security interests in such assets are prohibited or restricted under the terms of that certain secured promissory note issued by Bird Rides to Tier Mobility SE, a company incorporated in Germany with registered number HRB 236551 B, on the date hereof (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9- 406, 9-407, 9-408, or 9-409 of the UCC (or any successor provision or provisions) so long as such restrictions or prohibitions are in effect, (b) at all times from and after the Bird Canada Collateral Release Event, Equity Interests in Bird Canada Scooters Inc., (c) any Equity Interest in a Foreign Subsidiary Holding Company or an Excluded Foreign Subsidiary in excess of 65% of the issued and outstanding Equity Interests of such Subsidiary entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)), and 100% of the issued and outstanding Equity Interests of such Subsidiary not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)), (d) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408, or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity, in each case, unless preempted) so long as such restrictions or prohibitions are in effect, (e) any lease, license or agreement or any property subject to such agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto or otherwise require consent thereunder (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9- 407, 9-408, or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity, in each case, unless preempted) so long as such restrictions or prohibitions are in effect and such lease, license or agreement was not entered into in contemplation of circumventing any obligation to secure the Secured Obligations, (f) any assets or property to the extent granting, creating or perfecting a pledge, security interest or Lien on such asset or property is prohibited or restricted by applicable law, order or regulation (including, without limitation, any requirement to obtain the consent or approval of any governmental authority or third Person); provided that the foregoing exclusions in this clause (f) shall in no way be construed to apply to the extent that the prohibition is unenforceable under Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity, in each case, unless preempted; provided, further, that the assets or property described in the foregoing clauses (d), (e), and (f) shall constitute “Excluded Assets” only to the extent and for so long as such applicable licenses, franchises, charters, authorizations, laws, orders or
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-4- US-DOCS\145063127.6 CAN_DMS: \1001226907 regulations validly prohibit the creation of a Lien on such asset or property in favor of Collateral Agent, or the grant of a security interest in such lease, license or agreement or such property subject to such agreement would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto or otherwise require consent thereunder, as applicable, and, upon the termination of such prohibition (by any manner), such property shall cease to constitute “Excluded Assets” under clause (b), (c), or (d) hereof, as applicable, (g) any asset or property with respect to which the Collateral Agent (at the direction of the Required Purchasers) and the applicable Grantor mutually determine that the costs of obtaining a security interest or Lien therein is excessive in relation to the practical benefit to the Secured Parties of the security afforded thereby, (h) any assets or property to the extent a security interest or Lien in such assets or property could reasonably be expected to result in materially adverse tax consequences, as reasonably determined by the applicable Grantor and the Collateral Agent (at the direction of the Required Purchasers), (i) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal law, (j) any assets or property not located in the United States that require action under the law of any jurisdiction not located in the United States to create or perfect a security interest or Lien in such asset or property, including any intellectual property registered in any non-United States jurisdiction (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-United States jurisdiction), (k) motor vehicles, airplanes, and other assets subject to certificates of title (excluding, for the avoidance of doubt, any electronic scooter vehicles or scooters), and (l) any particular asset or right under contract, if the pledge thereof or the security interest therein is prohibited or restricted by a third party (so long as any agreement with such third party that provides for such prohibition or restriction was not entered into in contemplation of the acquisition of such assets or for the purpose of creating such prohibition or restriction); provided, that the foregoing exclusions in this clause (m) shall in no way be construed to apply to the extent that the prohibition is unenforceable under Sections 9-406, 9-407, 9-408, or 9-409 of the UCC (or any successor provision or provisions) of any relevant jurisdiction or any other applicable law or principles of equity (in each case, unless preempted). “Excluded Foreign Subsidiary” means a Subsidiary of a Grantor that is: (a) a Foreign Subsidiary; or (b) owned directly or indirectly by a Foreign Subsidiary or by a Foreign Subsidiary Holding Company, irrespective of whether it is a Domestic Subsidiary or a Foreign Subsidiary. “Federal Securities Laws” has the meaning assigned to such term in Section 4.02. “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary. “Foreign Subsidiary Holding Company” means any direct or indirect Subsidiary of any Grantor, all or substantially all of the assets of which consist of, directly or indirectly, the Equity Interests in one or more CFCs and any of such CFCs’ Subsidiaries, and/or debt or accounts receivable owed by CFCs
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-5- US-DOCS\145063127.6 CAN_DMS: \1001226907 and/or such CFC’s Subsidiaries or are treated as owed by any such Subsidiaries for U.S. federal income tax purposes. “Grantors” means (i) Issuer, (ii) Bird Rides, (iii) Bird US Holdco, LLC, a Delaware corporation, (iv) Bird US Opco, LLC, a Delaware limited liability company, (v) Bird Rides International Holding, Inc., a Delaware corporation, (vi) Bird Treasury Holdco, LLC, a Delaware limited liability company, (vii) Scoot Rides, Inc., a Delaware corporation, (viii) Bird Rides Holdings (US), LLC, a Delaware limited liability company, and (ix) any other Subsidiary, whether now existing or hereafter formed or acquired, which becomes party to this Agreement from time to time in accordance with the terms hereof. “Intellectual Property” means, with respect to any Person, all intellectual property of every kind and nature, whether now or hereafter owned or licensed by any such Person, including inventions, designs, Patents, Copyrights, Trademarks and Licenses, trade secrets and know-how, domain names, confidential or proprietary technical, business or other information, and software and databases. “License” means any Patent License, Trademark License or Copyright License. “New York UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York. “Note Purchase Agreement” has the meaning assigned to such term in the preamble to this Agreement. “Patent License” means any written agreement, now or hereafter in effect, granting to any Person any right to manufacture, use or sell any invention claimed in a Patent, now or hereafter owned by any other Person or that any other Person now or hereafter otherwise has the right to license, and all rights of any such Person under any such agreement. “Patent Security Agreement” means the short-form Patent Security Agreement substantially in the form of Exhibit II hereto. “Patents” means, with respect to any Person, all of the following now owned or hereafter acquired by such Person: (a) all letters patent of the United States, and all applications for letters patent of the United States or any other country or jurisdiction, including those listed on Schedule II hereto; (b) all provisionals, reissues, extensions, continuations, divisions, continuations-in-part, reexaminations or revisions thereof, and the inventions disclosed or claimed therein; and (c) all claims for, and rights to sue for, past or future infringements of any of the foregoing. “Pledged Collateral” has the meaning assigned to such term in Section 2.01. “Pledged Debt Securities” has the meaning assigned to such term in Section 2.01. “Pledged Equity Interests” has the meaning assigned to such term in Section 2.01. “Pledged Securities” means any promissory notes, stock certificates, unit certificates, limited liability membership certificates or other securities (to the extent certificated) now or hereafter included in the Pledged Collateral. “Security Interest” has the meaning assigned to such term in Section 3.01(a).
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-18- US-DOCS\145063127.6 CAN_DMS: \1001226907 Without limiting the generality of the foregoing, each Grantor agrees that the Collateral Agent shall have the right, subject to the mandatory requirements of applicable law and the notice requirements described below, to sell or otherwise dispose of all or any part of the Collateral at a public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Collateral Agent shall deem appropriate. The Collateral Agent shall be authorized at any such sale of securities (if it deems it advisable to do so) to restrict the prospective bidders or purchasers to Persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummation of any such sale the Collateral Agent shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any sale of Collateral shall hold the property sold absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal that each Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall give the applicable Grantors no less than ten (10) days’ prior written notice (which each Grantor agrees is reasonable notice within the meaning of Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of the Collateral Agent’s intention to make any sale of Collateral; provided that no such notice shall be required for any sale of Collateral for which no notice is required under Section 9-611(d) of the New York UCC or its equivalent in other jurisdictions. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be made and the day on which the Collateral or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the Collateral Agent may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Collateral Agent may (at the direction of the Required Purchasers in their sole and absolute discretion) determine. The Collateral Agent shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Collateral Agent may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same was so adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Collateral Agent until the sale price is paid by the purchaser or purchasers thereof, but the Collateral Agent and the other Secured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or, to the extent permitted by law, private) sale made pursuant to this Agreement, any Secured Party may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of any Grantor (all said rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to such Secured Party from any Grantor as a credit against the purchase price, and such Secured Party may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to any Grantor therefor. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Agent (at the direction of the Required Purchasers) may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the provisions of this Section 4.01 shall be deemed to conform to the commercial reasonableness standards as provided in Section 9-610(b) of the New York UCC or its equivalent in other jurisdictions.
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-25- US-DOCS\145063127.6 CAN_DMS: \1001226907 Agreement or the priority thereof. The Grantors are entering into this Agreement in order to induce the Purchasers to enter into the Second Amendment. [Remainder of Page Intentionally Left Blank]
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[Signature Page to Pledge and Collateral Agreement] IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. BIRD GLOBAL, INC., as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer BIRD RIDES, INC., as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer BIRD US HOLDCO, LLC, as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer BIRD US OPCO, LLC, as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer BIRD TREASURY HOLDCO, LLC, as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer SCOOT RIDES, INC., as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer
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[Signature Page to Pledge and Collateral Agreement] BIRD RIDES HOLDING (US), LLC, as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Manager BIRD RIDES INTERNATIONAL HOLDING, INC. as Grantor By: /s/ Xxxxxxx Xxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxx Title: Chief Interim Executive Officer
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[Signature Page to Pledge and Collateral Agreement] U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION as Collateral Agent By: /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Vice President